6600. As used in this article, the following terms have the
following meanings:
(a) (1) "Sexually violent predator" means a person who has been
convicted of a sexually violent offense against one or more victims
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.
(2) For purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense:
(A) A prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b).
(B) A conviction for an offense described in subdivision (b) that
was committed prior to July 1, 1977, and that resulted in an
indeterminate prison sentence.
(C) A prior conviction in another jurisdiction for an offense that
includes all of the elements of an offense described in subdivision
(b).
(D) A conviction for an offense under a predecessor statute that
includes all of the elements of an offense described in subdivision
(b).
(E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
(F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b).
(G) A conviction resulting in a finding that the person was a
mentally disordered sex offender.
(H) A prior conviction for an offense described in subdivision (b)
for which the person was committed to the Department of the Youth
Authority pursuant to Section 1731.5.
(I) A prior conviction for an offense described in subdivision (b)
that resulted in an indeterminate prison sentence.
(3) Conviction of one or more of the crimes enumerated in this
section shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination. The existence of any
prior convictions may be shown with documentary evidence. The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may
be shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of Mental
Health. Jurors shall be admonished that they may not find a person a
sexually violent predator based on prior offenses absent relevant
evidence of a currently 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.
(4) The provisions of this section shall apply to any person
against whom proceedings were initiated for commitment as a sexually
violent predator on or after January 1, 1996.
(b) "Sexually violent offense" means the following acts when
committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
286, 288, 288a, or 289 of the Penal Code.
(c) "Diagnosed mental disorder" includes a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a
degree constituting the person a menace to the health and safety of
others.
(d) "Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
(e) "Predatory" means an act is directed toward a stranger, a
person of casual acquaintance with whom no substantial relationship
exists, or an individual with whom a relationship has been
established or promoted for the primary purpose of victimization.
(f) "Recent overt act" means any criminal act that manifests a
likelihood that the actor may engage in sexually violent predatory
criminal behavior.
(g) Notwithstanding any other provision of law and for purposes of
this section, a prior juvenile adjudication of a sexually violent
offense may constitute a prior conviction for which the person
received a determinate term if all of the following apply:
(1) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(2) The prior offense is a sexually violent offense as specified
in subdivision (b).
(3) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 because of the person's commission of the
offense giving rise to the juvenile court adjudication.
(4) The juvenile was committed to the Department of the Youth
Authority for the sexually violent offense.
(h) A minor adjudged a ward of the court for commission of an
offense that is defined as a sexually violent offense shall be
entitled to specific treatment as a sexual offender. The failure of a
minor to receive that treatment shall not constitute a defense or
bar to a determination that any person is a sexually violent predator
within the meaning of this article.
6600.05. (a) Until a permanent housing and treatment facility is
available, Atascadero State Hospital shall be used whenever a person
is committed to a secure facility for mental health treatment
pursuant to this article and is placed in a state hospital under the
direction of the State Department of Mental Health unless there are
unique circumstances that would preclude the placement of a person at
that facility. If a state hospital is not used, the facility to be
used shall be located on a site or sites determined by the Director
of Corrections and the Director of Mental Health. In no case shall a
person committed to a secure facility for mental health treatment
pursuant to this article be placed at Metropolitan State Hospital or
Napa State Hospital.
(b) A permanent facility for the housing and treatment of persons
committed pursuant to this article shall be located on a site or
sites determined by the Director of Corrections and the Director of
Mental Health, with approval by the Legislature through a trailer
bill or other legislation. The State Department of Mental Health
shall be responsible for operation of the facility, including the
provision of treatment.
6600.1. If the victim of an underlying offense that is specified in
subdivision (b) of Section 6600 is a child under the age of 14, the
offense shall constitute a "sexually violent offense" for purposes of
Section 6600.
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health, one or both of whom may be independent
professionals as defined in subdivision (g). If both evaluators
concur that the person has a diagnosed mental disorder so that he or
she is likely to engage in acts of sexual violence without
appropriate treatment and custody, the Director of Mental Health
shall forward a request for a petition for commitment under Section
6602 to the county designated in subdivision (i). Copies of the
evaluation reports and any other supporting documents shall be made
available to the attorney designated by the county pursuant to
subdivision (i) who may file a petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) (1) The department shall provide the fiscal and policy
committees of the Legislature, including the Chairperson of the Joint
Legislative Budget Committee, and the Department of Finance, with a
semiannual update on the progress made to hire qualified state
employees to conduct the evaluation required pursuant to subdivision
(d). The first update shall be provided no later than July 10, 2009.
(2) On or before January 2, 2010, the department shall report to
the Legislature on all of the following:
(A) The costs to the department for the sexual offender commitment
program attributable to the provisions in Proposition 83 of the
November 2006 general election, otherwise known as Jessica's Law.
(B) The number and proportion of inmates evaluated by the
department for commitment to the program as a result of the expanded
evaluation and commitment criteria in Jessica's Law.
(C) The number and proportion of those inmates who have actually
been committed for treatment in the program.
(3) This section shall remain in effect and be repealed on the
date that the director executes a declaration, which shall be
provided to the fiscal and policy committees of the Legislature,
including the Chairperson of the Joint Legislative Budget Committee,
and the Department of Finance, specifying that sufficient qualified
state employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health. If both evaluators concur that the person
has a diagnosed mental disorder so that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health shall forward a request for a
petition for commitment under Section 6602 to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) This section shall become operative on the date that the
director executes a declaration, which shall be provided to the
fiscal and policy committees of the Legislature, including the
Chairperson of the Joint Legislative Budget Committee, and the
Department of Finance, specifying that sufficient qualified state
employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
6601.3. (a) Upon a showing of good cause, the Board of Prison Terms
may order that a person referred to the State Department of Mental
Health pursuant to subdivision (b) of Section 6601 remain in custody
for no more than 45 days beyond the person's scheduled release date
for full evaluation pursuant to subdivisions (c) to (i), inclusive,
of Section 6601.
(b) For purposes of this section, good cause means circumstances
where there is a recalculation of credits or a restoration of denied
or lost credits, a resentencing by a court, the receipt of the
prisoner into custody, or equivalent exigent circumstances which
result in there being less than 45 days prior to the person's
scheduled release date for the full evaluation described in
subdivisions (c) to (i), inclusive, of Section 6601.
6601.5. Upon filing of the petition and a request for review under
this section, a judge of the superior court shall review the petition
and determine whether the petition states or contains sufficient
facts that, if true, would constitute probable cause to believe that
the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release. If the
judge determines that the petition, on its face, supports a finding
of probable cause, the judge shall order that the person be detained
in a secure facility until a hearing can be completed pursuant to
Section 6602. The probable cause hearing provided for in Section 6602
shall commence within 10 calendar days of the date of the order
issued by the judge pursuant to this section.
6602. (a) A judge of the superior court shall review the petition
and shall determine whether there is probable cause to believe that
the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release. The
person named in the petition shall be entitled to assistance of
counsel at the probable cause hearing. Upon the commencement of the
probable cause hearing, the person shall remain in custody pending
the completion of the probable cause hearing. If the judge determines
there is not probable cause, he or she shall dismiss the petition
and any person subject to parole shall report to parole. If the judge
determines that there is probable cause, the judge shall order that
the person remain in custody in a secure facility until a trial is
completed and shall order that a trial be conducted to determine
whether the person is, by reason of a diagnosed mental disorder, a
danger to the health and safety of others in that the person is
likely to engage in acts of sexual violence upon his or her release
from the jurisdiction of the Department of Corrections or other
secure facility.
(b) The probable cause hearing shall not be continued except upon
a showing of good cause by the party requesting the continuance.
(c) The court shall notify the State Department of Mental Health
of the outcome of the probable cause hearing by forwarding to the
department a copy of the minute order of the court within 15 days of
the decision.
6602.5. (a) No person may be placed in a state hospital pursuant to
the provisions of this article until there has been a determination
pursuant to Section 6601.3 or 6602 that there is probable cause to
believe that the individual named in the petition is likely to engage
in sexually violent predatory criminal behavior.
(b) The State Department of Mental Health shall identify each
person for whom a petition pursuant to this article has been filed
who is in a state hospital on or after January 1, 1998, and who has
not had a probable cause hearing pursuant to Section 6602. The State
Department of Mental Health shall notify the court in which the
petition was filed that the person has not had a probable cause
hearing. Copies of the notice shall be provided by the court to the
attorneys of record in the case. Within 30 days of notice by the
State Department of Mental Health, the court shall either order the
person removed from the state hospital and returned to local custody
or hold a probable cause hearing pursuant to Section 6602.
(c) In no event shall the number of persons referred pursuant to
subdivision (b) to the superior court of any county exceed 10 in any
30-day period, except upon agreement of the presiding judge of the
superior court, the district attorney, the public defender, the
sheriff, and the Director of Mental Health.
(d) This section shall be implemented in Los Angeles County
pursuant to a letter of agreement between the Department of Mental
Health, the Los Angeles County district attorney, the Los Angeles
County public defender, the Los Angeles County sheriff, and the Los
Angeles County superior court. The number of persons referred to the
superior court of Los Angeles County pursuant to subdivision (b)
shall be governed by the letter of agreement.
