Existing law generally requires a sexually violent predator who is conditionally released to be placed in the county that was the persons county of domicile prior to the persons incarceration. Existing law provides for placement outside of the county of domicile if specified circumstances exist. Existing law specifies certain information to be considered in determining the county of domicile, and provides that if that information cannot be identified or verified, that the county of domicile is the county in which the person was arrested for the crime for which he or she was last incarcerated in the state prison or from which he or she was last returned from parole.

This bill would require the court to consider additional factors when determining the county of placement that is not the county of domicile, including if and how long the person has previously resided or been employed in the county and if the person has next of kin in the county.

Existing law generally requires a sexually violent predator who is conditionally released to be placed in the county that was the persons county of domicile prior to the persons incarceration. Existing law provides for placement outside of the county of domicile if specified circumstances exist. Existing law specifies certain information to be considered in determining the county of domicile, and provides that if that information cannot be identified or verified, that the county of domicile is the county in which the person was arrested for the crime for which he or she was last incarcerated in the state prison or from which he or she was last returned from parole.

This bill would require the court to consider additional factors when determining the county of placement that is not the county of domicile, including if and how long the person has previously resided or been employed in the county and if the person has next of kin in the county.

Existing law generally requires a sexually violent predator who is conditionally released to be placed in the county that was the persons county of domicile prior to the persons incarceration. Existing law provides for placement outside of the county of domicile if specified circumstances exist. Existing law specifies certain information to be considered in determining the county of domicile, and provides that if that information cannot be identified or verified, that the county of domicile is the county in which the person was arrested for the crime for which he or she was last incarcerated in the state prison or from which he or she was last returned from parole.

This bill would require the court to consider additional factors when determining the county of placement that is not the county of domicile. The bill would also provide that if consideration of those factors does not identify a suitable county for conditional release that is not the county of domicile, the county of conditional release is the county in which the person was arrested for the crime for which he or she was last incarcerated in the state prison or from which he or she was last returned from parole. domicile, including if and how long the person has previously resided or been employed in the county and if the person has next of kin in the county.

Existing law generally requires a sexually violent predator who is conditionally released to be placed in the county that was the persons county of domicile prior to the persons incarceration. Existing law provides for placement outside of the county of domicile if specified circumstances exist. Existing law specifies certain information to be considered in determining the county of domicile, and provides that if that information cannot be identified or verified, that the county of domicile is the county in which the person was arrested for the crime for which he or she was last incarcerated in the state prison or from which he or she was last returned from parole.

This bill would require the court to consider additional factors when determining the county of placement that is not the county of domicile. The bill would also provide that if consideration of those factors does not identify a suitable county for conditional release that is not the county of domicile, the county of conditional release is the county in which the person was arrested for the crime for which he or she was last incarcerated in the state prison or from which he or she was last returned from parole.

 CONSENT  

Bill No: AB 255

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/13/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

ASSEMBLY FLOOR: 74-0, 4/20/17 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill specifies that courts must consider the connections to the community when designating the placement of a sexually violent predator (SVP) in a county for conditional release. Specifically, the court shall consider if and how long the person has previously resided or been employed in the county; and if the person has next of kin in the county.

ANALYSIS:

Existing law:

1. Provides that notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which sex offender registration is required, that person may not during the period of parole, reside in any single family dwelling with any other person also required to register as a convicted sex offender, unless those persons are legally related by blood. "Single family dwelling" shall not include a residential facility that serves six or fewer persons. (Penal Code § 3003.5 (a).)
   
2. States notwithstanding any other provision of law, it is unlawful for any person for whom sex offender registration is required to reside within 2,000 feet of any public or private school, or park where children regularly gather. (Penal Code § 3003.5 (b).)
   
3. Provides for the civil commitment for psychiatric and psychological treatment of a prison inmate found to be a SVP after the person has served his or her prison commitment. (Welfare & Institutions Code § 6600 et seq.)
   
4. Defines a "sexually violent predator" as "a person who has been convicted of a sexually violent offense against at least one victim, and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welfare & Institutions Code, § 6600 (a)(1).)
   
5. Permits a person committed as a SVP to be held for an indeterminate term upon commitment. (Welfare & Institutions Code § 6604.1.)
   
6. Requires that a person found to have been a SVP and committed to the Department of State Hospitals (DSH) have a current examination on his or her mental condition made at least yearly. The report shall include consideration of conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and also what conditions can be imposed to adequately protect the community. (Welfare & Institutions Code § 6604.9.)
   
7. Allows a SVP to seek conditional release with the authorization of the Director DSH when DSH determines that the person's condition has so changed that he or she no longer meets the SVP criteria, or when conditional release is in the person's best interest and conditions to adequately protect the public can be imposed. (Welfare & Institutions Code § 6607.)
   
8. Allows a person committed as a SVP to petition for conditional release or an unconditional discharge any time after one year of commitment, notwithstanding the lack of recommendation or concurrence by the Director of DSH. (Welfare & Institutions Code § 6608 (a).)
   
9. Provides that, if the court deems the conditional release petition not frivolous, the court is to give notice of the hearing date to the attorney designated to represent the county of commitment, the retained or appointed attorney for the committed person, and the Director of State Hospitals at least 30 court days before the hearing date. (Welfare & Institutions Code, § 6608 (b).)

1. Requires the court to first obtain the written recommendation of the director of the treatment facility before taking any action on the petition for conditional release if the petition is made without the consent of the director of the treatment facility. (Welfare & Institutions Code § 6608 (c).)
2. Provides that the court shall hold a hearing to determine whether the person committed would be a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community. Provides that the attorney designated the county of commitment shall represent the state and have the committed person evaluated by experts chosen by the state and that the committed person shall have the right to the appointment of experts, if he or she so requests. (Welfare & Institutions Code § 6608 (e).)
3. Requires the court to order the committed person placed with an appropriate forensic conditional release program operated by the state for one year if the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community. Requires a substantial portion of the state-operated forensic conditional release program to include outpatient supervision and treatment. Provides that the court retains jurisdiction of the person throughout the course of the program. (Welfare & Institutions Code § 6608 (e).)
4. Provides that if the court denies the petition to place the person in an appropriate forensic conditional release program, the person may not file a new application until one year has elapsed from the date of the denial. (Welfare & Institutions Code § 6608 (h)
5. Allows, after a minimum of one year on conditional release, the committed person, with or without the recommendation or concurrence of the Director of State Hospitals, to petition the court for unconditional discharge, as specified. (Welfare & Institutions Code § 6608 (k).)

