Existing law provides for the civil commitment of a person who is determined to be a sexually violent predator. Existing law establishes a procedure by which a person committed as a sexually violent predator may petition for conditional release and requires the court, if it makes a specified determination, to place the person on conditional release. Existing law generally requires that a person released on conditional release pursuant to these provisions be placed in the persons county of domicile prior to their incarceration unless extraordinary circumstances exist requiring placement outside the county, as specified. Existing law requires the department to convene a committee consisting of the counsel for the committed individual, the sheriff or the chief of police of the locality for placement, and the county counsel and the district attorney of the county of domicile, or their designees, to provide assistance and consultation to the department in locating and securing housing.

This bill would require that a meeting of the above-described committee be conducted with each individual present and occur in the county of domicile. only in the county of domicile with a representative of the department personally present. The bill would prohibit an individual the department from attending remotely. By adding a higher level of service to be provided by local authorities, the bill would create a state-mandated local program.

Existing law provides for the civil commitment of a person who is determined to be a sexually violent predator. Existing law establishes a procedure by which a person committed as a sexually violent predator may petition for conditional release and requires the court, if it makes a specified determination, to place the person on conditional release. Existing law generally requires that a person released on conditional release pursuant to these provisions be placed in the persons county of domicile prior to their incarceration unless extraordinary circumstances exist requiring placement outside the county, as specified. Existing law requires the department to convene a committee consisting of the counsel for the committed individual, the sheriff or the chief of police of the locality for placement, and the county counsel and the district attorney of the county of domicile, or their designees, to provide assistance and consultation to the department in locating and securing housing.

Existing law provides for the civil commitment of a person who is determined to be a sexually violent predator. Existing law establishes a procedure by which a person committed as a sexually violent predator may petition for conditional release and requires the court, if it makes a specified determination, to place the person on conditional release. Existing law generally requires that a person released on conditional release pursuant to these provisions be placed in the persons county of domicile prior to their incarceration unless extraordinary circumstances exist requiring placement outside the county, as specified.

This bill would state the intent of the Legislature to enact legislation that would require the State Department of State Hospitals to notify the victims of a person who has been committed as a sexually violent predator of that persons release date and placement location.

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2036

Author:(Joe Patterson) – As Amended Ver:April 9, 2024

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

SUMMARY:

This bill prohibits a representative from the Department of State Hospitals (DSH) from attending remotely a meeting of the committee that determines placement of a conditionally-released sexually violent predator (SVP).

FISCAL EFFECT:

Costs to DSH (General Fund), possibly in the hundreds of thousands to low millions of dollars annually, to attend in-person SVP placement meetings. DSH estimates a fiscal impact of $1.4 million annually for additional staffing and travel expenses, assuming 48 meetings per year statewide. DSH reports the bill’s in-person attendance requirement would significantly increase the amount of workload and time required for DSH staff to plan and attend the meetings due to the significant travel needed. DSH also notes the department may need to provide security for staff due to the controversial and sometimes hostile nature of the meetings.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

The entire reason the legislature created the housing committee process is to enable the engagement of local stakeholders and empower local authorities to have input in the placement of Sexually Violent Predators. This process has ensured more transparency but has also been plagued by technological barriers. I have personally participated in several of these meetings and in every case, the video or audio feed has broken down. We must ensure that one representative from the Department of State Hospitals is present at the meeting so he or she can receive the input from the community as intended by the legislature.

1. Background. An SVP is a person who, after incarceration in state prison, must serve a civil commitment in DSH because a court has determined the person is likely to engage in sexually violent criminal behavior upon their release. Generally, once a person is deemed an SVP, they must remain in a state hospital for treatment and confinement until they can show that their condition has changed sufficiently that they no longer pose a significant risk to society. After a judicial review process, if a court determines that an SVP would not be a danger to the health and safety of others, they will be placed in their pre-incarceration county of domicile, unless the court finds that extraordinary circumstances require placement outside the county domicile. “Extraordinary circumstances” means any circumstances that would inordinately limit the DSH’s ability to effect SVP’s conditional release in their county of domicile.