6603. (a) A person subject to this article shall be entitled to a
trial by jury, to the assistance of counsel, to the right to retain
experts or professional persons to perform an examination on his or
her behalf, and to have access to all relevant medical and
psychological records and reports. In the case of a person who is
indigent, the court shall appoint counsel to assist him or her, and,
upon the person's request, assist the person in obtaining an expert
or professional person to perform an examination or participate in
the trial on the person's behalf. Any right that may exist under this
section to request DNA testing on prior cases shall be made in
conformity with Section 1405 of the Penal Code.
(b) The attorney petitioning for commitment under this article
shall have the right to demand that the trial be before a jury.
(c) (1) If the attorney petitioning for commitment under this
article determines that updated evaluations are necessary in order to
properly present the case for commitment, the attorney may request
the State Department of Mental Health to perform updated evaluations.
If one or more of the original evaluators is no longer available to
testify for the petitioner in court proceedings, the attorney
petitioning for commitment under this article may request the State
Department of Mental Health to perform replacement evaluations. When
a request is made for updated or replacement evaluations, the State
Department of Mental Health shall perform the requested evaluations
and forward them to the petitioning attorney and to the counsel for
the person subject to this article. However, updated or replacement
evaluations shall not be performed except as necessary to update one
or more of the original evaluations or to replace the evaluation of
an evaluator who is no longer available to testify for the petitioner
in court proceedings. These updated or replacement evaluations shall
include review of available medical and psychological records,
including treatment records, consultation with current treating
clinicians, and interviews of the person being evaluated, either
voluntarily or by court order. If an updated or replacement
evaluation results in a split opinion as to whether the person
subject to this article meets the criteria for commitment, the State
Department of Mental Health shall conduct two additional evaluations
in accordance with subdivision (f) of Section 6601.
(2) For purposes of this subdivision, "no longer available to
testify for the petitioner in court proceedings" means that the
evaluator is no longer authorized by the Director of Mental Health to
perform evaluations regarding sexually violent predators as a result
of any of the following:
(A) The evaluator has failed to adhere to the protocol of the
State Department of Mental Health.
(B) The evaluator's license has been suspended or revoked.
(C) The evaluator is unavailable pursuant to Section 240 of the
Evidence Code.
(d) Nothing in this section shall prevent the defense from
presenting otherwise relevant and admissible evidence.
(e) If the person subject to this article or the petitioning
attorney does not demand a jury trial, the trial shall be before the
court without a jury.
(f) A unanimous verdict shall be required in any jury trial.
(g) The court shall notify the State Department of Mental Health
of the outcome of the trial by forwarding to the department a copy of
the minute order of the court within 72 hours of the decision.
(h) Nothing in this section shall limit any legal or equitable
right that a person may have to request DNA testing.
6603.3. (a) (1) Except as provided in paragraph (2), no attorney
may disclose or permit to be disclosed to a person subject to this
article, family members of the person subject to this article, or any
other person, the name, address, telephone number, or other
identifying information of a victim or witness whose name is
disclosed to the attorney pursuant to Section 6603 and Chapter 1
(commencing with Section 2016.010) of Part 4 of Title 4 of the Code
of Civil Procedure, unless specifically permitted to do so by the
court after a hearing and showing of good cause.
(2) Notwithstanding paragraph (1), an attorney may disclose or
permit to be disclosed, the name, address, telephone number, or other
identifying information of a victim or witness to persons employed
by the attorney or to a person hired or appointed for the purpose of
assisting the person subject to this article in the preparation of
the case, if that disclosure is required for that preparation.
Persons provided this information shall be informed by the attorney
that further dissemination of the information, except as provided by
this section, is prohibited.
(3) A willful violation of this subdivision by an attorney,
persons employed by an attorney, or persons appointed by the court is
a misdemeanor.
(b) If the person subject to this article is acting as his or her
own attorney, the court shall endeavor to protect the name, address,
telephone number, or other identifying information of a victim or
witness by providing for contact only through a private investigator
licensed by the Department of Consumer Affairs and appointed by the
court or by imposing other reasonable restrictions, absent a showing
of good cause as determined by the court.
6603.5. No employee or agent of the Department of Corrections and
Rehabilitation, the Board of Parole Hearings, or the State Department
of Mental Health shall disclose to any person, except to employees
or agents of each named department, the prosecutor, the respondent's
counsel, licensed private investigators hired or appointed for the
respondent, or other persons or agencies where authorized or required
by law, the name, address, telephone number, or other identifying
information of a person who was involved in a civil commitment
hearing under this article as the victim of a sex offense except
where authorized or required by law.
6603.7. (a) Except as provided in Section 6603.3, the court, at the
request of the victim of a sex offense relevant in a proceeding
under this article, may order the identity of the victim in all
records and during all proceedings to be either Jane Doe or John Doe,
if the court finds that the order is reasonably necessary to protect
the privacy of the person and will not unduly prejudice the party
petitioning for commitment under this article or the person subject
to this article.
(b) If the court orders the victim to be identified as Jane Doe or
John Doe pursuant to subdivision (a), and if there is a jury trial,
the court shall instruct the jury at the beginning and at the end of
the trial that the victim is being so identified only for the
purposes of protecting his or her privacy.
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed for an indeterminate term to the
custody of the State Department of Mental Health for appropriate
treatment and confinement in a secure facility designated by the
Director of Mental Health. The facility shall be located on the
grounds of an institution under the jurisdiction of the Department of
Corrections.
6604.1. (a) The indeterminate term of commitment provided for in
Section 6604 shall commence on the date upon which the court issues
the initial order of commitment pursuant to that section.
(b) The person shall be evaluated by two practicing psychologists
or psychiatrists, or by one practicing psychologist and one
practicing psychiatrist, designated by the State Department of Mental
Health. The provisions of subdivisions (c) to (i), inclusive, of
Section 6601 shall apply to evaluations performed for purposes of
extended commitments. The rights, requirements, and procedures set
forth in Section 6603 shall apply to all commitment proceedings.
6605. (a) A person found to be a sexually violent predator and
committed to the custody of the State Department of Mental Health
shall have a current examination of his or her mental condition made
at least once every year. The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional
release to a less restrictive alternative or an unconditional release
is in the best interest of the person and conditions can be imposed
that would adequately protect the community. The State Department of
Mental Health shall file this periodic report with the court that
committed the person under this article. The report shall be in the
form of a declaration and shall be prepared by a professionally
qualified person. A copy of the report shall be served on the
prosecuting agency involved in the initial commitment and upon the
committed person. The person may retain, or if he or she is indigent
and so requests, the court may appoint, a qualified expert or
professional person to examine him or her, and the expert or
professional person shall have access to all records concerning the
person.
(b) If the State Department of Mental Health determines that
either: (1) the person's condition has so changed that the person no
longer meets the definition of a sexually violent predator, or (2)
conditional release to a less restrictive alternative is in the best
interest of the person and conditions can be imposed that adequately
protect the community, the director shall authorize the person to
petition the court for conditional release to a less restrictive
alternative or for an unconditional discharge. The petition shall be
filed with the court and served upon the prosecuting agency
responsible for the initial commitment. The court, upon receipt of
the petition for conditional release to a less restrictive
alternative or unconditional discharge, shall order a show cause
hearing at which the court can consider the petition and any
accompanying documentation provided by the medical director, the
prosecuting attorney, or the committed person.
(c) If the court at the show cause hearing determines that
probable cause exists to believe that the committed person's
diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to engage
in sexually violent criminal behavior if discharged, then the court
shall set a hearing on the issue.
(d) At the hearing, the committed person shall have the right to
be present and shall be entitled to the benefit of all constitutional
protections that were afforded to him or her at the initial
commitment proceeding. The attorney designated by the county pursuant
to subdivision (i) of Section 6601 shall represent the state and
shall have the right to demand a jury trial and to have the committed
person evaluated by experts chosen by the state. The committed
person also shall have the right to demand a jury trial and to have
experts evaluate him or her on his or her behalf. The court shall
appoint an expert if the person is indigent and requests an
appointment. The burden of proof at the hearing shall be on the state
to prove 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 criminal behavior if discharged. Where the person's failure
to participate in or complete treatment is relied upon as proof that
the person's condition has not changed, and there is evidence to
support that reliance, the jury shall be instructed substantially as
follows:
"The committed person's failure to participate in or complete the
State Department of Mental Health Sex Offender Commitment Program
(SOCP) are facts that, if proved, may be considered as evidence that
the committed person's condition has not changed. The weight to be
given that evidence is a matter for the jury to determine."
(e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for an indeterminate period from
the date of this ruling. If the court or jury rules for the committed
person, he or she shall be unconditionally released and
unconditionally discharged.
(f) In the event that the State Department of Mental Health has
reason to believe that a person committed to it as a sexually violent
predator is no longer a sexually violent predator, it shall seek
judicial review of the person's commitment pursuant to the procedures
set forth in Section 7250 in the superior court from which the
commitment was made. If the superior court determines that the person
is no longer a sexually violent predator, he or she shall be
unconditionally released and unconditionally discharged.