This bill provides that if the court determines that placement of an SVP in his or her county of domicile is not appropriate then before placing in another county for conditional release the court shall consider if and how long the person has previously resided or been employed in the county and if the person has next of kin in that county.

Background

According to the author:

The Sexually Violent Predator (SVP) Program is for offenders who have been convicted of a sexually violent offense against one or more victims and who have a diagnosed mental disorder that makes them likely to reoffend and a danger to the health and safety of others.

The Program requires SVPs to be admitted to the State Hospital for rehabilitation following the completion of their prison sentence. Offenders who complete hospital treatment are conditionally released back into the community where they are monitored and continue to receive counseling.

Current law requires individuals who are conditionally released to be placed in the “county of domicile”. When determining domicile, the court may look at an individual’s driver’s license, ID card, utility receipt etc. (WIC §6608.5 (b)). If no information can be verified, the county of domicile is the county of arrest. Additionally, the court is allowed to place an SVP outside of the county of domicile under “extraordinary circumstances” (WIC §6608.5 (a)(1)).

SVPs are very dangerous serial criminals such as Christopher Hubbart, the “pillowcase rapist” who assaulted 40 women between 1971 and 1983. In 2014, Hubbart was placed in a home in a rural area of Palmdale, after a Santa Clara County Superior Court Judge determined his “domicile” to be Los Angeles County. Hubbart’s release resulted in legislation (AB 1607) allowing counties of potential placement to be given notice and an opportunity to be heard in court.

However, this legislation has not done enough to discourage placement of these offenders in counties where they have no connections.

• In 2016, DSH recommended placement of Fraisure Smith from Solano County in Butte and Yuba counties even though he had no family or connections in these communities.
• In 2017, DSH placed Monterey County SVP Eldridge Lindsey Chaney in a home in rural Yuba County.
• In 2017, DSH recommended placement of San Francisco SVP Luther Evans in San Bernardino County.
• In 2017, DSH recommended placement of Santa Clara SVP Dariel Shazier in Placer County.

AB 255 would require a court to consider where the SVP was living prior to being arrested when determining their county of domicile, which under current law is the first option for county of conditional release. If extraordinary circumstances require placement outside the county of domicile, AB 255 would require the court to place the individual in a county where they have familial, residential, or employment connections.

Individuals who are conditionally released under the Sexually Violent Predator Program should be placed in counties where they have some connection. Unfortunately, SVPs are disproportionately placed in rural counties, which already face their own unique public safety challenges. Moreover, it is much harder for offenders to be rehabilitated in communities where they are complete outsiders. AB 255 enhances judicial discretion by requiring the court to consider additional factors when offenders cannot be placed in their county of domicile.

If it is not possible to place an offender in the county of domicile, AB 255 would require placement in a county where the individual has family, employment, or residential ties.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/13/17)

Butte County Board of Supervisors

California Police Chiefs Association

California Probation, Parole and Correctional Association

California State Sheriffs’ Association

Judicial Council

Placer County Board of Supervisors

Rural County Representatives of California

San Bernardino County

Sutter County District Attorney’s Office

Yuba County Board of Supervisors

Yuba County Sheriff’s Department

OPPOSITION: (Verified 6/13/17)

None received

ASSEMBLY FLOOR: 74-0, 4/20/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Brough, Choi, Gallagher, Mathis, Patterson, Ridley-Thomas

Prepared by:

6/14/17 15:44:53

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 255 Hearing Date: June 13, 2017

Subject: Sexually Violent Predators: Out-of-County Placement

HISTORY

Source: Author

Prior Legislation: AB 262 (Lackey) Failed Assembly Public Safety 2015

AB 1607 (Fox) Chapter 877, Stats.2014

AB 768 (Achadjian) not heard Assembly Public Safety 2013

Support: Butte County Board of Supervisors; California Probation, Parole and Correctional Association; California Police Chiefs Association; California State Sheriffs’ Association; Judicial Council; Placer County Board of Supervisors; Rural County Representatives of California; San Bernardino County; Sutter County District Attorney’s Office; Yuba County Board of Supervisors; Yuba County Sheriff’s Department

Opposition: None known

Assembly Floor Vote: 74 - 0

PURPOSE

The purpose of this bill is to specify that courts must consider the connections to the community when designating the placement of a sexually violent predator (SVP) in a county for conditional release. Specifically, the court shall consider if and how long the person has previously resided or been employed in the county; and if the person has next of kin in the county.

Existing law provides that notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which sex offender registration is required, that person may not during the period of parole, reside in any single family dwelling with any other person also required to register as a convicted sex offender, unless those persons are legally related by blood. "Single family dwelling" shall not include a residential facility that serves six or fewer persons. (Penal Code § 3003.5 (a).)

Existing law states notwithstanding any other provision of law, it is unlawful for any person for whom sex offender registration is required to reside within 2,000 feet of any public or private school, or park where children regularly gather. (Penal Code § 3003.5 (b).)

Existing law provides for the civil commitment for psychiatric and psychological treatment of a prison inmate found to be a SVP after the person has served his or her prison commitment. (Welfare & Institutions Code § 6600 et seq.)

Existing law defines a "sexually violent predator" as "a person who has been convicted of a sexually violent offense against at least one victim, and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welfare & Institutions Code, § 6600 (a)(1).)

Existing law permits a person committed as a SVP to be held for an indeterminate term upon commitment. (Welfare & Institutions Code § 6604.1.)

Existing law requires that a person found to have been a SVP and committed to the Department of State Hospitals (DSH) have a current examination on his or her mental condition made at least yearly. The report shall include consideration of conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and also what conditions can be imposed to adequately protect the community. (Welfare & Institutions Code § 6604.9.)

Existing law allows a SVP to seek conditional release with the authorization of the Director DSH when DSH determines that the person's condition has so changed that he or she no longer meets the SVP criteria, or when conditional release is in the person's best interest and conditions to adequately protect the public can be imposed. (Welfare & Institutions Code § 6607.)

Existing law allows a person committed as a SVP to petition for conditional release or an unconditional discharge any time after one year of commitment, notwithstanding the lack of recommendation or concurrence by the Director of DSH. (Welfare & Institutions Code § 6608 (a).)

