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 and prohibits the placement of a person released on conditional release within ¹/₄ mile of any public or private school, as specified.

This bill would prohibit the placement of a person released on conditional release within ¹/₄ mile of a home school.

Date of Hearing:

Counsel: Cheryl Anderson

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 763

Author:(Davies) – As Introduced Ver:February 13, 2023

SUMMARY:

Prohibits the placement of “Sexually Violent Predator” (SVP) released on conditional release within 1/4 mile of a home school.

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. Requires that a person found to have been an SVP and committed to the Department of State Hospitals (DSH) have a current examination on their mental condition made at least yearly. The report shall include consideration of whether 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, subds. (a) & (b).)
   
5. Provides that when DSH determines that the person's condition has so changed that they are not likely to commit acts of predatory sexual violence while under community treatment and supervision, then the DSH Director shall forward a report and recommendation for conditional release to the court, the prosecuting agency, and the attorney of record for the committed person. (Welf. & Inst. Code, § 6607.)
6. 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).)
7. 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 director’s written recommendation. (Welf. & Inst. Code, § 6608, subd. (e).)
   
8. Prohibits the court from holding a hearing on a petition for conditional release until the community program director designated by DHS submits a report to the court that makes a recommendation as to the appropriateness of placing the person in a state-operated forensic conditional release program. (Welf. & Inst. Code, § 6608, subd. (f); Pen. Code, § 1605, subd. (a).)
   
9. Requires the court to place the committed person in a forensic conditional release program operated by the state for one year if it finds that the person is not a danger to others due to their mental disorder diagnosis while under treatment and supervision in the community. Specifies that the program must include outpatient care. (Welf. & Inst. Code, § 6608, subd. (g).)
   
10. Provides that before actually placing a person on conditional release, the community program director designated by DSH must recommend the program most appropriate for supervising and treating the person. (Welf. & Inst. Code, § 6608, subd. (h).)
    
11. Provides that a conditionally released person shall be placed in their county of domicile prior to incarceration unless the court finds that extraordinary circumstances require placement outside the county of domicile. (Welf. &Inst. Code, §§ 6608.5, subd. (a), 6608.6.)
12. Prohibits a conditionally-released person from being placed within a quarter-mile of any kindergarten through twelfth grade school if the court finds that the person has “a history of improper sex conduct with children” or has previously been convicted of specified sex offenses. (Welf. & Inst. Code, § 6608.5, subd. (f).)
    
13. Provides that 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, shall provide assistance and consultation in securing housing. (Welf. & Inst. Code, § 6608.5, subd. (d).)
    
14. Specifies that in recommending a specific placement for community outpatient treatment, 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).)
       
15. Specifies that when DSH makes a recommendation to the court for community outpatient treatment for any person committed as a SVP, or possibilities of community placement exist, DSH must notify the sheriff or chief of police, or both, the district attorney, or the county’s designated counsel, that have jurisdiction over the following locations:
    
    1. The community in which the person may be released for community outpatient treatment;
       
    2. The community in which the person maintained his or her last legal residence; and,
       
    3. The county that filed for the person’s civil commitment. (Welf. and Inst. Code, § 6609.1, subd. (a)(1)(A)-(C).)

1. Requires notice be given at least 30 days prior to DSH’s submission of its recommendation to the court in those cases in which DSH recommended community outpatient treatment, or in which DSH is recommending or proposing a placement location, or in the case of a petition or placement proposal by someone other than DSH, within 48 hours after becoming aware of the petition or placement proposal. (Welf. & Inst. Code, § 6609.1, subd. (a)(4).)
   
2.  Specifies that agencies receiving the notice may provide written comment to the DSH and the court regarding the impending release, placement, location, and conditions of release. All community agency comments shall be combined and consolidated. (Welf. &Inst. Code, § 6609.1, subd. (b).)
   
3. Requires that the agencies’ comments and DSH’s statements be considered by the court which shall, based on those comments and statements, approve, modify, or reject the DSH’s recommendation or proposal regarding the community or specific address to which the person is scheduled to be released or the conditions that shall apply to the release if the court finds that DSH’s recommendation or proposal is not appropriate. (Welf. &Inst. Code, § 6609.1, subd. (c).)
   
4. Requires an SVP on conditional release or outpatient status to be monitored by a global positioning system until the person is unconditionally discharged. (Welf. &Inst. Code, § 6608.1.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Assembly bill 763 would allow home schools to be accounted for during the placement of sexually violent predators. I understand that the housing of these sexually violent predators is a large public safety concern, especially to parents hoping to provide education to their children in areas these individuals may be placed. As of now, the placement limitation for one quarter of a mile is only applicable to public and private schools.
   