6606. (a) A person who is committed under this article shall be
provided with programming by the State Department of Mental Health
which shall afford the person with treatment for his or her diagnosed
mental disorder. Persons who decline treatment shall be offered the
opportunity to participate in treatment on at least a monthly basis.
(b) Amenability to treatment is not required for a finding that
any person is a person described in Section 6600, nor is it required
for treatment of that person. Treatment does not mean that the
treatment be successful or potentially successful, nor does it mean
that the person must recognize his or her problem and willingly
participate in the treatment program.
(c) The programming provided by the State Department of Mental
Health in facilities shall be consistent with current institutional
standards for the treatment of sex offenders, and shall be based on a
structured treatment protocol developed by the State Department of
Mental Health. The protocol shall describe the number and types of
treatment components that are provided in the program, and shall
specify how assessment data will be used to determine the course of
treatment for each individual offender. The protocol shall also
specify measures that will be used to assess treatment progress and
changes with respect to the individual's risk of reoffense.
(d) Notwithstanding any other provision of law, except as to
requirements relating to fire and life safety of persons with mental
illness, and consistent with information and standards described in
subdivision (c), the department is authorized to provide the
programming using an outpatient/day treatment model, wherein
treatment is provided by licensed professional clinicians in living
units not licensed as health facility beds within a secure facility
setting, on less than a 24-hour a day basis. The department shall
take into consideration the unique characteristics, individual needs,
and choices of persons committed under this article, including
whether or not a person needs antipsychotic medication, whether or
not a person has physical medical conditions, and whether or not a
person chooses to participate in a specified course of offender
treatment. The department shall ensure that policies and procedures
are in place that address changes in patient needs, as well as
patient choices, and respond to treatment needs in a timely fashion.
The department, in implementing this subdivision, shall be allowed by
the State Department of Health Services to place health facility
beds at Coalinga State Hospital in suspense for a period of up to six
years. Coalinga State Hospital may remove all or any portion of its
voluntarily suspended beds into active license status by request to
the State Department of Health Services. The facility's request shall
be granted unless the suspended beds fail to comply with current
operational requirements for licensure.
(e) The department shall meet with each patient who has chosen not
to participate in a specific course of offender treatment during
monthly treatment planning conferences. At these conferences the
department shall explain treatment options available to the patient,
offer and re-offer treatment to the patient, seek to obtain the
patient's cooperation in the recommended treatment options, and
document these steps in the patient's health record. The fact that a
patient has chosen not to participate in treatment in the past shall
not establish that the patient continues to choose not to
participate.
6607. (a) If the Director of Mental Health determines that the
person's diagnosed mental disorder has so changed that the person is
not likely to commit acts of predatory sexual violence while under
supervision and treatment in the community, the director shall
forward a report and recommendation for conditional release in
accordance with Section 6608 to the county attorney designated in
subdivision (i) of Section 6601, the attorney of record for the
person, and the committing court.
(b) When a report and recommendation for conditional release is
filed by the Director of Mental Health pursuant to subdivision (a),
the court shall set a hearing in accordance with the procedures set
forth in Section 6608.
6608. (a) Nothing in this article shall prohibit the person who has
been committed as a sexually violent predator from petitioning the
court for conditional release or an unconditional discharge without
the recommendation or concurrence of the Director of Mental Health.
If a person has previously filed a petition for conditional release
without the concurrence of the director and the court determined,
either upon review of the petition or following a hearing, that the
petition was frivolous or that the committed person's condition had
not so changed that he or she would not be a danger to others in that
it is not likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment in the
community, then the court shall deny the subsequent petition unless
it contains facts upon which a court could find that the condition of
the committed person had so changed that a hearing was warranted.
Upon receipt of a first or subsequent petition from a committed
person without the concurrence of the director, 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. The person petitioning for conditional release and
unconditional discharge under this subdivision shall be entitled to
assistance of counsel. The person petitioning for conditional release
or unconditional discharge shall serve a copy of the petition on the
State Department of Mental Health at the time the petition is filed
with the court.
(b) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 30 court days before the hearing date.
(c) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(d) 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. 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, the court shall order the
committed person placed with an appropriate forensic conditional
release program operated by the state for one year. A substantial
portion of the state-operated forensic conditional release program
shall include outpatient supervision and treatment. The court shall
retain jurisdiction of the person throughout the course of the
program. At the end of one year, the court shall hold a hearing to
determine if the person should be unconditionally released from
commitment on the basis that, by reason of a diagnosed mental
disorder, he or she is not a danger to the health and safety of
others in that it is not likely that he or she will engage in
sexually violent criminal behavior. The court shall not make this
determination until the person has completed at least one year in the
state-operated forensic conditional release program. The court shall
notify the Director of Mental Health of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(f) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 30 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(g) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code.
(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program or if the petition
for unconditional discharge is denied, the person may not file a new
application until one year has elapsed from the date of the denial.
(i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(j) If the petition for conditional release is not made by the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.
(k) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a locked
facility shall count toward the term of commitment.
6608.5. (a) A person who is conditionally released pursuant to this
article shall be placed in the county of the domicile of the person
prior to the person's incarceration, unless the court finds that
extraordinary circumstances require placement outside the county of
domicile.
(b) (1) For the purposes of this section, "county of domicile"
means the county where the person has his or her true, fixed, and
permanent home and principal residence and to which he or she has
manifested the intention of returning whenever he or she is absent.
For the purposes of determining the county of domicile, the court may
consider information found on a California driver's license,
California identification card, recent rent or utility receipt,
printed personalized checks or other recent banking documents showing
that person's name and address, or information contained in an
arrest record, probation officer's report, trial transcript, or other
court document. If no information can be identified or verified, the
county of domicile of the individual shall be considered to be 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.
(2) In a case where the person committed a crime while being held
for treatment in a state hospital, or while being confined in a state
prison or local jail facility, the county wherein that facility was
located shall not be considered the county of domicile unless the
person resided in that county prior to being housed in the hospital,
prison, or jail.
(c) For the purposes of this section, "extraordinary circumstances"
means circumstances that would inordinately limit the department's
ability to effect conditional release of the person in the county of
domicile in accordance with Section 6608 or any other provision of
this article, and the procedures described in Sections 1605 to 1610,
inclusive, of the Penal Code.
(d) 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 sexually violent predators who are about to be
conditionally released under Section 6608. Upon notification by the
department of a person's potential or expected conditional release
under Section 6608, the county of domicile shall notify the
department of the name of the designated agency or program, at least
60 days before the date of the potential or expected release.
(e) In recommending a specific placement for community outpatient
treatment, the department or its designee shall consider all of the
following:
(1) The concerns and proximity of the victim or the victim's next
of kin.
(2) The age and profile of the victim or victims in the sexually
violent offenses committed by the person subject to placement. For
purposes of this subdivision, the "profile" of a victim includes, but
is not limited to, gender, physical appearance, economic background,
profession, and other social or personal characteristics.
(f) Notwithstanding any other provision of 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 of grades 1 to 12, inclusive, if either of the following
conditions exist:
(1) The person has previously been convicted of a violation of
Section 288.5 of, or subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 of, the Penal Code.
(2) The court finds that the person has a history of improper
sexual conduct with children.
6608.7. The State Department of Mental Health may enter into an
interagency agreement or contract with the Department of Corrections
or with local law enforcement agencies for services related to
supervision or monitoring of sexually violent predators who have been
conditionally released into the community under the forensic
conditional release program pursuant to this article.
6608.8. (a) For any person who is proposed for community outpatient
treatment under the forensic conditional release program, the
department shall provide to the court a copy of the written contract
entered into with any public or private person or entity responsible
for monitoring and supervising the patient's outpatient placement and
treatment program. This subdivision does not apply to subcontracts
between the contractor and clinicians providing treatment and related
services to the person.
(b) The terms and conditions of conditional release shall be
drafted to include reasonable flexibility to achieve the aims of
conditional release, and to protect the public and the conditionally
released person.
(c) The court in its discretion may order the department to,
notwithstanding Section 4514 or 5328, provide a copy of the written
terms and conditions of conditional release to the sheriff or chief
of police, or both, that have jurisdiction over the proposed or
actual placement community.
(d) (1) Except in an emergency, the department or its designee
shall not alter the terms and conditions of conditional release
without the prior approval of the court.
(2) The department shall provide notice to the person committed
under this article and the district attorney or designated county
counsel of any proposed change in the terms and conditions of
conditional release.
(3) The court on its own motion, or upon the motion of either
party to the action, may set a hearing on the proposed change. The
hearing shall be held as soon as is practicable.
(4) If a hearing on the proposed change is held, the court shall
state its findings on the record. If the court approves a change in
the terms and conditions of conditional release without a hearing,
the court shall issue a written order.
(5) In the case of an emergency, the department or its designee
may deviate from the terms and conditions of the conditional release
if necessary to protect public safety or the safety of the person. If
a hearing on the emergency is set by the court or requested by
either party, the hearing shall be held as soon as practicable. The
department, its designee, and the parties shall endeavor to resolve
routine matters in a cooperative fashion without the need for a
formal hearing.
(e) Notwithstanding any provision of this section, including, but
not limited to, subdivision (d), matters concerning the residential
placement, including any changes or proposed changes in the residence
of the person, shall be considered and determined pursuant to
Section 6609.1.