Existing law provides that, if the court deems the conditional release petition not frivolous, the court is to give notice of the hearing date to the attorney designated to represent the county of commitment, the retained or appointed attorney for the committed person, and the Director of State Hospitals at least 30 court days before the hearing date. (Welfare & Institutions Code, § 6608 (b).)

Existing law requires the court to first obtain the written recommendation of the director of the treatment facility before taking any action on the petition for conditional release if the petition is made without the consent of the director of the treatment facility. (Welfare & Institutions Code § 6608 (c).)

Existing law provides that the court shall hold a hearing to determine whether the person committed would be a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community. Provides that the attorney designated the county of commitment shall represent the state and have the committed person evaluated by experts chosen by the state and that the committed person shall have the right to the appointment of experts, if he or she so requests. (Welfare & Institutions Code § 6608 (e).)

Existing law requires the court to order the committed person placed with an appropriate forensic conditional release program operated by the state for one year if the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community. Requires a substantial portion of the state-operated forensic conditional release program to include outpatient supervision and treatment. Provides that the court retains jurisdiction of the person throughout the course of the program. (Welfare & Institutions Code § 6608 (e).)

Existing law provides that if the court denies the petition to place the person in an appropriate forensic conditional release program, the person may not file a new application until one year has elapsed from the date of the denial. (Welfare & Institutions Code § 6608 (h)

Existing law allows, after a minimum of one year on conditional release, the committed person, with or without the recommendation or concurrence of the Director of State Hospitals, to petition the court for unconditional discharge, as specified. (Welfare & Institutions Code § 6608 (k).)

This bill provides that if the court determines that placement of an SVP in his or her county of domicile is not appropriate then before placing in another county for conditional release the court shall consider if and how long the person has previously resided or been employed in the county and if the person has next of kin in that county.

COMMENTS

1. Need for This Bill

According to the author:

The Sexually Violent Predator (SVP) Program is for offenders who have been convicted of a sexually violent offense against one or more victims and who have a diagnosed mental disorder that makes them likely to reoffend and a danger to the health and safety of others.

The Program requires SVPs to be admitted to the State Hospital for rehabilitation following the completion of their prison sentence. Offenders who complete hospital treatment are conditionally released back into the community where they are monitored and continue to receive counseling.

Current law requires individuals who are conditionally released to be placed in the “county of domicile”. When determining domicile, the court may look at an individual’s driver’s license, ID card, utility receipt etc. (WIC §6608.5 (b)). If no information can be verified, the county of domicile is the county of arrest. Additionally, the court is allowed to place an SVP outside of the county of domicile under “extraordinary circumstances” (WIC §6608.5 (a)(1)).

SVPs are very dangerous serial criminals such as Christopher Hubbart, the “pillowcase rapist” who assaulted 40 women between 1971 and 1983. In 2014, Hubbart was placed in a home in a rural area of Palmdale, after a Santa Clara County Superior Court Judge determined his “domicile” to be Los Angeles County. Hubbart’s release resulted in legislation (AB 1607) allowing counties of potential placement to be given notice and an opportunity to be heard in court.

However, this legislation has not done enough to discourage placement of these offenders in counties where they have no connections.

• In 2016, DSH recommended placement of Fraisure Smith from Solano County in Butte and Yuba counties even though he had no family or connections in these communities.
• In 2017, DSH placed Monterey County SVP Eldridge Lindsey Chaney in a home in rural Yuba County.
• In 2017, DSH recommended placement of San Francisco SVP Luther Evans in San Bernardino County.
• In 2017, DSH recommended placement of Santa Clara SVP Dariel Shazier in Placer County.

AB 255 would require a court to consider where the SVP was living prior to being arrested when determining their county of domicile, which under current law is the first option for county of conditional release. If extraordinary circumstances require placement outside the county of domicile, AB 255 would require the court to place the individual in a county where they have familial, residential, or employment connections.

Individuals who are conditionally released under the Sexually Violent Predator Program should be placed in counties where they have some connection. Unfortunately, SVPs are disproportionately placed in rural counties, which already face their own unique public safety challenges. Moreover, it is much harder for offenders to be rehabilitated in communities where they are complete outsiders. AB 255 enhances judicial discretion by requiring the court to consider additional factors when offenders cannot be placed in their county of domicile.

If it is not possible to place an offender in the county of domicile, AB 255 would require placement in a county where the individual has family, employment, or residential ties.

2. SVP Law Generally

The Sexually Violent Predator Act (SVPA) establishes an extended civil commitment scheme for sex offenders who are about to be released from prison, but are referred to the DSH for treatment in a state hospital, because they have suffered from a mental illness which causes them to be a danger to the safety of others.

The Department of State Hospitals uses specified criteria to determine whether an individual qualifies for treatment as a SVP. Under existing law, a person may be deemed a SVP if: (a) the defendant has committed specified sex offenses against two or more victims; (b) the defendant has a diagnosable mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually-violent criminal behavior; and, (3)

two licensed psychiatrists or psychologists concur in the diagnosis. If both clinical evaluators find that the person meets the criteria, the case is referred to the county district attorney who may file a petition for civil commitment.

Once a petition has been filed, a judge holds a probable cause hearing; and if probable cause if found, the case proceeds to a trial at which the prosecutor must prove to a jury beyond a reasonable doubt that the offender meets the statutory criteria. The state must prove “[1] a person who has been convicted of a sexually violent offense against [at least one] victim[] and [2] who has a diagnosed mental disorder that [3] makes the person a danger to the health and safety of others in that it is likely that he or she will engage in [predatory] sexually violent criminal behavior.” (Cooley v. Superior Court (Martinez) (2002) 29 Cal.4th 228, 246.) If the prosecutor meets this burden, the person then can be civilly committed to a DSH facility for treatment.

The Department of State Hospitals must conduct a yearly examination of a SVP's mental condition and submit an annual report to the court. This annual review includes an examination by a qualified expert. (Welf. & Inst. Code, § 6604.9.) In addition, DSH has an obligation to seek judicial review any time it believes a person committed as a SVP no longer meets the criteria, not just annually. (Welf. & Inst. Code, § 6607.)