Under existing law, representatives from the SVP’s county of domicile are required to participate in DSH’s process for locating and securing housing for the SVP. The statute does not currently restrict how or where the committee convened by DSH must meet. As described in the analysis of this bill by the Assembly Committee on Public Safety, finding a suitable housing placement for an SVP is challenging and often contentious. There are numerous statutory restrictions on where an SVP may live, and members of the public often do not want an SVP to live in their community. Committee meetings are open to the public and noticed by DSH in accordance with the Bagley-Keene Act. However, some committee discussion occurs in closed session so the committee members can discuss confidential patient information, such as clinical risk factors that affect potential placement.

This bill prohibits a representative from DSH from attending a meeting of the committee remotely, requires a meeting be held in the SVP’s county of domicile, and requires each member of the committee to be present for each meeting. The bill does not prevent other members of the committee (besides representatives from DSH) from attending remotely.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

ABPCA Bill Id:AB 2036

Author:(Joe Patterson) – As Amended Ver:April 9, 2024

SUMMARY:

Requires that the meeting of local law enforcement, district attorney, and county counsel regarding the conditional placement of a Sexually Violent Predator (SVP) be conducted with each individual, as specified, present and may occur only in the county of domicile with a representative of the Department of State Hospitals (DSH) personally present.

EXISTING LAW:

1. Provides for the civil commitment for psychiatric and psychological treatment of a prison inmate found to be an SVP after the person has served their prison commitment. This is known as the Sexually Violent Predator Act (“SVPA”). (Welf. & Inst. Code, § 6600, et seq.)
2. 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).)
3. Permits a person committed as an SVP to be held for an indeterminate term upon commitment. (Welf. & Inst. Code, §§ 6604 & 6604.1.)
   
4. Establishes a process whereby a person committed as an SVP can 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, subds. (a), (f) & (m).)
5. Provides that if the petition is made without the consent of the director of the treatment facility, no action may be taken on the petition without first obtaining the written recommendation of the director of the treatment facility. (Welf. & Inst. Code, § 6608, subd. (e).)
   
6. Provides that before actually placing a person on conditional release, the community program director designated by the DSH must recommend the program most appropriate for supervising and treating the person. (Welf. & Inst. Code, § 6608, subd. (h).)
7. Provides that a person who is conditionally released shall be placed in the county of domicile of the person prior to the person’s incarceration, unless both of the following conditions are satisfied:
   1. The court finds that extraordinary circumstances require placement outside the county of domicile; and,
      
   2. The designated county of placement was given prior notice and an opportunity to comment on the proposed placement of the committed person in the county. (Welf. & Inst. Code, 6608.5, subd. (a).)
8. States that the county of domicile shall designate a county agency or program that will provide assistance and consultation in the process of locating and securing housing within the county for persons committed as SVPs who are about to be conditionally released. (Welf. & Inst. Code, § 6608.5, subd. (d).)
9. Specifies that in recommending a specific placement for community outpatient treatment, the DSH or its designee shall consider all of the following:
   1. The concerns and proximity of the victim or the victim’s next of kin; and,
      
   2. The age and profile of the victim or victims in the sexually violent offenses committed by the person subject to placement. The “profile” of a victim includes, but is not limited to, gender, physical appearance, economic background, profession, and other social or personal characteristics. (Welf. & Inst. Code, § 6608.5, subd. (e)(1)-(2).)
10. States that if the court determines that placement of a person in the county of their domicile is not appropriate, the court shall consider the following circumstances in designating his or her placement in a county for conditional release:
    
    1. If and how long the person has previously resided or been employed in the county; and,
       
    2. If the person has next of kin in the county. (Welf. & Inst. Code, § 6608.5, subd. (g)(1)- (2).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author: “The entire reason the legislature created the housing committee process is to enable the engagement of local stakeholders and empower local authorities to have input in the placement of Sexually Violent Predators. This process has ensured more transparency but has also been plagued by technological barriers. I have personally participated in several of these meetings and in every case, the video or audio feed has broken down. We must ensure that one representative from the Department of State Hospitals is present at the meeting so he or she can receive the input from the community as intended by the legislature.”
   