6609. Within 10 days of a request made by the chief of police of a
city or the sheriff of a county, the State Department of Mental
Health shall provide the following information concerning each person
committed as a sexually violent predator who is receiving outpatient
care in a conditional release program in that city or county: name,
address, date of commitment, county from which committed, date of
placement in the conditional release program, fingerprints, and a
glossy photograph no smaller than 3 1/8
6600. As used in this article, the following terms have the
following meanings:
(a) (1) "Sexually violent predator" means a person who has been
convicted of a sexually violent offense against one or more victims
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.
(2) For purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense:
(A) A prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b).
(B) A conviction for an offense described in subdivision (b) that
was committed prior to July 1, 1977, and that resulted in an
indeterminate prison sentence.
(C) A prior conviction in another jurisdiction for an offense that
includes all of the elements of an offense described in subdivision
(b).
(D) A conviction for an offense under a predecessor statute that
includes all of the elements of an offense described in subdivision
(b).
(E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
(F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b).
(G) A conviction resulting in a finding that the person was a
mentally disordered sex offender.
(H) A prior conviction for an offense described in subdivision (b)
for which the person was committed to the Department of the Youth
Authority pursuant to Section 1731.5.
(I) A prior conviction for an offense described in subdivision (b)
that resulted in an indeterminate prison sentence.
(3) Conviction of one or more of the crimes enumerated in this
section shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination. The existence of any
prior convictions may be shown with documentary evidence. The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may
be shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of Mental
Health. Jurors shall be admonished that they may not find a person a
sexually violent predator based on prior offenses absent relevant
evidence of a currently 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.
(4) The provisions of this section shall apply to any person
against whom proceedings were initiated for commitment as a sexually
violent predator on or after January 1, 1996.
(b) "Sexually violent offense" means the following acts when
committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
286, 288, 288a, or 289 of the Penal Code.
(c) "Diagnosed mental disorder" includes a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a
degree constituting the person a menace to the health and safety of
others.
(d) "Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
(e) "Predatory" means an act is directed toward a stranger, a
person of casual acquaintance with whom no substantial relationship
exists, or an individual with whom a relationship has been
established or promoted for the primary purpose of victimization.
(f) "Recent overt act" means any criminal act that manifests a
likelihood that the actor may engage in sexually violent predatory
criminal behavior.
(g) Notwithstanding any other provision of law and for purposes of
this section, a prior juvenile adjudication of a sexually violent
offense may constitute a prior conviction for which the person
received a determinate term if all of the following apply:
(1) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(2) The prior offense is a sexually violent offense as specified
in subdivision (b).
(3) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 because of the person's commission of the
offense giving rise to the juvenile court adjudication.
(4) The juvenile was committed to the Department of the Youth
Authority for the sexually violent offense.
(h) A minor adjudged a ward of the court for commission of an
offense that is defined as a sexually violent offense shall be
entitled to specific treatment as a sexual offender. The failure of a
minor to receive that treatment shall not constitute a defense or
bar to a determination that any person is a sexually violent predator
within the meaning of this article.
6600.05. (a) Until a permanent housing and treatment facility is
available, Atascadero State Hospital shall be used whenever a person
is committed to a secure facility for mental health treatment
pursuant to this article and is placed in a state hospital under the
direction of the State Department of Mental Health unless there are
unique circumstances that would preclude the placement of a person at
that facility. If a state hospital is not used, the facility to be
used shall be located on a site or sites determined by the Director
of Corrections and the Director of Mental Health. In no case shall a
person committed to a secure facility for mental health treatment
pursuant to this article be placed at Metropolitan State Hospital or
Napa State Hospital.
(b) A permanent facility for the housing and treatment of persons
committed pursuant to this article shall be located on a site or
sites determined by the Director of Corrections and the Director of
Mental Health, with approval by the Legislature through a trailer
bill or other legislation. The State Department of Mental Health
shall be responsible for operation of the facility, including the
provision of treatment.
6600.1. If the victim of an underlying offense that is specified in
subdivision (b) of Section 6600 is a child under the age of 14, the
offense shall constitute a "sexually violent offense" for purposes of
Section 6600.
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health, one or both of whom may be independent
professionals as defined in subdivision (g). If both evaluators
concur that the person has a diagnosed mental disorder so that he or
she is likely to engage in acts of sexual violence without
appropriate treatment and custody, the Director of Mental Health
shall forward a request for a petition for commitment under Section
6602 to the county designated in subdivision (i). Copies of the
evaluation reports and any other supporting documents shall be made
available to the attorney designated by the county pursuant to
subdivision (i) who may file a petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) (1) The department shall provide the fiscal and policy
committees of the Legislature, including the Chairperson of the Joint
Legislative Budget Committee, and the Department of Finance, with a
semiannual update on the progress made to hire qualified state
employees to conduct the evaluation required pursuant to subdivision
(d). The first update shall be provided no later than July 10, 2009.
(2) On or before January 2, 2010, the department shall report to
the Legislature on all of the following:
(A) The costs to the department for the sexual offender commitment
program attributable to the provisions in Proposition 83 of the
November 2006 general election, otherwise known as Jessica's Law.
(B) The number and proportion of inmates evaluated by the
department for commitment to the program as a result of the expanded
evaluation and commitment criteria in Jessica's Law.
(C) The number and proportion of those inmates who have actually
been committed for treatment in the program.
(3) This section shall remain in effect and be repealed on the
date that the director executes a declaration, which shall be
provided to the fiscal and policy committees of the Legislature,
including the Chairperson of the Joint Legislative Budget Committee,
and the Department of Finance, specifying that sufficient qualified
state employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health. If both evaluators concur that the person
has a diagnosed mental disorder so that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health shall forward a request for a
petition for commitment under Section 6602 to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) This section shall become operative on the date that the
director executes a declaration, which shall be provided to the
fiscal and policy committees of the Legislature, including the
Chairperson of the Joint Legislative Budget Committee, and the
Department of Finance, specifying that sufficient qualified state
employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
6601.3. (a) Upon a showing of good cause, the Board of Prison Terms
may order that a person referred to the State Department of Mental
Health pursuant to subdivision (b) of Section 6601 remain in custody
for no more than 45 days beyond the person's scheduled release date
for full evaluation pursuant to subdivisions (c) to (i), inclusive,
of Section 6601.
(b) For purposes of this section, good cause means circumstances
where there is a recalculation of credits or a restoration of denied
or lost credits, a resentencing by a court, the receipt of the
prisoner into custody, or equivalent exigent circumstances which
result in there being less than 45 days prior to the person's
scheduled release date for the full evaluation described in
subdivisions (c) to (i), inclusive, of Section 6601.
6601.5. Upon filing of the petition and a request for review under
this section, a judge of the superior court shall review the petition
and determine whether the petition states or contains sufficient
facts that, if true, would constitute probable cause to believe that
the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release. If the
judge determines that the petition, on its face, supports a finding
of probable cause, the judge shall order that the person be detained
in a secure facility until a hearing can be completed pursuant to
Section 6602. The probable cause hearing provided for in Section 6602
shall commence within 10 calendar days of the date of the order
issued by the judge pursuant to this section.
6602. (a) A judge of the superior court shall review the petition
and shall determine whether there is probable cause to believe that
the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release. The
person named in the petition shall be entitled to assistance of
counsel at the probable cause hearing. Upon the commencement of the
probable cause hearing, the person shall remain in custody pending
the completion of the probable cause hearing. If the judge determines
there is not probable cause, he or she shall dismiss the petition
and any person subject to parole shall report to parole. If the judge
determines that there is probable cause, the judge shall order that
the person remain in custody in a secure facility until a trial is
completed and shall order that a trial be conducted to determine
whether the person is, by reason of a diagnosed mental disorder, a
danger to the health and safety of others in that the person is
likely to engage in acts of sexual violence upon his or her release
from the jurisdiction of the Department of Corrections or other
secure facility.
(b) The probable cause hearing shall not be continued except upon
a showing of good cause by the party requesting the continuance.
(c) The court shall notify the State Department of Mental Health
of the outcome of the probable cause hearing by forwarding to the
department a copy of the minute order of the court within 15 days of
the decision.
6602.5. (a) No person may be placed in a state hospital pursuant to
the provisions of this article until there has been a determination
pursuant to Section 6601.3 or 6602 that there is probable cause to
believe that the individual named in the petition is likely to engage
in sexually violent predatory criminal behavior.
(b) The State Department of Mental Health shall identify each
person for whom a petition pursuant to this article has been filed
who is in a state hospital on or after January 1, 1998, and who has
not had a probable cause hearing pursuant to Section 6602. The State
Department of Mental Health shall notify the court in which the
petition was filed that the person has not had a probable cause
hearing. Copies of the notice shall be provided by the court to the
attorneys of record in the case. Within 30 days of notice by the
State Department of Mental Health, the court shall either order the
person removed from the state hospital and returned to local custody
or hold a probable cause hearing pursuant to Section 6602.
(c) In no event shall the number of persons referred pursuant to
subdivision (b) to the superior court of any county exceed 10 in any
30-day period, except upon agreement of the presiding judge of the
superior court, the district attorney, the public defender, the
sheriff, and the Director of Mental Health.