The SVPA was substantially amended by Proposition 83 (“Jessica's Law”), which became operative on November 7, 2006. Originally, a SVP commitment was for two years; but now, under Jessica's Law, a person committed as a SVP may be held for an indeterminate term upon commitment or until it is shown that the defendant no longer poses a danger to others. (See People v. McKee (2010) 47 Cal. 4th 1172, 1185-1187.) Jessica's Law also amended the SVPA to make it more difficult for SVPs to petition for less restrictive alternatives to commitment. These changes have survived due process, ex post facto, and, more recently, equal protection challenges. (See People v. McKee, supra, 47 Cal. 4th 1172 and People v. McKee (2012) 207 Cal.App.4th 1325.) The standards and procedures for conditional release proceedings were changed by SB 295 (Emmerson) Ch. 182, Stats. 2013.

3. Standards and Procedures under which an SVP Patient can Obtain Conditional or Unconditional Release

A person committed as a SVP may petition the court for conditional release or unconditional discharge after one year of commitment. (Welf. & Inst. Code, § 6608, subd. (a).) The petition can be filed with or without the concurrence of the Director of State Hospitals. The director's concurrence or lack thereof does, however, make a difference in the process used.

A SVP can, with the concurrence of the Director of State Hospitals, petition for unconditional discharge if the patient “no longer meets the definition of a SVP,” or if he can be safely and conditionally released under supervision (Welf. & Inst. Code § 6604.9, subd. (d).)

When SVP patient then files a petition for unconditional release the court orders a show cause hearing. (Welf. & Inst. Code § 6604.9, subd. (f).)^[1] If probable cause is found, the patient thereafter has a right to a jury trial and is entitled to relief unless the district attorney proves “beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent behavior if discharged.” (Welf. & Inst. Code § 6605.) If the SVP patient has filed a petition for conditional release, the court employs the procedures set out in Section 6608 for hearings on conditional release

A committed person may also petition for conditional release and eventual unconditional discharge notwithstanding the lack of recommendation or concurrence by the Director of State Hospitals. (Welf. & Inst. Code, § 6608, subd. (a).) The court “shall endeavor whenever possible to review the petition [filed without the concurrence of DSH] and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing.” (Welf. & Inst. Code, § 6608, subd. (a).)^[2] If the petition is not found to be frivolous, the court shall hold a hearing to determine if the person can be safely released under supervision. (People v. Smith (2013) 216 Cal.App.4th 947.)

The SVPA does not define the term “frivolous.” The courts have applied the definition of the term stated in Code of Civil Procedure Section 128.5, subdivision (b)(2): “totally and completely without merit” or “for the sole purpose of harassing an opposing party.” (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1411; see also People v. McKee, supra, 47 Cal.4th 1172; People v. Collins (2003) 110 Cal.App.4th 340, 349.) Additionally, in Reynolds, supra, 181 Cal.App.4th at p. 1407, the court interpreted Welfare and Institutions Code section 6608 to require the petitioner to allege facts in the petition that will show he or she is not likely to engage in sexually-violent criminal behavior due to a diagnosed mental disorder, without supervision and treatment in the community, since that is the relief requested.

Once the court sets the hearing on the petition, then the petitioner is entitled to both the assistance of counsel, and the appointment of an expert. (People v. McKee, supra, 47 Cal.4th 1172, 1193.) At the hearing, the person petitioning for release has the burden of proof by a preponderance of the evidence if DSH does not agree that the person can be safely released under supervision If DSH concurs with the petition – agreeing that he can be conditionally released under supervision that would protect the public, the SVP patient has the burden of proof. (Welf. & Inst. Code, § 6608, subd. (i); People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1503.) If the petition is denied, the SVP may not file a subsequent petition until one year from the date of the denial. (Welf. & Inst. Code, § 6608, subd. (h).)

4. Finding Housing for an SVP

This bill provides that a person adjudicated as an SVP shall only be placed in a county, other that the county of domicile, after the court considers if the person has previously resided or been employed in the county or if the person has a relative in the county. This may prevent an SVP from residing in a rural area, and rural locations, often, are the only areas where an SVP can find a residence which complies with "Jessica's Law", which prohibits a person required to register as a convicted sex offender from residing within 2,000 feet of a public or private school, or park where children regularly congregate.

Liberty Health Care, the contract provider for DSH, can often find it difficult to find suitable housing for an SVP on conditional release in the community. In the case of People v. Superior Court (Karsai) (2013) 213 Cal App 4^th 774, Liberty Health Care reported that its staff had travelled 6,793 miles in one year searching for a residence for Karsai and had viewed 1,261 properties in Santa Barbara, Ventura, and San Luis Obispo Counties. The only potential residence was Karsai's mother's home in Santa Maria, and the Court determined that Karsai's mother's home was not disqualified as a potential residence despite its proximity to a park and an elementary school. Later, Liberty informed the court that the Karsai family had withdrawn his mother's home as a placement/residence site because the family had been beset upon by the local media.

The court then found that "extraordinary circumstances existed, justifying a search for 'any' available housing "without being constrained to San Luis Obispo or Santa Barbara County." Approximately five months later, Liberty had reviewed more than 1,830 sites and had identified two possible locations: an apartment in Sacramento and a small home in Auburn. At a hearing, both the People and Karsai objected to the locations. The People objected due to the proximity of Karsai's victims, and both sides objected "on the basis that the placement would provide no support structure for Mr. Karzai". Agreeing that it would be "fruitless" to pursue those placements, the court ordered Liberty to check into the option of placing Karzai in a travel trailer on a pad next to the San Luis Obispo County Sheriff's Office. Liberty shortly informed the court that there had been objections to Karzai's placement in a trailer and that the pad was "not Jessica's law compliant. Because it appeared to the court that "there was no suitable placement available either in Mr. Karsai's county of domicile, or elsewhere," the court ordered Karsai be "released in Santa Barbara County as a transient." Santa Barbara then sought a writ of mandate in the court of appeal, seeking to vacate the superior court's order releasing Karsai into Santa Barbara as a transient.