2. SVP Law: This bill requires that, if a SVP is conditionally released and may not, for legal or practical reasons, be returned to their county of domicile, DSH must seek assistance and consultation from the district attorney, local law enforcement, and county counsel for the alternative county before placing the SVP in that community. Pursuant to existing law, an alternate county of domicile may only receive 30 days’ notice of placement. According to the author, there is insufficient communication between DSH and the alternative county before the SVP is released – leaving the alternative county with no mechanism to assist DSH in placing the SVP in that community.

Enacted in 1996, the SVPA authorizes an involuntary civil commitment of any person “who has been convicted of a sexually violent offense … 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.” (Emphasis added.) (Welf. & Inst. Code, § 6601, subd. (a).) “The SVPA was designed to accomplish the dual goals of protecting the public, by confining violent sexual predators likely to reoffend, and providing treatment to those offenders. Those committed pursuant to the SVPA are to be treated not as criminals, but as sick persons. They are to receive treatment for their disorders and must be released when they no longer constitute a threat to society.” (People v. Superior Court (Karsai) (2013) 213 Cal.App.4th 774, 783, citing Welf. & Inst. Code, § 6250.)

Civil commitment is not a prison sentence. Once a person has been deemed no longer a threat to public safety, they must, as a matter of law, be released from custody. Originally, the SVP laws provided for an initial commitment of two years and then a review every two years thereafter. However, effective September 20, 2006, the law now provides for indeterminate commitments for persons found to be sexually violent predators. (Welf. & Inst. Code § 6604.)

Process of SVP designation:

When the Department of Corrections and Rehabilitation (CDCR) determines that an inmate “may be a sexually violent predator,” the CDCR Secretary refers the inmate to the DSH for a thorough evaluation. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145; Welf. & Inst., § 6601, subd. (b).)

An evaluation “must be conducted by at least two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol[.]” (Welf. & Inst. Code, § 6601, subd. (c)-(d).) If the two evaluators agree the inmate is likely to reoffend without treatment or custody due to their mental disorder, the Director of DSH must request a petition for commitment pursuant to the Welfare and Institutions Code section 6602 to the county in which the inmate was last convicted. (Welf. & Inst. Code, § 6601, subd. (d).) Thereafter, the county district attorney will file a petition for civil commitment. Due process requires any deprivation of liberty by the state requires notice and a meaningful opportunity to be heard.

Accordingly, a court then reviews the petition and determines whether there is probable cause to believe the inmate “is likely to engage in sexually violent predatory criminal behavior upon their release. If the court or jury determines that the person is a sexually violent predator, the person [is] committed for an indeterminate term” to a state mental hospital “for appropriate treatment and confinement.” (Welf. & Inst. Code, § 6604.)

The burden then shifts to the “offender seeking his or her release from an SVPA commitment” to prove he or she is no longer a significant risk to society. (Ashley Felando (2012) California’s Sexually Violent Predator Act and the Dangerous Patient Exception, 40 W. St. U.L. Rev. 73, 76; Note (2014) Examining the Conditions of Confinement for Civil Detainees under California's Sexually Violent Predators Act, 68 Hastings L.J. 1441, 1444-1446.)

If the Director of DSH determines that the inmate’s diagnosed mental disorder has so changed that the inmate is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, the Director will forward a report and recommendation for conditional release. If the court at the hearing determines that the SVP would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court will order the person placed with an appropriate forensic conditional release program operated by the state for one year, a substantial portion of which is required to include outpatient supervision and treatment. (Welf. & Inst. Code § 6608, subd. (f).)

After a judicial determination that a person would not be a danger to the health and safety of others (i.e., in that it is not likely that the person will engage in sexually violent criminal behavior due to the person’s diagnosed mental disorder while under supervision and treatment in the community), they will be placed in their pre-incarceration county of domicile, unless the court finds that extraordinary circumstances require placement outside the county domicile. (Welf. & Inst. Code § 6608.5, subd. (a); see Welf. & Inst. Code § 6608.5, subd. (b).)