(d) This section shall be implemented in Los Angeles County
pursuant to a letter of agreement between the Department of Mental
Health, the Los Angeles County district attorney, the Los Angeles
County public defender, the Los Angeles County sheriff, and the Los
Angeles County superior court. The number of persons referred to the
superior court of Los Angeles County pursuant to subdivision (b)
shall be governed by the letter of agreement.
6603. (a) A person subject to this article shall be entitled to a
trial by jury, to the assistance of counsel, to the right to retain
experts or professional persons to perform an examination on his or
her behalf, and to have access to all relevant medical and
psychological records and reports. In the case of a person who is
indigent, the court shall appoint counsel to assist him or her, and,
upon the person's request, assist the person in obtaining an expert
or professional person to perform an examination or participate in
the trial on the person's behalf. Any right that may exist under this
section to request DNA testing on prior cases shall be made in
conformity with Section 1405 of the Penal Code.
(b) The attorney petitioning for commitment under this article
shall have the right to demand that the trial be before a jury.
(c) (1) If the attorney petitioning for commitment under this
article determines that updated evaluations are necessary in order to
properly present the case for commitment, the attorney may request
the State Department of Mental Health to perform updated evaluations.
If one or more of the original evaluators is no longer available to
testify for the petitioner in court proceedings, the attorney
petitioning for commitment under this article may request the State
Department of Mental Health to perform replacement evaluations. When
a request is made for updated or replacement evaluations, the State
Department of Mental Health shall perform the requested evaluations
and forward them to the petitioning attorney and to the counsel for
the person subject to this article. However, updated or replacement
evaluations shall not be performed except as necessary to update one
or more of the original evaluations or to replace the evaluation of
an evaluator who is no longer available to testify for the petitioner
in court proceedings. These updated or replacement evaluations shall
include review of available medical and psychological records,
including treatment records, consultation with current treating
clinicians, and interviews of the person being evaluated, either
voluntarily or by court order. If an updated or replacement
evaluation results in a split opinion as to whether the person
subject to this article meets the criteria for commitment, the State
Department of Mental Health shall conduct two additional evaluations
in accordance with subdivision (f) of Section 6601.
(2) For purposes of this subdivision, "no longer available to
testify for the petitioner in court proceedings" means that the
evaluator is no longer authorized by the Director of Mental Health to
perform evaluations regarding sexually violent predators as a result
of any of the following:
(A) The evaluator has failed to adhere to the protocol of the
State Department of Mental Health.
(B) The evaluator's license has been suspended or revoked.
(C) The evaluator is unavailable pursuant to Section 240 of the
Evidence Code.
(d) Nothing in this section shall prevent the defense from
presenting otherwise relevant and admissible evidence.
(e) If the person subject to this article or the petitioning
attorney does not demand a jury trial, the trial shall be before the
court without a jury.
(f) A unanimous verdict shall be required in any jury trial.
(g) The court shall notify the State Department of Mental Health
of the outcome of the trial by forwarding to the department a copy of
the minute order of the court within 72 hours of the decision.
(h) Nothing in this section shall limit any legal or equitable
right that a person may have to request DNA testing.
6603.3. (a) (1) Except as provided in paragraph (2), no attorney
may disclose or permit to be disclosed to a person subject to this
article, family members of the person subject to this article, or any
other person, the name, address, telephone number, or other
identifying information of a victim or witness whose name is
disclosed to the attorney pursuant to Section 6603 and Chapter 1
(commencing with Section 2016.010) of Part 4 of Title 4 of the Code
of Civil Procedure, unless specifically permitted to do so by the
court after a hearing and showing of good cause.
(2) Notwithstanding paragraph (1), an attorney may disclose or
permit to be disclosed, the name, address, telephone number, or other
identifying information of a victim or witness to persons employed
by the attorney or to a person hired or appointed for the purpose of
assisting the person subject to this article in the preparation of
the case, if that disclosure is required for that preparation.
Persons provided this information shall be informed by the attorney
that further dissemination of the information, except as provided by
this section, is prohibited.
(3) A willful violation of this subdivision by an attorney,
persons employed by an attorney, or persons appointed by the court is
a misdemeanor.
(b) If the person subject to this article is acting as his or her
own attorney, the court shall endeavor to protect the name, address,
telephone number, or other identifying information of a victim or
witness by providing for contact only through a private investigator
licensed by the Department of Consumer Affairs and appointed by the
court or by imposing other reasonable restrictions, absent a showing
of good cause as determined by the court.
6603.5. No employee or agent of the Department of Corrections and
Rehabilitation, the Board of Parole Hearings, or the State Department
of Mental Health shall disclose to any person, except to employees
or agents of each named department, the prosecutor, the respondent's
counsel, licensed private investigators hired or appointed for the
respondent, or other persons or agencies where authorized or required
by law, the name, address, telephone number, or other identifying
information of a person who was involved in a civil commitment
hearing under this article as the victim of a sex offense except
where authorized or required by law.
6603.7. (a) Except as provided in Section 6603.3, the court, at the
request of the victim of a sex offense relevant in a proceeding
under this article, may order the identity of the victim in all
records and during all proceedings to be either Jane Doe or John Doe,
if the court finds that the order is reasonably necessary to protect
the privacy of the person and will not unduly prejudice the party
petitioning for commitment under this article or the person subject
to this article.
(b) If the court orders the victim to be identified as Jane Doe or
John Doe pursuant to subdivision (a), and if there is a jury trial,
the court shall instruct the jury at the beginning and at the end of
the trial that the victim is being so identified only for the
purposes of protecting his or her privacy.
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed for an indeterminate term to the
custody of the State Department of Mental Health for appropriate
treatment and confinement in a secure facility designated by the
Director of Mental Health. The facility shall be located on the
grounds of an institution under the jurisdiction of the Department of
Corrections.
6604.1. (a) The indeterminate term of commitment provided for in
Section 6604 shall commence on the date upon which the court issues
the initial order of commitment pursuant to that section.
(b) The person shall be evaluated by two practicing psychologists
or psychiatrists, or by one practicing psychologist and one
practicing psychiatrist, designated by the State Department of Mental
Health. The provisions of subdivisions (c) to (i), inclusive, of
Section 6601 shall apply to evaluations performed for purposes of
extended commitments. The rights, requirements, and procedures set
forth in Section 6603 shall apply to all commitment proceedings.
6605. (a) A person found to be a sexually violent predator and
committed to the custody of the State Department of Mental Health
shall have a current examination of his or her mental condition made
at least once every year. The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional
release to a less restrictive alternative or an unconditional release
is in the best interest of the person and conditions can be imposed
that would adequately protect the community. The State Department of
Mental Health shall file this periodic report with the court that
committed the person under this article. The report shall be in the
form of a declaration and shall be prepared by a professionally
qualified person. A copy of the report shall be served on the
prosecuting agency involved in the initial commitment and upon the
committed person. The person may retain, or if he or she is indigent
and so requests, the court may appoint, a qualified expert or
professional person to examine him or her, and the expert or
professional person shall have access to all records concerning the
person.
(b) If the State Department of Mental Health determines that
either: (1) the person's condition has so changed that the person no
longer meets the definition of a sexually violent predator, or (2)
conditional release to a less restrictive alternative is in the best
interest of the person and conditions can be imposed that adequately
protect the community, the director shall authorize the person to
petition the court for conditional release to a less restrictive
alternative or for an unconditional discharge. The petition shall be
filed with the court and served upon the prosecuting agency
responsible for the initial commitment. The court, upon receipt of
the petition for conditional release to a less restrictive
alternative or unconditional discharge, shall order a show cause
hearing at which the court can consider the petition and any
accompanying documentation provided by the medical director, the
prosecuting attorney, or the committed person.
(c) If the court at the show cause hearing determines that
probable cause exists to believe that the committed person's
diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to engage
in sexually violent criminal behavior if discharged, then the court
shall set a hearing on the issue.
(d) At the hearing, the committed person shall have the right to
be present and shall be entitled to the benefit of all constitutional
protections that were afforded to him or her at the initial
commitment proceeding. The attorney designated by the county pursuant
to subdivision (i) of Section 6601 shall represent the state and
shall have the right to demand a jury trial and to have the committed
person evaluated by experts chosen by the state. The committed
person also shall have the right to demand a jury trial and to have
experts evaluate him or her on his or her behalf. The court shall
appoint an expert if the person is indigent and requests an
appointment. The burden of proof at the hearing shall be on the state
to prove 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 criminal behavior if discharged. Where the person's failure
to participate in or complete treatment is relied upon as proof that
the person's condition has not changed, and there is evidence to
support that reliance, the jury shall be instructed substantially as
follows:
"The committed person's failure to participate in or complete the
State Department of Mental Health Sex Offender Commitment Program
(SOCP) are facts that, if proved, may be considered as evidence that
the committed person's condition has not changed. The weight to be
given that evidence is a matter for the jury to determine."
(e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for an indeterminate period from
the date of this ruling. If the court or jury rules for the committed
person, he or she shall be unconditionally released and
unconditionally discharged.