   “Areas where any form of schooling, whether that be public, private, or an at-home setting certainly deserves to be treated at the same degree. This bill would extend the current housing limitations of sexually violent predators surrounding home schools.”
   
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. (Welf & Inst. Code, §§ 6600-6609.3.)
   
   DSH 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 they have been convicted of a sexually violent offense against one or more victims, and has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that they will engage in sexually violent criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a).)
   
   If two licensed psychiatrists or psychologists concur in the diagnosis, the case is referred to the county district attorney who may file a petition for civil commitment. (Welf. & Inst. Code, § 6601, subds. (d), (h) & (f).)
   
   Once a petition has been filed, a judge holds a probable cause hearing; and if probable cause is 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. (Welf. & Inst. Code, §§ 6602, 6604.) 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.” (Welf. & Inst. Code, § 6600, subd. (a)(1).) If the prosecutor meets this burden, the person then can be civilly committed to a DSH facility for treatment. (Welf. & Inst. Code, § 6604.)
   
   DSH must conduct a yearly examination of a SVP's mental condition and submit an annual report to the court. As part of the annual review, the person committed as an SVP has a right to examination by a retained or appointed 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.) 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. (Welf. & Inst. Code, § 6600, subd. (a).)
   
3. Obtaining Release From Commitment: A person committed as a SVP may petition the court for conditional release after one year of commitment. (Welf. & Inst. Code, § 6608, subds. (a) & (f).) The petition can be filed with, or without, the concurrence of DHS. The Director's concurrence or lack thereof makes a difference in the process used.
   
   Where a petition for conditional release is filed without DHS’s concurrence or recommendation, and the person previously filed a petition without concurrence where the court determined it was frivolous or that the person’s condition had not changed so that they no longer met the SVP criteria, the court must deny the current petition without a hearing unless it contains changed facts warranting a hearing. Upon receiving a first or subsequent petition without DSH concurrence, the court must “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).)
   
   At a conditional release hearing in which the person does not have the concurrence of DSH, the burden is on the SVP to prove by a preponderance of the evidence that they would not be a danger to the health and safety of others. In particular, the person would have to prove that it is not likely they would engage in sexually violent criminal behavior due to their diagnosed mental disorder if supervised and treated in the community. (Welf. & Inst. Code, § 6604.9, subd. (k).) At a conditional release hearing in which the person has the concurrence of DSH, the burden is on the prosecution to prove by a preponderance of the evidence that conditional release is not appropriate. (Ibid.)
   
4. Placement near Schools: Under current law, an SVP eligible for conditional release who has a history of sexual conduct with children “shall not be placed within one-quarter mile of any public or private school providing instruction in kindergarten or any grades 1 to 12, inclusive.” (Welf. &Inst. Code, § 6608.5, subd. (f).) Earlier this year, in its majority opinion, the Sixth District Court of Appeal concluded this restriction applies to home schools because the only requirement in the statute is that the school provide instruction in kindergarten or grades one to 12. (People v. Superior Court (Cheek) (2023) 87 Cal.App.5th 373 380-382, review granted.)^[1] The court acknowledged the argument raised that home schools should be treated differently because “the Legislature designed the school proximity restriction to protect large numbers of children assembled away from parent supervision. The smaller number of children typically present at a home school can be adequately protected . . . by treating the presence of a home school not as a per se prohibition, but as one factor in the overall consideration of whether placement in a certain area poses too great a risk to community safety.” (Id. at p. 381.) However, the court stated that whether or not one agrees with this argument, the text of the statute did not support it. The court stated this is a question for the Legislature. (Ibid.)
   
   The court further concluded that under the current statute, the school need not even be in existence at the time notice is given to the community of a proposed SVP’s placement. (Cheeks, supra, 87 Cal.App.5th at p. 380.) In the case before the court, Liberty Health, the agency that manages the conditional release program, had spent over a year to identify a site where it believed Cheeks could be placed without posing an unacceptable risk to the community. (Id. at p. 376.) The court understood the lower court’s concern that interpreting the statute in this manner allowed any community member to create a home school to preclude an SVP’s placement. But the court noted the current statute, by requiring instruction in kindergarten or grades 1 to 12, protects against “disingenuous obstruction of sex offender placement.” (Id. at p. 380.) That being said, the court again stated it was “for the Legislature to remedy any perceived loophole, not the courts.” (Ibid.)
   
   The dissent opinion disagreed with the majority’s conclusion that the school proximity limitation applied to “any private home in which the residents elect to homeschool their children….” (Cheeks, supra, 87 Cal.App.5th at p. 383 (dis. opn. of Lie, J.).) The dissent found this inconsistent with the plain language of the statute (Welf. & Inst. Code, § 6608.5, subd. (f)), as well as with the Legislature's balancing of competing interests. (Cheeks, supra, at p. 383 (dis. opn. of Lie, J.).)