The court eventually ruled that nothing in the law forbids the conditional release of an SVP as a transient. "Moreover, to imply such imply such a limitation into the law would raise serious constitutional issues. 'Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections.' (People v. Otto (2001) 26 Cal.4^th 200, 209 [109 Cal. Rptr. 2d 327, 26 P.3d 1061].) Once a court has determined that a particular SVP would not be a danger to the health and safety of others in that it is not likely that he or she would engage in sexually violent criminal [*789] behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community, that person unquestionably has a significant liberty interest in being released. To authorize an unspecified delay in that release by implying in the SVPA a requirement that the person must have a specific resident before release, when under the statutory scheme the securing of a specific residence is not a prerequisite to a finding that the person would pose no danger to others if under outpatient supervision and treatment, would run the risk that a person who is no longer dangerous will nonetheless have to remain in custody in a secure facility indefinitely simply because of some [***28] extraneous factor, such as public outrage, that interferes with finding and securing a fixed residence for that person. To avoid such a potential due process problem, we believe the more prudent—as well as that most consistent with the established canons of statutory interpretation—is to not imply in the SVPA something the Legislature did not expressly include in it: the limitation that an SVP cannot be conditionally released in the community without a specific residence."

If this bill becomes law, in some cases it may be impossible to place SVP's in a compliant residence in the community; the courts could be compelled to release SVP's in the community as transients, which would present a risk to the public safety, as they would not be under the watchful eye of Liberty Health Care. A compliant and stable residence can help assure that these SVP’s do not recidivate.

5. Argument in Support

The California State Sheriffs’ Association supports this bill stating:

Existing statute establishes the Sexually Violent Predator Program (SVP). This program is for offenders who have been convicted of a sexually violent offense against one or more victims and how have a diagnosed mental disorder that makes them likely to reoffend and a danger to the health and safety of others. The program requires SVPs to be admitted to the State Hospital for rehabilitation following the completion of their prison sentence. Offenders who complete hospital treatment are conditionally released back into the community where they are monitored and continue to receive counseling.

Recent cases have revealed that SVPs are being placed in counties, often rural, where they have no familial, residential, or employment connections. Placement without these considerations can make it difficult to compel these dangerous serial criminals to receive the mandatory, ongoing rehabilitative treatments they need so they don’t reoffend and intimidate their communities.

-- END –

1. If an evaluator determines that the person no longer qualifies as a SVP or that conditional release is in the person's best interest and conditions can be imposed to adequately protect the community, but the Director of State Hospitals disagrees with the recommendation, the Director must nevertheless authorize the petition. (People v. Landau (2011) 199 Cal.App.4th 31, 37-39.) ↑

2. Recently, in People v. McCloud (2013) 213 Cal.App.4th 1076, the Court of Appeal recognized that the provision in Welfare and Institutions Code section 6608, subdivision (a) allowing for dismissal of a frivolous petition for release without a hearing, may violate the equal protection clause. The petitioner's equal protection claim was based on the fact that "[n]o other commitment scheme allows the judge to deem the petition 'frivolous' and thereby deny the petitioner a hearing." (Id. at p. 1087.) The court found there might well be actual disparate treatment of similarly situated persons—and if there was disparate treatment, the State might or might not be justified in so distinguishing between persons. The court remanded the case for further proceedings on the equal protection claim. (Id. at p. 1088.) ↑

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 255

Author:(Gallagher) – As Amended Ver:March 22, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill specifies that when courts designate the conditional release of a sexually violent predator (SVP), the courts must consider the individual’s connections to the community. Specifically, the court must consider if, and for how long, the person has previously resided or been employed in the county; and if the person has next of kin in the county.

FISCAL EFFECT:

No additional costs to Courts or the Department of State Hospitals (DSH).

COMMENTS:

1. Background. Current law provides various restrictions when a person is released on parole after having served a term of imprisonment in state prison for any offense for which sex offender registration is required.

A "sexually violent predator" is defined as "a person who has been convicted of a sexually violent offense against at least one victim, and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." Current law also provides for the civil commitment, for an indeterminate term, for psychiatric and psychological treatment of a prison inmate found to be a SVP after the person has served his or her prison commitment.

Current law requires a person found to have been a SVP and committed to DSH to have a current examination on his or her mental condition made at least yearly. The report must include consideration of conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and also what conditions can be imposed to adequately protect the community. In addition, DSH has an obligation to seek judicial review any time it believes a person committed as a SVP no longer meets the SVP criteria, not just annually.

A person committed as a SVP may petition the court for conditional release or unconditional discharge after one year of commitment. The petition can be filed with, or without, the concurrence of the DSH; however, DHS concurrence or lack thereof makes a difference in the process used. At the hearing, the person petitioning for release has the burden of proof by a preponderance of the evidence. If the petition is denied, the SVP may not file a subsequent petition until one year from the date of the denial.

If the SVP petition is approved, current law requires the court to order the committed person placed with an appropriate forensic conditional release program operated by the state for one year if the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community.

However, it is very difficult to find housing for SVPs on conditional release. Liberty Health Care, the contract provider for DSH, goes to great lengths at considerable expense to find suitable housing for an SVP on conditional release in the community. In the case of People v. Superior Court (Karsai) (2013) 213 Cal App 4^th 774, Liberty Health Care reported that its staff had travelled 6,793 miles in one year searching for a residence for Karsai and had viewed 1,261 properties in Santa Barbara, Ventura, and San Luis Obispo Counties. The only potential residence was Karsai's mother's home in Santa Maria, and the Court determined that Karsai's mother's home was not disqualified as a potential residence despite its proximity to a park and an elementary school. Later, Liberty informed the court that the Karsai family had withdrawn his mother's home as a placement/residence site because the family had been beset upon by the local media.

1. Purpose. According to the author, "Individuals who are conditionally released under the Sexually Violent Predator Program should be placed in counties where they have some connection. Rural counties and cities, which face their own unique public safety challenges, shouldn’t be forced to house offenders from other areas of the state. Moreover, it is much harder for offenders to be rehabilitated in communities where they are complete outsiders."

This bill provides that a person adjudicated as an SVP may only be placed in a county, other that the county of domicile, if the person has previously resided in the county, been employed in the county, or has family in the county. This, effectively, could prevent an SVP from residing in a rural area, and rural locations, often, are the only areas where an SVP can find a residence which complies with "Jessica's Law", which prohibits a person required to register as a convicted sex offender from residing within 2,000 feet of a public or private school, or park where children regularly congregate. However, the courts point out that judges already take into consideration the SVP’s connection to the community when providing for the conditional release.