(f) In the event that the State Department of Mental Health has
reason to believe that a person committed to it as a sexually violent
predator is no longer a sexually violent predator, it shall seek
judicial review of the person's commitment pursuant to the procedures
set forth in Section 7250 in the superior court from which the
commitment was made. If the superior court determines that the person
is no longer a sexually violent predator, he or she shall be
unconditionally released and unconditionally discharged.
6606. (a) A person who is committed under this article shall be
provided with programming by the State Department of Mental Health
which shall afford the person with treatment for his or her diagnosed
mental disorder. Persons who decline treatment shall be offered the
opportunity to participate in treatment on at least a monthly basis.
(b) Amenability to treatment is not required for a finding that
any person is a person described in Section 6600, nor is it required
for treatment of that person. Treatment does not mean that the
treatment be successful or potentially successful, nor does it mean
that the person must recognize his or her problem and willingly
participate in the treatment program.
(c) The programming provided by the State Department of Mental
Health in facilities shall be consistent with current institutional
standards for the treatment of sex offenders, and shall be based on a
structured treatment protocol developed by the State Department of
Mental Health. The protocol shall describe the number and types of
treatment components that are provided in the program, and shall
specify how assessment data will be used to determine the course of
treatment for each individual offender. The protocol shall also
specify measures that will be used to assess treatment progress and
changes with respect to the individual's risk of reoffense.
(d) Notwithstanding any other provision of law, except as to
requirements relating to fire and life safety of persons with mental
illness, and consistent with information and standards described in
subdivision (c), the department is authorized to provide the
programming using an outpatient/day treatment model, wherein
treatment is provided by licensed professional clinicians in living
units not licensed as health facility beds within a secure facility
setting, on less than a 24-hour a day basis. The department shall
take into consideration the unique characteristics, individual needs,
and choices of persons committed under this article, including
whether or not a person needs antipsychotic medication, whether or
not a person has physical medical conditions, and whether or not a
person chooses to participate in a specified course of offender
treatment. The department shall ensure that policies and procedures
are in place that address changes in patient needs, as well as
patient choices, and respond to treatment needs in a timely fashion.
The department, in implementing this subdivision, shall be allowed by
the State Department of Health Services to place health facility
beds at Coalinga State Hospital in suspense for a period of up to six
years. Coalinga State Hospital may remove all or any portion of its
voluntarily suspended beds into active license status by request to
the State Department of Health Services. The facility's request shall
be granted unless the suspended beds fail to comply with current
operational requirements for licensure.
(e) The department shall meet with each patient who has chosen not
to participate in a specific course of offender treatment during
monthly treatment planning conferences. At these conferences the
department shall explain treatment options available to the patient,
offer and re-offer treatment to the patient, seek to obtain the
patient's cooperation in the recommended treatment options, and
document these steps in the patient's health record. The fact that a
patient has chosen not to participate in treatment in the past shall
not establish that the patient continues to choose not to
participate.
6607. (a) If the Director of Mental Health determines that the
person's diagnosed mental disorder has so changed that the person is
not likely to commit acts of predatory sexual violence while under
supervision and treatment in the community, the director shall
forward a report and recommendation for conditional release in
accordance with Section 6608 to the county attorney designated in
subdivision (i) of Section 6601, the attorney of record for the
person, and the committing court.
(b) When a report and recommendation for conditional release is
filed by the Director of Mental Health pursuant to subdivision (a),
the court shall set a hearing in accordance with the procedures set
forth in Section 6608.
6608. (a) Nothing in this article shall prohibit the person who has
been committed as a sexually violent predator from petitioning the
court for conditional release or an unconditional discharge without
the recommendation or concurrence of the Director of Mental Health.
If a person has previously filed a petition for conditional release
without the concurrence of the director and the court determined,
either upon review of the petition or following a hearing, that the
petition was frivolous or that the committed person's condition had
not so changed that he or she would not be a danger to others in that
it is not likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment in the
community, then the court shall deny the subsequent petition unless
it contains facts upon which a court could find that the condition of
the committed person had so changed that a hearing was warranted.
Upon receipt of a first or subsequent petition from a committed
person without the concurrence of the director, 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. The person petitioning for conditional release and
unconditional discharge under this subdivision shall be entitled to
assistance of counsel. The person petitioning for conditional release
or unconditional discharge shall serve a copy of the petition on the
State Department of Mental Health at the time the petition is filed
with the court.
(b) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 30 court days before the hearing date.
(c) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(d) 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. 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, the court shall order the
committed person placed with an appropriate forensic conditional
release program operated by the state for one year. A substantial
portion of the state-operated forensic conditional release program
shall include outpatient supervision and treatment. The court shall
retain jurisdiction of the person throughout the course of the
program. At the end of one year, the court shall hold a hearing to
determine if the person should be unconditionally released from
commitment on the basis that, by reason of a diagnosed mental
disorder, he or she is not a danger to the health and safety of
others in that it is not likely that he or she will engage in
sexually violent criminal behavior. The court shall not make this
determination until the person has completed at least one year in the
state-operated forensic conditional release program. The court shall
notify the Director of Mental Health of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(f) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 30 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(g) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code.
(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program or if the petition
for unconditional discharge is denied, the person may not file a new
application until one year has elapsed from the date of the denial.
(i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(j) If the petition for conditional release is not made by the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.
(k) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a locked
facility shall count toward the term of commitment.
6608.5. (a) A person who is conditionally released pursuant to this
article shall be placed in the county of the domicile of the person
prior to the person's incarceration, unless the court finds that
extraordinary circumstances require placement outside the county of
domicile.
(b) (1) For the purposes of this section, "county of domicile"
means the county where the person has his or her true, fixed, and
permanent home and principal residence and to which he or she has
manifested the intention of returning whenever he or she is absent.
For the purposes of determining the county of domicile, the court may
consider information found on a California driver's license,
California identification card, recent rent or utility receipt,
printed personalized checks or other recent banking documents showing
that person's name and address, or information contained in an
arrest record, probation officer's report, trial transcript, or other
court document. If no information can be identified or verified, the
county of domicile of the individual shall be considered to be 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.
(2) In a case where the person committed a crime while being held
for treatment in a state hospital, or while being confined in a state
prison or local jail facility, the county wherein that facility was
located shall not be considered the county of domicile unless the
person resided in that county prior to being housed in the hospital,
prison, or jail.
(c) For the purposes of this section, "extraordinary circumstances"
means circumstances that would inordinately limit the department's
ability to effect conditional release of the person in the county of
domicile in accordance with Section 6608 or any other provision of
this article, and the procedures described in Sections 1605 to 1610,
inclusive, of the Penal Code.
(d) 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 sexually violent predators who are about to be
conditionally released under Section 6608. Upon notification by the
department of a person's potential or expected conditional release
under Section 6608, the county of domicile shall notify the
department of the name of the designated agency or program, at least
60 days before the date of the potential or expected release.
(e) In recommending a specific placement for community outpatient
treatment, the department or its designee shall consider all of the
following:
(1) The concerns and proximity of the victim or the victim's next
of kin.
(2) The age and profile of the victim or victims in the sexually
violent offenses committed by the person subject to placement. For
purposes of this subdivision, the "profile" of a victim includes, but
is not limited to, gender, physical appearance, economic background,
profession, and other social or personal characteristics.
(f) Notwithstanding any other provision of 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 of grades 1 to 12, inclusive, if either of the following
conditions exist:
(1) The person has previously been convicted of a violation of
Section 288.5 of, or subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 of, the Penal Code.
(2) The court finds that the person has a history of improper
sexual conduct with children.
6608.7. The State Department of Mental Health may enter into an
interagency agreement or contract with the Department of Corrections
or with local law enforcement agencies for services related to
supervision or monitoring of sexually violent predators who have been
conditionally released into the community under the forensic
conditional release program pursuant to this article.
6608.8. (a) For any person who is proposed for community outpatient
treatment under the forensic conditional release program, the
department shall provide to the court a copy of the written contract
entered into with any public or private person or entity responsible
for monitoring and supervising the patient's outpatient placement and
treatment program. This subdivision does not apply to subcontracts
between the contractor and clinicians providing treatment and related
services to the person.
(b) The terms and conditions of conditional release shall be
drafted to include reasonable flexibility to achieve the aims of
conditional release, and to protect the public and the conditionally
released person.
(c) The court in its discretion may order the department to,
notwithstanding Section 4514 or 5328, provide a copy of the written
terms and conditions of conditional release to the sheriff or chief
of police, or both, that have jurisdiction over the proposed or
actual placement community.
(d) (1) Except in an emergency, the department or its designee
shall not alter the terms and conditions of conditional release
without the prior approval of the court.
(2) The department shall provide notice to the person committed
under this article and the district attorney or designated county
counsel of any proposed change in the terms and conditions of
conditional release.
(3) The court on its own motion, or upon the motion of either
party to the action, may set a hearing on the proposed change. The
hearing shall be held as soon as is practicable.
(4) If a hearing on the proposed change is held, the court shall
state its findings on the record. If the court approves a change in
the terms and conditions of conditional release without a hearing,
the court shall issue a written order.
(5) In the case of an emergency, the department or its designee
may deviate from the terms and conditions of the conditional release
if necessary to protect public safety or the safety of the person. If
a hearing on the emergency is set by the court or requested by
either party, the hearing shall be held as soon as practicable. The
department, its designee, and the parties shall endeavor to resolve
routine matters in a cooperative fashion without the need for a
formal hearing.