Restrictions on Conditionally Released SVPs

A conditionally released SVP is deemed by DSH and the courts to no longer pose a danger to the community and may be treated in the community rather than confinement in the state hospital. However, a conditionally released SVP is tightly monitored and supervised in the community. A person released as an SVP may not be released to any residence that is within one-quarter mile of any public or private school providing instruction in kindergarten or any grades 1 through 12, inclusive, if the person has been previously convicted of child molestation or continuous sexual abuse of a child or the court finds the person has a history of improperly sexual conduct with children. (Welf. & Inst. Code, § 6608.5, subd. (f)(1-2).) Additionally, a conditionally released SVP must be monitored by a global positioning system (“GPS”) until they are unconditionally released. (Welf. & Inst. Code, § 6608.1.)

1. DSH SVP Conditional Release Program (CONREP): The DSH CONREP is described by DSH as follows:

CONREP is DSH’s statewide system of community-based services for court-ordered individuals. Mandated as a state responsibility, CONREP began on January 1, 1986. The SVP Act governs all SVP commitments and releases. Releases from the hospital to the community are either unconditional (direct community discharge) or conditional through CONREP and are court-ordered. CONREP is an intensive community-based treatment, and 24 hours per day monitoring program with gradual steps toward increased community re-entry depending on treatment progress. DSH contracts with Liberty Healthcare to provide SVP CONREP services across the state. SVP CONREP is designed in accordance with best practice standards, called the Risk, Needs, and Responsivity Principles. Research shows that interventions with sex offenders that follow these principles have the greatest reduction in re-offense rates.

Interventions are coordinated through the Collaboration Model of sex offender management that relies on cross agency teamwork and a broad range of services that are flexibly applied in response to patient’s risk profiles and treatment needs. This model of sex offender treatment holds patients accountable by the combined use of the patient’s internal controls, developed during inpatient treatment, and the use of external tools, including polygraph examinations, surveillance, and electronic monitoring. It is victim-centered, focusing on community safety as the primary goal. Close collaboration and communication by all parties participating in the patient’s community treatment and supervision are essential.

Use of a Community Safety Team (CST), a standard practice for providing community supervision and treatment, is the method by which the principles of Risks, Needs, and Responsivity and the Collaboration Model are applied for each patient. Members of the CST include the following: (a) CONREP Regional Coordinator; (b) CONREP Clinical Program Director; (c) Treatment Providers; (d) Victim Advocate; (e) Polygraph Provider; (f) Local law enforcement; (g) Defense attorney; (h) District Attorney; and (i) Others as needed for support, accountability, and/or clinical needs.

The SVP CONREP program utilizes the following supervision and monitoring tools that are carried out by the CST: (a) unannounced and scheduled in person visits onsite and offsite from the residence; (b) collateral contacts and chaperone training with significant people in the patient’s life; (c) covert surveillance; (d) 24-hour GPS monitoring; (e) monitoring of approved electronics (i.e. phone, computer); (f) random urine screens for illicit substances; (g) unannounced residence, vehicle, and personal property searches; (h) Banking and expense reviews; and (i) approval of schedules, locations of outings, and routes of travel for all time outside of residence. This is verified daily by review of GPS tracking. The GPS system also provides “real time” tracking with instant notification of any violations of the inclusion/exclusion zones developed for the patient. Life skills training, residential placement, and other services needed to support safe and successful community reintegration.

Conditional release of an SVP is complex and time consuming and often engenders strong reactions from those in the community where the SVP will be placed. This complex process has been mired in delays for many years. While tight restrictions on conditionally released SVPs is critical, the number of laws that restrict housing has created an untenable reality where a court can no longer deprive someone of their constitutional liberty, but there is nowhere for an SVP t reside outside the facility.

1. “County of Domicile”: An SVP conditionally released for outpatient supervision and treatment must be placed in the county of domicile prior to the person’s incarceration, unless the court finds that extraordinary circumstances require placement outside the county of domicile. (Welf. & Inst. Code, § 6608.5, subd. (a)(1).) The county of domicile is the county where the person has their true, fixed, and permanent home and principal residence and to which they have manifested the intention of returning whenever they are absent. (Id.)
   

For purposes of determining the county of domicile, the court may consider information found on a California’s driver’s license, California identification card, recent rent or utilities receipt, printed personalized checks or other recent banking documents, or any arrest record. If no information can be verified, the county of domicile shall be considered the county in which the person was arrested and convicted or last returned on parole. (Welf. & Inst. Code, § 6608.5, subd. (b)(1).) If that county is not suitable, the court, DSH, and CDCR may choose alternative county for placement.