1. Support. The County of Yuba Board of Supervisors states, "SVPs are offenders who have committed sexually violent crimes against one or more victims and have diagnosed mental disorders that make them more likely to reoffend. This makes SVPs a danger to the safety of the people around them. When SVPs are conditionally released from the State Hospital, they are re-located into a community to continue counseling. However, it's far too common to see SVPs re-located to areas without having any sort of residential, family, or work ties to the community. This is especially problematic in rural communities that face unique public safety issues and do not have the capacity to monitor offenders from other counties. Moreover, it is much harder for offenders to be effectively rehabilitated in areas where they have no connections.”

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 255

Author:(Gallagher) – As Introduced Ver:

As Proposed to be Amended in Committee

SUMMARY: Specifies that courts must consider the connections to the community when designating the placement of a sexually violent predator (SVP) in a county for conditional release. Specifically, the court shall consider if and how long the person has previously resided or been employed in the county; and if the person has next of kin in the county.

EXISTING LAW:

1. Provides that notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which sex offender registration is required, that person may not during the period of parole, reside in any single family dwelling with any other person also required to register as a convicted sex offender, unless those persons are legally related by blood. "Single family dwelling" shall not include a residential facility that serves six or fewer persons. (Pen. Code, § 3003.5, subd. (a).)
   
2. States notwithstanding any other provision of law, it is unlawful for any person for whom sex offender registration is required to reside within 2,000 feet of any public or private school, or park where children regularly gather. (Pen. Code, § 3003.5, subd. (b).)
   
3. Provides for the civil commitment for psychiatric and psychological treatment of a prison inmate found to be a SVP after the person has served his or her prison commitment. (Welf. & Inst. Code, § 6600, et seq.)
   
4. Defines a "sexually violent predator" as "a person who has been convicted of a sexually violent offense against at least one victim, and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1).)
   
5. Permits a person committed as a SVP to be held for an indeterminate term upon commitment. (Welf. & Inst. Code, § 6604.1.)
   
6. Requires that a person found to have been a SVP and committed to the Department of State Hospitals (DSH) have a current examination on his or her mental condition made at least yearly. The report shall include consideration of conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and also what conditions can be imposed to adequately protect the community. (Welf. & Inst. Code, § 6604.9.)
   
7. Allows a SVP to seek conditional release with the authorization of the Director DSH when DSH determines that the person's condition has so changed that he or she no longer meets the SVP criteria, or when conditional release is in the person's best interest and conditions to adequately protect the public can be imposed. (Welf. & Inst. Code, § 6607.)
   
8. Allows a person committed as a SVP to petition for conditional release or an unconditional discharge any time after one year of commitment, notwithstanding the lack of recommendation or concurrence by the Director of DSH. (Welf. & Inst. Code, § 6608, subd. (a).)
   
9. Provides that, if the court deems the conditional release petition not frivolous, the court is to give notice of the hearing date to the attorney designated to represent the county of commitment, the retained or appointed attorney for the committed person, and the Director of State Hospitals at least 30 court days before the hearing date. (Welf. & Inst. Code, § 6608, subd. (b).)
10. Requires the court to first obtain the written recommendation of the director of the treatment facility before taking any action on the petition for conditional release if the petition is made without the consent of the director of the treatment facility. (Welf. & Inst. Code, § 6608, subd. (c).)
11. Provides that the court shall hold a hearing to determine whether the person committed would be a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community. Provides that the attorney designated the county of commitment shall represent the state and have the committed person evaluated by experts chosen by the state and that the committed person shall have the right to the appointment of experts, if he or she so requests. (Welf. & Inst. Code, § 6608, subd. (e).)
12. Requires the court to order the committed person placed with an appropriate forensic conditional release program operated by the state for one year if the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community. Requires a substantial portion of the state-operated forensic conditional release program to include outpatient supervision and treatment. Provides that the court retains jurisdiction of the person throughout the course of the program. (Welf. & Inst. Code, § 6608, subd. (e).)
13. Provides that if the court denies the petition to place the person in an appropriate forensic conditional release program, the person may not file a new application until one year has elapsed from the date of the denial. (Welf. & Inst. Code, § 6608, subd. (h)
14. Allows, after a minimum of one year on conditional release, the committed person, with or without the recommendation or concurrence of the Director of State Hospitals, to petition the court for unconditional discharge, as specified. (Welf. & Inst. Code, § 6608, subd. (k).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Individuals who are conditionally released under the Sexually Violent Predator Program should be placed in counties where they have some connection. Rural counties and cities, which face their own unique public safety challenges, shouldn’t be forced to house offenders from other areas of the state. Moreover, it is much harder for offenders to be rehabilitated in communities where they are complete outsiders."
2. SVP Law Generally: The Sexually Violent Predator Act (SVPA) establishes an extended civil commitment scheme for sex offenders who are about to be released from prison, but are referred to the DSH for treatment in a state hospital, because they have suffered from a mental illness which causes them to be a danger to the safety of others.
   
   The Department of State Hospitals uses specified criteria to determine whether an individual qualifies for treatment as a SVP. Under existing law, a person may be deemed a SVP if: (a) the defendant has committed specified sex offenses against two or more victims; (b) the defendant has a diagnosable mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually-violent criminal behavior; and, (c) two licensed psychiatrists or psychologists concur in the diagnosis. If both clinical evaluators find that the person meets the criteria, the case is referred to the county district attorney who may file a petition for civil commitment.
   
   Once a petition has been filed, a judge holds a probable cause hearing; and if probable cause if found, the case proceeds to a trial at which the prosecutor must prove to a jury beyond a reasonable doubt that the offender meets the statutory criteria. The state must prove "[1] a person who has been convicted of a sexually violent offense against [at least one] victim[] and [2] who has a diagnosed mental disorder that [3] makes the person a danger to the health and safety of others in that it is likely that he or she will engage in [predatory] sexually violent criminal behavior." (Cooley v. Superior Court (Martinez) (2002) 29 Cal.4th 228, 246.) If the prosecutor meets this burden, the person then can be civilly committed to a DSH facility for treatment.
   
   The Department of State Hospitals must conduct a yearly examination of a SVP's mental condition and submit an annual report to the court. This annual review includes an examination by a qualified expert. (Welf. & Inst. Code, § 6604.9.) In addition, DSH has an obligation to seek judicial review any time it believes a person committed as a SVP no longer meets the criteria, not just annually. (Welf. & Inst. Code, § 6607.)
   