The legislative intent behind section 6608.5(f) was to create zones of exclusion around schools “‘to prevent sex offenders from living near where our children learn and play.’ [Citation.]” (In re E.J. (2010) 47 Cal.4th 1258, 1271….) The danger to be averted by section 6608.5(f) was not that of housing sex offenders in proximity to where children live: that remains a factor for discretionary consideration. It was driven by the “ambulatory practices of young children going to and coming from school” unsupervised. (People v. Christman (2014) 229 Cal.App.4th 810, 818 ….)

As the Attorney General notes in opposition to the petition, “Had the Legislature sought to bar SVPs from placement near homes where children are present, it would have done so. From the standpoint of a quantum of risk, a home school where one or even a handful of children are instructed by their parents is analytically indistinguishable from an ordinary home where a few children reside. And yet, the Legislature drew the residency-restriction line at public and private schools.” [fn. omitted.]

(Cheeks, supra, 87 Cal.App.5th at p. 386 (dis. opn. of Lie, J.).)

The dissent underscored that DSH, the state agency implementing the conditional release of SVPs since the inception of the statutory civil commitment scheme, had warned that further narrowing of placement options would make placement “effectively impossible.” (Id. at p. 388.) “…[W]e disregard that warning at the public's peril, leaving the superior courts little alternative to releasing SVPs as transients without the level of supervision feasible at a fixed address.” (Ibid.; see People v. Superior Court (Karsai) (2013) 213 Cal.App.4th 774, 789.) Estimating the number of home schools in the state to be in the tens of thousands, DSH warned the difficulty in determining their locations would “‘make conditional-release placement exceedingly difficult, if not impossible.’” (Cheeks, supra, at p. 388 (dis. opn. of Lie, J.).)

This bill would apply the school proximity restriction to home schools – i.e., codifying these concerns.

1. Argument in Support: According to County of San Diego, “The Sexually Violent Predator placement process and parameters are outlined in California Welfare and Institutions Code (WIC) Section 6608.5(f), which states, ‘Notwithstanding any other law, a person released under this section shall not be placed within one-quarter mile of any public or private school providing instruction in kindergarten or any grades 1 to 12.
   
   “Within this section of law, the definition of what a public or private school is has been the subject of debate, which has created confusion as to whether a home school site fits within the definition of a public or private school. AB 763 would clarify that for the purposes of this section, any school providing instruction to a child or children is considered a school, and this includes public schools, private schools, and private schools operated in a home environment as defined by the California Education Code. By clarifying that a home school site is school, AB 763 would prohibit the placement of a sexually violent predator from being placed within a ¼ mile of a home school.
   
   “In San Diego County, there are several home school sites, study, and charter programs for children of all ages, where students are taught in a residential home environment, alternative to standard and mainstream education in school facilities. Many of these children have special needs or developmental disabilities. The ambiguous definition of schools, as outlined in California law, has created confusion as to whether sexually violent predators can be placed near a home school site, putting children and families at risk. Sexually violent predators who commit acts of sexual violence are a danger to the health and safety of our local communities and AB 763 would clarify the law to protect children and families by prohibiting a person released on conditional release from being placed within ¼ mile of a home school site.”
   
2. Argument in Opposition: According to the California Public Defenders Association, “AB 763 is a rush to codify an interpretation of statutory language that is premature. Such a ban on housing near any home school is ill advised and creates policy incentives for individuals to prevaricate in an effort to keep individuals who have been to adjudicated to be no longer be dangerous from released from being placed in their communities on conditional release. Moreover, AB 763 risks making the entire Sexually Violent Predator Act (SVPA) unconstitutional.
   
   “AB 763 is an attempt to codify the very recent Sixth District Court of Appeals holding in People v. Superior Court of Santa Cruz County (Cheek) (2023) 87 Cal. App.5th 373 filed on January 6, 2023, while a petition for review is pending in the California Supreme Court S278628 .
   
   “While the petition for review is pending, the Cheek trial court is investigating whether a fraud was perpetrated on the court by the individuals claiming to be operating a ‘home school’. Meanwhile in San Diego, a trial court bound by the Cheek precedent is in the midst of an ongoing hearing on whether multiple people committed perjury claiming a ‘home school’ in an effort to thwart placement of another SVP. These efforts are consuming enormous resources and scarce tax dollars on the part of the local public defender’s office and the San Diego court.
   