Based on input from local law enforcement, a court may approve, modify, or reject the recommended or proposed specific address within that community or proposed specific address within that community. A court could approve a specific city but reject a specific address in that city. Therefore, simply having a verified address is not sufficient to satisfy the terms of a conditional release. The city and the address must be approved by the court. (See Welf. & Inst. Code, 6609.1, subd. (a)(5)A).) Furthermore, agencies receiving notice of an SVP’s placement in a specific county may comment on the placement or location of release, and may suggest alternative locations for placement within a community. (Welf. & Inst. Code, § 6609.1, subd. (a)(5)(A) and (b).)

Based on the all the evidence, the court determines whether approve, reject, or modify the terms of conditional release. Welfare and Institutions Code section 6609.1 requires a community be given 30 days’ notice if an SVP is pending conditional release in that community. (Welf. & Inst. Code, § 6609.1, subd. (a)(4).) Notice includes the name and proposed placement address before an SVP is released into the community.

Identifying the county of domicile for an SVP is challenging because in many cases, these individuals have been incarcerated for years – first in state prison and then on civil commitment. There may be no evidence of county of domicile. The SVPA was enacted in 1996 – and used very heavily in the last 15 or 20 years. If a SVP was originally from Hancock Park in Los Angeles in the 1990s – returning to Los Angeles may not be an option because a SVP cannot live near a school or park, or be anywhere children regularly congregate. There may also be additional stay away orders in place that prevent placement in certain areas.

A finding that a person is eligible for conditional release really eliminates the legal grounds for holding the person in custody. Again, civil commitment is not a prison sentence wherein a grant of parole may be determined by examining the offender and the nature of the offense. It is a mental health diagnosis wherein the goal of commitment is to treat the mental illness so the person may ultimately be released into the community. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 [“Here, for instance, the Legislature disavowed any ‘punitive purpose [],’ and declared its intent to establish ‘civil commitment’ proceedings in order to provide ‘treatment’ to mentally disordered individuals who cannot control sexually violent criminal behavior. The Legislature also made clear that, despite their criminal record, those eligible for commitment and treatment as SVP's are to be viewed ‘not as criminals, but as sick persons.’ Consistent with these remarks, the SVPA was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups.”].)

Also, conditional release requires weekly individual contact with the SVP, group treatment, and weekly drug screening. It may also include polygraph examinations, anti-androgen therapy, GPS tracking, increased supervision through random visits, and community notification.

1. Argument in Support: None on file.
   
2. Argument in Opposition: None on file.
3. Related Legislation:
   
   1. AB 1456 (Patterson) was substantially similar was gut and amended at the end of the 2023 legislative year and is substantially similar to this bill but was never referred to this committee.
      
   2. AB 1954 (Alanis) states the intent of the Legislature to enact legislation that would require the State Department of State Hospitals to notify the victims of a person who has been committed as a sexually violent predator of that person’s release date and placement location. AB 1954 is pending hearing in this committee today.
      
   3. AB 2035 (Patterson) prohibits the Department of State Hospitals (“DSH”) from placing a conditionally released sexually violent predator (“SVP”) into the community if the person does not have housing in a qualified dwelling, which is defined as a structure intended for human habitation by one person or a single family and that is not within 10 feet of another dwelling. AB 2035 is pending in the Assembly Committee on Appropriations.
      
4. Prior Legislation:
   
5. AB 763 (Davies, of the 2023-24 Legislative Session, prohibits placing an SCP released on conditional release within 1/4 mile of a home school. AB 763 was referred to this committee, but never heard.
   
6. SB 841 (Jones), of the 2021-22 Legislative Session, would have enacted the Sexually Violent Predator Accountability, Fairness, and Enforcement Act, would have required the DSH to take specified actions regarding the placement of SVPs in communities, including notifying the county’s executive officer of the placement location, as specified. SB 841 failed passage in the Senate Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

None

Analysis Prepared by:

Kimberly Horiuchi / PUB. S. / (916) 319-3744