(e) Notwithstanding any provision of this section, including, but
not limited to, subdivision (d), matters concerning the residential
placement, including any changes or proposed changes in the residence
of the person, shall be considered and determined pursuant to
Section 6609.1.
6609. Within 10 days of a request made by the chief of police of a
city or the sheriff of a county, the State Department of Mental
Health shall provide the following information concerning each person
committed as a sexually violent predator who is receiving outpatient
care in a conditional release program in that city or county: name,
address, date of commitment, county from which committed, date of
placement in the conditional release program, fingerprints, and a
glossy photograph no smaller than 3 1/8
6600. As used in this article, the following terms have the
following meanings:
(a) (1) "Sexually violent predator" means a person who has been
convicted of a sexually violent offense against one or more victims
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.
(2) For purposes of this subdivision any of the following shall be
considered a conviction for a sexually violent offense:
(A) A prior or current conviction that resulted in a determinate
prison sentence for an offense described in subdivision (b).
(B) A conviction for an offense described in subdivision (b) that
was committed prior to July 1, 1977, and that resulted in an
indeterminate prison sentence.
(C) A prior conviction in another jurisdiction for an offense that
includes all of the elements of an offense described in subdivision
(b).
(D) A conviction for an offense under a predecessor statute that
includes all of the elements of an offense described in subdivision
(b).
(E) A prior conviction for which the inmate received a grant of
probation for an offense described in subdivision (b).
(F) A prior finding of not guilty by reason of insanity for an
offense described in subdivision (b).
(G) A conviction resulting in a finding that the person was a
mentally disordered sex offender.
(H) A prior conviction for an offense described in subdivision (b)
for which the person was committed to the Department of the Youth
Authority pursuant to Section 1731.5.
(I) A prior conviction for an offense described in subdivision (b)
that resulted in an indeterminate prison sentence.
(3) Conviction of one or more of the crimes enumerated in this
section shall constitute evidence that may support a court or jury
determination that a person is a sexually violent predator, but shall
not be the sole basis for the determination. The existence of any
prior convictions may be shown with documentary evidence. The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim, may
be shown by documentary evidence, including, but not limited to,
preliminary hearing transcripts, trial transcripts, probation and
sentencing reports, and evaluations by the State Department of Mental
Health. Jurors shall be admonished that they may not find a person a
sexually violent predator based on prior offenses absent relevant
evidence of a currently 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.
(4) The provisions of this section shall apply to any person
against whom proceedings were initiated for commitment as a sexually
violent predator on or after January 1, 1996.
(b) "Sexually violent offense" means the following acts when
committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or
threatening to retaliate in the future against the victim or any
other person, and that are committed on, before, or after the
effective date of this article and result in a conviction or a
finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section 261, 262, 264.1, 269,
286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony
violation of Section 207, 209, or 220 of the Penal Code, committed
with the intent to commit a violation of Section 261, 262, 264.1,
286, 288, 288a, or 289 of the Penal Code.
(c) "Diagnosed mental disorder" includes a congenital or acquired
condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a
degree constituting the person a menace to the health and safety of
others.
(d) "Danger to the health and safety of others" does not require
proof of a recent overt act while the offender is in custody.
(e) "Predatory" means an act is directed toward a stranger, a
person of casual acquaintance with whom no substantial relationship
exists, or an individual with whom a relationship has been
established or promoted for the primary purpose of victimization.
(f) "Recent overt act" means any criminal act that manifests a
likelihood that the actor may engage in sexually violent predatory
criminal behavior.
(g) Notwithstanding any other provision of law and for purposes of
this section, a prior juvenile adjudication of a sexually violent
offense may constitute a prior conviction for which the person
received a determinate term if all of the following apply:
(1) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(2) The prior offense is a sexually violent offense as specified
in subdivision (b).
(3) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 because of the person's commission of the
offense giving rise to the juvenile court adjudication.
(4) The juvenile was committed to the Department of the Youth
Authority for the sexually violent offense.
(h) A minor adjudged a ward of the court for commission of an
offense that is defined as a sexually violent offense shall be
entitled to specific treatment as a sexual offender. The failure of a
minor to receive that treatment shall not constitute a defense or
bar to a determination that any person is a sexually violent predator
within the meaning of this article.
6600.05. (a) Until a permanent housing and treatment facility is
available, Atascadero State Hospital shall be used whenever a person
is committed to a secure facility for mental health treatment
pursuant to this article and is placed in a state hospital under the
direction of the State Department of Mental Health unless there are
unique circumstances that would preclude the placement of a person at
that facility. If a state hospital is not used, the facility to be
used shall be located on a site or sites determined by the Director
of Corrections and the Director of Mental Health. In no case shall a
person committed to a secure facility for mental health treatment
pursuant to this article be placed at Metropolitan State Hospital or
Napa State Hospital.
(b) A permanent facility for the housing and treatment of persons
committed pursuant to this article shall be located on a site or
sites determined by the Director of Corrections and the Director of
Mental Health, with approval by the Legislature through a trailer
bill or other legislation. The State Department of Mental Health
shall be responsible for operation of the facility, including the
provision of treatment.
6600.1. If the victim of an underlying offense that is specified in
subdivision (b) of Section 6600 is a child under the age of 14, the
offense shall constitute a "sexually violent offense" for purposes of
Section 6600.
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health, one or both of whom may be independent
professionals as defined in subdivision (g). If both evaluators
concur that the person has a diagnosed mental disorder so that he or
she is likely to engage in acts of sexual violence without
appropriate treatment and custody, the Director of Mental Health
shall forward a request for a petition for commitment under Section
6602 to the county designated in subdivision (i). Copies of the
evaluation reports and any other supporting documents shall be made
available to the attorney designated by the county pursuant to
subdivision (i) who may file a petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) (1) The department shall provide the fiscal and policy
committees of the Legislature, including the Chairperson of the Joint
Legislative Budget Committee, and the Department of Finance, with a
semiannual update on the progress made to hire qualified state
employees to conduct the evaluation required pursuant to subdivision
(d). The first update shall be provided no later than July 10, 2009.
(2) On or before January 2, 2010, the department shall report to
the Legislature on all of the following:
(A) The costs to the department for the sexual offender commitment
program attributable to the provisions in Proposition 83 of the
November 2006 general election, otherwise known as Jessica's Law.
(B) The number and proportion of inmates evaluated by the
department for commitment to the program as a result of the expanded
evaluation and commitment criteria in Jessica's Law.
(C) The number and proportion of those inmates who have actually
been committed for treatment in the program.
(3) This section shall remain in effect and be repealed on the
date that the director executes a declaration, which shall be
provided to the fiscal and policy committees of the Legislature,
including the Chairperson of the Joint Legislative Budget Committee,
and the Department of Finance, specifying that sufficient qualified
state employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
6601. (a) (1) Whenever the Secretary of the Department of
Corrections and Rehabilitation determines that an individual who is
in custody under the jurisdiction of the Department of Corrections
and Rehabilitation, and who is either serving a determinate prison
sentence or whose parole has been revoked, may be a sexually violent
predator, the secretary shall, at least six months prior to that
individual's scheduled date for release from prison, refer the person
for evaluation in accordance with this section. However, if the
inmate was received by the department with less than nine months of
his or her sentence to serve, or if the inmate's release date is
modified by judicial or administrative action, the secretary may
refer the person for evaluation in accordance with this section at a
date that is less than six months prior to the inmate's scheduled
release date.
(2) A petition may be filed under this section if the individual
was in custody pursuant to his or her determinate prison term, parole
revocation term, or a hold placed pursuant to Section 6601.3, at the
time the petition is filed. A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the
individual's custody was unlawful, if the unlawful custody was the
result of a good faith mistake of fact or law. This paragraph shall
apply to any petition filed on or after January 1, 1996.
(b) The person shall be screened by the Department of Corrections
and Rehabilitation and the Board of Parole Hearings based on whether
the person has committed a sexually violent predatory offense and on
a review of the person's social, criminal, and institutional history.
This screening shall be conducted in accordance with a structured
screening instrument developed and updated by the State Department of
Mental Health in consultation with the Department of Corrections and
Rehabilitation. If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the
Department of Corrections and Rehabilitation shall refer the person
to the State Department of Mental Health for a full evaluation of
whether the person meets the criteria in Section 6600.
(c) The State Department of Mental Health shall evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to
determine whether the person is a sexually violent predator as
defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as
various factors known to be associated with the risk of reoffense
among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder.
(d) Pursuant to subdivision (c), the person shall be evaluated by
two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the
Director of Mental Health. If both evaluators concur that the person
has a diagnosed mental disorder so that he or she is likely to engage
in acts of sexual violence without appropriate treatment and
custody, the Director of Mental Health shall forward a request for a
petition for commitment under Section 6602 to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment.
(e) If one of the professionals performing the evaluation pursuant
to subdivision (d) does not concur that the person meets the
criteria specified in subdivision (d), but the other professional
concludes that the person meets those criteria, the Director of
Mental Health shall arrange for further examination of the person by
two independent professionals selected in accordance with subdivision
(g).