   The SVPA was substantially amended by Proposition 83 ("Jessica's Law"), which became operative on November 7, 2006. Originally, a SVP commitment was for two years; but now, under Jessica's Law, a person committed as a SVP may be held for an indeterminate term upon commitment or until it is shown that the defendant no longer poses a danger to others. (See People v. McKee (2010) 47 Cal. 4th 1172, 1185-87.) Jessica's Law also amended the SVPA to make it more difficult for SVPs to petition for less restrictive alternatives to commitment. These changes have survived due process, ex post facto, and, more recently, equal protection challenges. (See People v. McKee, supra, 47 Cal. 4th 1172 and People v. McKee (2012) 207 Cal.App.4th 1325.)
   
3. Obtaining Release From Commitment: A person committed as a SVP may petition the court for conditional release or unconditional discharge after one year of commitment. (Welf. & Inst. Code, § 6608, subd. (a).) The petition can be filed with, or without, the concurrence of the Director of State Hospitals. The Director's concurrence or lack thereof makes a difference in the process used.
   
   A SVP can, with the concurrence of the Director of State Hospitals, petition for unconditional discharge if the patient "no longer meets the definition of a SVP," or for conditional release. (Welf. & Inst. Code, § 6604.9, subd. (d).) If an evaluator determines that the person no longer qualifies as a SVP or that conditional release is in the person's best interest and conditions can be imposed to adequately protect the community, but the Director of State Hospitals disagrees with the recommendation, the Director must nevertheless authorize the petition. (People v. Landau (2011) 199 Cal.App.4th 31, 37-39.) When the petition is filed with the concurrence of the DSH, the court shall order a show cause hearing. (Welf. & Inst. Code, § 6604.9, subd. (f).) If probable cause is found, the patient thereafter has a right to a jury trial and is entitled to relief unless the district attorney proves "beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent behavior if discharged." (Welf. & Inst. Code, § 6605.)
   
   A committed person may also petition for conditional release or unconditional discharge notwithstanding the lack of recommendation or concurrence by the Director of State Hospitals. (Welf. & Inst. Code, § 6608, subd. (a).) Upon receipt of this type of petition, the court "shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing." (Welf. & Inst. Code, § 6608, subd. (a).)^[1] If the petition is not found to be frivolous, the court is required to hold a hearing. (People v. Smith (2013) 216 Cal.App.4th 947.)
   
   The SVPA does not define the term "frivolous." The courts have applied the definition of "frivolous" found in Code of Civil Procedure section 128.5, subdivision (b)(2): "totally and completely without merit" or "for the sole purpose of harassing an opposing party." (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1411; see also People v. McKee, supra, 47 Cal.4th 1172; People v. Collins (2003) 110 Cal.App.4th 340, 349.) Additionally, in Reynolds, supra, 181 Cal.App.4th at p. 1407, the court interpreted Welfare and Institutions Code section 6608 to require the petitioner to allege facts in the petition that will show he or she is not likely to engage in sexually-violent criminal behavior due to a diagnosed mental disorder, without supervision and treatment in the community, since that is the relief requested.
   
   Once the court sets the hearing on the petition, then the petitioner is entitled to both the assistance of counsel, and the appointment of an expert. (People v. McKee, supra, 47 Cal.4th 1172, 1193.) At the hearing, the person petitioning for release has the burden of proof by a preponderance of the evidence. (Welf. & Inst. Code, § 6608, subd. (i); People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1503.) If the petition is denied, the SVP may not file a subsequent petition until one year from the date of the denial. (Welf. & Inst. Code, § 6608, subd. (h).)
   
4. Difficulty in Finding Compliant Housing: This bill provides that a person adjudicated as an SVP shall only be placed in a county, other that the county of domicile, if the person has previously resided in the county, been employed in the county, or has family in the county. This, effectively, would prevent an SVP from residing in a rural area, and rural locations, often, are the only areas where an SVP can find a residence which complies with "Jessica's Law", which prohibits a person required to register as a convicted sex offender from residing within 2,000 feet of a public or private school, or park where children regularly congregate.
   
   Liberty Health Care, the contract provider for DSH, goes to great lengths at considerable expense to find suitable housing for an SVP on conditional release in the community. In the case of People v. Superior Court (Karsai) (2013) 213 Cal App 4^th 774, Liberty Health Care reported that its staff had travelled 6,793 miles in one year searching for a residence for Karsai and had viewed 1,261 properties in Santa Barbara, Ventura, and San Luis Obispo Counties. The only potential residence was Karsai's mother's home in Santa Maria, and the Court determined that Karsai's mother's home was not disqualified as a potential residence despite its proximity to a park and an elementary school. Later, Liberty informed the court that the Karsai family had withdrawn his mother's home as a placement/residence site because the family had been beset upon by the local media.
   
   The court then found that "extraordinary circumstances existed, justifying a search for 'any' available housing "without being constrained to San Luis Obispo or Santa Barbara County." Approximately five months later, Liberty had reviewed more than 1,830 sites and had identified two possible locations: an apartment in Sacramento and a small home in Auburn. At a hearing, both the People and Karsai objected to the locations. The People objected due to the proximity of Karsai's victims, and both sides objected "on the basis that the placement would provide no support structure for Mr. Karzai". Agreeing that it would be "fruitless" to pursue those placements, the court ordered Liberty to check into the option of placing Karzai in a travel trailer on a pad next to the San Luis Obispo County Sheriff's Office. Liberty shortly informed the court that there had been objections to Karzai's placement in a trailer and that the pad was "not Jessica's law compliant. Because it appeared to the court that "there was no suitable placement available either in Mr. Karsai's county of domicile, or elsewhere," the court ordered Karsai be "released in Santa Barbara County as a transient." Santa Barbara then sought a writ of mandate in the court of appeal, seeking to vacate the superior court's order releasing Karsai into Santa Barbara as a transient.
   
   The court eventually ruled that nothing in the law forbids the conditional release of an SVP as a transient. "Moreover, to imply such imply such a limitation into the law would raise serious constitutional issues. 'Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections.' (People v. Otto (2001) 26 Cal.4^th 200, 209 [109 Cal. Rptr. 2d 327, 26 P.3d 1061].) Once a court has determined that a particular SVP would not be a danger to the health and safety of others in that it is not likely that he or she would engage in sexually violent criminal [*789] behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community, that person unquestionably has a significant liberty interest in being released. To authorize an unspecified delay in that release by implying in the SVPA a requirement that the person must have a specific resident before release, when under the statutory scheme the securing of a specific residence is not a prerequisite to a finding that the person would pose no danger to others if under outpatient supervision and treatment, would run the risk that a person who is no longer dangerous will nonetheless have to remain in custody in a secure facility indefinitely simply because of some [***28] extraneous factor, such as public outrage, that interferes with finding and securing a fixed residence for that person. To avoid such a potential due process problem, we believe the more prudent—as well as that most consistent with the established canons of statutory interpretation—is to not imply in the SVPA something the Legislature did not expressly include in it: the limitation that an SVP cannot be conditionally released in the community without a specific residence."
   