   “AB 763 would render the SVPA unconstitutional. The patients who are the subject of AB 763, ones eligible under existing law for conditional release, have been adjudicated to no longer pose a threat to public safety. A patient who no longer poses such a threat must be released from confinement. (See Kansas v. Hendricks (1997) 521 U.S. 346; People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 193.) Release from confinement may be unconditional release or conditional. The SVPA provides for both, with conditional release a prerequisite to unconditional release. Under the SVPA, conditional release allows a supervised transition, continued treatment, and an opportunity to monitor to ensure that the patient continues to present no danger to the public while in the community -- before the patient may be considered for unconditional release.
   
   “AB 763 would so limit conditional release as to render its availability illusory. AB 763 would add home schools to further circumscribe the locations eligible for placement. Under AB 763, certain conditionally released patients effectively would be excluded from every residence in every inhabited area, because anyone objecting to the placement could establish a home school interspersing them throughout residential communities. Because the SVPA does not provide for unconditional release without a period of conditional relief, the availability of unconditional release would become illusory. Without an effective provision for unconditional release, the SVPA will be invalidated under Kansas v. Hendricks, supra, 521 U.S. 346. Alternatively, to avoid invalidation of the SVPA, a court might release a patient as a transient, that is, without a fixed location if none can be found within the county of placement. (See People v. Superior Court (Karsai) (2013) 213 Cal.App.4th 774.)
   
   “Presenting yet another risk to the validity of the SVPA, the categorical placement restrictions that AB 736 would impose fail to connect a patient’s particular condition or history to the exclusion. Such non-particularized, arbitrary residency exclusions would subject the SVPA to the fate of Jessica’s Law, whose residency restrictions were struck down as unconstitutional in In Re Taylor (2015) 60 Cal.4th 1019.”
   
3. Prior Legislation:
   
   1. AB 1641 (Maienschein), Chapter 104, Statutes of 2022, required an SVP on conditional release or outpatient status to be monitored by a global positioning system until the person is unconditionally discharged.
      
   2. AB 1835 (Lackey), of the 2021-2022 Legislative Session, would have required a conditionally released SVP to be placed at a location within the person’s city of domicile, if any, or in which the person has family, social, economic ties, and access to reentry services, unless it would pose a risk to the victim. Also would have required DHS to consider whether the placement has access to public transit, health and mental health providers, and, whether it would contribute to an overconcentration of SVPs on conditional release in the area. AB 1835 was not heard in this committee at the request of the author.
      
   3. SB 841 (Jones), of the 2021-2022 Legislative Session, would have created the Sexually Violent Predator Accountability, Fairness, and Enforcement Act, which would have required DSH to take specified actions regarding the placement of SVPs in communities, including preparing an annual report on, among other things, the number and location of sexually violent predators under department supervision. SB 841 also would have required DSH, the Department of Corrections and Rehabilitation, and the Department of Forestry and Fire Protection to report to the Governor and the Legislature the status of suitable placements available for SVPs at their properties. SB 841 failed passage in the Senate Public Safety Committee.
      
   4. SB 1034 (Atkins), Chapter 880, Statutes of 2022, established a process for finding housing for an SVP who has been found to no longer be a danger and sets forth what a court must do in order to determine extraordinary circumstances exist so that an SVP cannot be placed in their county of domicile.
      
   5. SB 1333 (Bates), of the 2021-2022 Legislative Session, would have required, as a condition to placing a person in a county other than their county of domicile, the proposed designated county of placement be provided specified evidence prior to the court ordering the person to be placed in a county other than the county of domicile. Further, it would have required the department to provide additional information to a county of placement when a petition to revoke conditional release is filed. SB 1333 failed passage in the Senate Public Safety Committee.
      
   6. AB 821 (Cooper), of the 2021-2022 Legislative Session, would have placed the burden of showing extraordinary circumstances on DSH by clear and convincing evidence when a court considers whether to place a person no longer found to be an SVP in a county other than their county of residence and would have limited how a lack of housing may be used to justify extraordinary circumstances for conditional release in a county other than county of residence. AB 821 was pulled by the author and not heard in this committee.
      
   7. AB 255 (Gallagher), Chapter 39, Statutes of 2017, specified that courts must consider the connections to the community when designating the placement of an SVP in a county for conditional release.
      
   8. AB 262 (Lackey), of the 2015-2016 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.
      

REGISTERED SUPPORT / OPPOSITION:

Support

County of San Diego

Opposition

California Public Defenders Association (CPDA)

Disability Rights California

2 Private Individuals

Analysis Prepared by:

Cheryl Anderson / PUB. S. / (916) 319-3744

1. A petition for review on behalf of DHS is currently pending before the California Supreme Court, S278628. ↑