   If this bill were to pass, and it becomes impossible to place SVP's in a compliant residence in the community, the courts could be compelled to release SVP's in the community as transients, which would present a risk to the public safety, as they would not be under the watchful eye of Liberty Health Care. It should be noted, that DSH has informed Committee staff that there has never been instance of an SVP on conditional release having committed a new offense. This is largely due to the stringent protocol imposed on SVP's by Liberty Health Care, which includes a compliant and stable residence.
   
5. Impact of Residency Restrictions: In October of 2014, the Office of the Inspector General (OIG) conducted a review and assessment of sex offenders on parole and the impact of residency restrictions on this same population. The Executive Summary of the OIG Report concluded, "The residency restrictions imposed by Jessica's Law, which prohibit parole sex offenders from living within 2,000 feet of a school or park where children congregate, contribute to homelessness among parole sex offenders. According to the California Sex Offender Management Board, there were only 88 sex offenders on parole registered as transient when Proposition 83 was passed in November 2006. As of June 2014, there were 1556 sex offender parolees identified as transient by the California Department of Corrections and Rehabilitation (CDCR). While this represents 3.38 percent of all parolees, the incidence of homelessness is 19.95 percent (approximately one in five) among the subset of parolees who are sex offenders"
   
   "Transient sex offenders are more 'labor intensive' than are parolees who have a permanent residence. The OIG interviewed parole administrators in 12 parole districts, who said that because transient sex offenders are moving frequently, monitoring their movement is time consuming. Transient sex offenders must register with law enforcement monthly (as opposed to yearly for those with permanent residences), thus requiring more frequent registration compliance tracking by parole agents. Adding further to the workload associated with monitoring transients, agents are required to conduct weekly face-to-face contacts with them."
   
   "While Jessica's Law leaves open the door for local governments to impose their own restrictions on paroled sex offenders, parolees are finding relief from residency restrictions in the courts."
   
   The California Supreme Court in In Re Taylor (2014) 60 Cal. 4^th 1019, recently, ruled that CDCR's enforcement of the Jessica's Law residency restrictions was unconstitutionally unreasonable as applied to San Diego County. The court held that because blanket enforcement had caused many parolees to be homeless and thus had hampered efforts to supervise and rehabilitate them in the interests of public safety, such enforcement was arbitrary and oppressive, violating due process under the 14^th Amendment to the U.S. Constitution, under a rational basis analysis because it bore no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators. On March 26^th of this year the CDCR announced, that upon advice of the Attorney General, it would no longer be enforcing Jessica's Law's blanket residency restrictions in any parole region in the state.
   
6. Argument in Support: According to the County of Yuba Board of Supervisors, "SVPs are offenders who have committed sexually violent crimes against one or more victims and have diagnosed mental disorders that make them more likely to reoffend. This makes SVPs a danger to the safety of the people around them. When SVPs are conditionally released from the State Hospital, they are re-located into a community to continue counseling. However, it's far too common to see SVPs re-located to areas without having any sort of residential, family, or work ties to the community. This is especially problematic in rural communities that face unique public safety issues and do not have the capacity to monitor offenders from other counties. Moreover, it is much harder for offenders to be effectively rehabilitated in areas where they have no connections.
   

"Yuba County's Public Safety team already struggles with limited resources that are typical in a lagging local economy, but we always take full responsibility to handle those who commit crimes in our community. The placement of a SVP in one of our neighborhoods only diminishes our capacity to address our current workload and protect our residents.

"AB 255 would address these issues by requiring consideration of where the SVP was living prior to being arrested when determining their county of domicile. If extraordinary circumstances require placement outside of the county of domicile, the court must look for placement in an area where the individual has family, employment, or residential ties. It makes no sense for a sexually violent predator to be placed in a county or city where he/she has no history or relations. With no connections, this could increase the chance that the SVP could reoffend."

1. Prior Legislation:
   
   1. AB 262 (Lackey), of the 2015-16 Legislative Session, would have placed additional residency restrictions on SVP's conditionally released for community outpatient treatment by requiring that an SVP shall only reside in a dwelling or abode within 10 miles of a permanent physical police or sheriff station that has jurisdiction over the location and has 24 hour a day peace officer staffing on duty and available to respond to call for service. AB 262 failed passage in this committee.
      
   2. AB 1607 (Fox), Chapter 877, Statutes of 2014, requires the court, prior to an SVP conditional release hearing, to notify both the county of commitment and the county of domicile, if the county of domicile is different than the county of commitment, and allows the county of domicile to represent the state at the conditional release hearing.
      
   3. AB 1768 (Achadjian), of the 2013-14 Legislative Session, would have prohibited a person designated as an SVP from being conditionally released as a transient or being released in housing consisting of a recreational vehicle or other vehicle. AB 1768 was pulled by the author and was not heard in Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Butte County Board of Supervisors

California Police Chiefs Association

California State Sheriffs' Association

Rural County Representative of California

San Bernardino County

Sutter County District Attorney

Yuba County Board of Supervisors

Opposition

None

Analysis Prepared by:

Gregory Pagan / PUB. S. /

1. Recently, in People v. McCloud (2013) 213 Cal.App.4th 1076, the Court of Appeal recognized that the provision in Welfare and Institutions Code section 6608, subdivision (a) allowing for dismissal of a frivolous petition for release without a hearing, may violate the equal protection clause. The petitioner's equal protection claim was based on the fact that "[n]o other commitment scheme allows the judge to deem the petition 'frivolous' and thereby deny the petitioner a hearing." (Id. at p. 1087.) The court found there might well be actual disparate treatment of similarly situated persons—and if there was disparate treatment, the State might or might not be justified in so distinguishing between persons. The court remanded the case for further proceedings on the equal protection claim. (Id. at p. 1088.) ↑