(f) If an examination by independent professionals pursuant to
subdivision (e) is conducted, a petition to request commitment under
this article shall only be filed if both independent professionals
who evaluate the person pursuant to subdivision (e) concur that the
person meets the criteria for commitment specified in subdivision
(d). The professionals selected to evaluate the person pursuant to
subdivision (g) shall inform the person that the purpose of their
examination is not treatment but to determine if the person meets
certain criteria to be involuntarily committed pursuant to this
article. It is not required that the person appreciate or understand
that information.
(g) Any independent professional who is designated by the
Secretary of the Department of Corrections and Rehabilitation or the
Director of Mental Health for purposes of this section shall not be a
state government employee, shall have at least five years of
experience in the diagnosis and treatment of mental disorders, and
shall include psychiatrists and licensed psychologists who have a
doctoral degree in psychology. The requirements set forth in this
section also shall apply to any professionals appointed by the court
to evaluate the person for purposes of any other proceedings under
this article.
(h) If the State Department of Mental Health determines that the
person is a sexually violent predator as defined in this article, the
Director of Mental Health shall forward a request for a petition to
be filed for commitment under this article to the county designated
in subdivision (i). Copies of the evaluation reports and any other
supporting documents shall be made available to the attorney
designated by the county pursuant to subdivision (i) who may file a
petition for commitment in the superior court.
(i) If the county's designated counsel concurs with the
recommendation, a petition for commitment shall be filed in the
superior court of the county in which the person was convicted of the
offense for which he or she was committed to the jurisdiction of the
Department of Corrections and Rehabilitation. The petition shall be
filed, and the proceedings shall be handled, by either the district
attorney or the county counsel of that county. The county board of
supervisors shall designate either the district attorney or the
county counsel to assume responsibility for proceedings under this
article.
(j) The time limits set forth in this section shall not apply
during the first year that this article is operative.
(k) If the person is otherwise subject to parole, a finding or
placement made pursuant to this article shall toll the term of parole
pursuant to Article 1 (commencing with Section 3000) of Chapter 8 of
Title 1 of Part 3 of the Penal Code.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health of its decision regarding the filing of a petition
for commitment within 15 days of making that decision.
(m) This section shall become operative on the date that the
director executes a declaration, which shall be provided to the
fiscal and policy committees of the Legislature, including the
Chairperson of the Joint Legislative Budget Committee, and the
Department of Finance, specifying that sufficient qualified state
employees have been hired to conduct the evaluations required
pursuant to subdivision (d), or January 1, 2012, whichever occurs
first.
6601.3. (a) Upon a showing of good cause, the Board of Prison Terms
may order that a person referred to the State Department of Mental
Health pursuant to subdivision (b) of Section 6601 remain in custody
for no more than 45 days beyond the person's scheduled release date
for full evaluation pursuant to subdivisions (c) to (i), inclusive,
of Section 6601.
(b) For purposes of this section, good cause means circumstances
where there is a recalculation of credits or a restoration of denied
or lost credits, a resentencing by a court, the receipt of the
prisoner into custody, or equivalent exigent circumstances which
result in there being less than 45 days prior to the person's
scheduled release date for the full evaluation described in
subdivisions (c) to (i), inclusive, of Section 6601.
6601.5. Upon filing of the petition and a request for review under
this section, a judge of the superior court shall review the petition
and determine whether the petition states or contains sufficient
facts that, if true, would constitute probable cause to believe that
the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release. If the
judge determines that the petition, on its face, supports a finding
of probable cause, the judge shall order that the person be detained
in a secure facility until a hearing can be completed pursuant to
Section 6602. The probable cause hearing provided for in Section 6602
shall commence within 10 calendar days of the date of the order
issued by the judge pursuant to this section.
6602. (a) A judge of the superior court shall review the petition
and shall determine whether there is probable cause to believe that
the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release. The
person named in the petition shall be entitled to assistance of
counsel at the probable cause hearing. Upon the commencement of the
probable cause hearing, the person shall remain in custody pending
the completion of the probable cause hearing. If the judge determines
there is not probable cause, he or she shall dismiss the petition
and any person subject to parole shall report to parole. If the judge
determines that there is probable cause, the judge shall order that
the person remain in custody in a secure facility until a trial is
completed and shall order that a trial be conducted to determine
whether the person is, by reason of a diagnosed mental disorder, a
danger to the health and safety of others in that the person is
likely to engage in acts of sexual violence upon his or her release
from the jurisdiction of the Department of Corrections or other
secure facility.
(b) The probable cause hearing shall not be continued except upon
a showing of good cause by the party requesting the continuance.
(c) The court shall notify the State Department of Mental Health
of the outcome of the probable cause hearing by forwarding to the
department a copy of the minute order of the court within 15 days of
the decision.
6602.5. (a) No person may be placed in a state hospital pursuant to
the provisions of this article until there has been a determination
pursuant to Section 6601.3 or 6602 that there is probable cause to
believe that the individual named in the petition is likely to engage
in sexually violent predatory criminal behavior.
(b) The State Department of Mental Health shall identify each
person for whom a petition pursuant to this article has been filed
who is in a state hospital on or after January 1, 1998, and who has
not had a probable cause hearing pursuant to Section 6602. The State
Department of Mental Health shall notify the court in which the
petition was filed that the person has not had a probable cause
hearing. Copies of the notice shall be provided by the court to the
attorneys of record in the case. Within 30 days of notice by the
State Department of Mental Health, the court shall either order the
person removed from the state hospital and returned to local custody
or hold a probable cause hearing pursuant to Section 6602.
(c) In no event shall the number of persons referred pursuant to
subdivision (b) to the superior court of any county exceed 10 in any
30-day period, except upon agreement of the presiding judge of the
superior court, the district attorney, the public defender, the
sheriff, and the Director of Mental Health.
(d) This section shall be implemented in Los Angeles County
pursuant to a letter of agreement between the Department of Mental
Health, the Los Angeles County district attorney, the Los Angeles
County public defender, the Los Angeles County sheriff, and the Los
Angeles County superior court. The number of persons referred to the
superior court of Los Angeles County pursuant to subdivision (b)
shall be governed by the letter of agreement.
6603. (a) A person subject to this article shall be entitled to a
trial by jury, to the assistance of counsel, to the right to retain
experts or professional persons to perform an examination on his or
her behalf, and to have access to all relevant medical and
psychological records and reports. In the case of a person who is
indigent, the court shall appoint counsel to assist him or her, and,
upon the person's request, assist the person in obtaining an expert
or professional person to perform an examination or participate in
the trial on the person's behalf. Any right that may exist under this
section to request DNA testing on prior cases shall be made in
conformity with Section 1405 of the Penal Code.
(b) The attorney petitioning for commitment under this article
shall have the right to demand that the trial be before a jury.
(c) (1) If the attorney petitioning for commitment under this
article determines that updated evaluations are necessary in order to
properly present the case for commitment, the attorney may request
the State Department of Mental Health to perform updated evaluations.
If one or more of the original evaluators is no longer available to
testify for the petitioner in court proceedings, the attorney
petitioning for commitment under this article may request the State
Department of Mental Health to perform replacement evaluations. When
a request is made for updated or replacement evaluations, the State
Department of Mental Health shall perform the requested evaluations
and forward them to the petitioning attorney and to the counsel for
the person subject to this article. However, updated or replacement
evaluations shall not be performed except as necessary to update one
or more of the original evaluations or to replace the evaluation of
an evaluator who is no longer available to testify for the petitioner
in court proceedings. These updated or replacement evaluations shall
include review of available medical and psychological records,
including treatment records, consultation with current treating
clinicians, and interviews of the person being evaluated, either
voluntarily or by court order. If an updated or replacement
evaluation results in a split opinion as to whether the person
subject to this article meets the criteria for commitment, the State
Department of Mental Health shall conduct two additional evaluations
in accordance with subdivision (f) of Section 6601.
(2) For purposes of this subdivision, "no longer available to
testify for the petitioner in court proceedings" means that the
evaluator is no longer authorized by the Director of Mental Health to
perform evaluations regarding sexually violent predators as a result
of any of the following:
(A) The evaluator has failed to adhere to the protocol of the
State Department of Mental Health.
(B) The evaluator's license has been suspended or revoked.
(C) The evaluator is unavailable pursuant to Section 240 of the
Evidence Code.
(d) Nothing in this section shall prevent the defense from
presenting otherwise relevant and admissible evidence.
(e) If the person subject to this article or the petitioning
attorney does not demand a jury trial, the trial shall be before the
court without a jury.
(f) A unanimous verdict shall be required in any jury trial.
(g) The court shall notify the State Department of Mental Health
of the outcome of the trial by forwarding to the department a copy of
the minute order of the court within 72 hours of the decision.
(h) Nothing in this section shall limit any legal or equitable
right that a person may have to request DNA testing.
6603.3. (a) (1) Except as provided in paragraph (2), no attorney
may disclose or permit to be disclosed to a person subject to this
article, family members of the person subject to this article, or any
other person, the name, address, telephone number, or other
identifying information of a victim or witness whose name is
disclosed to the attorney pursuant to Section 6603 and Chapter 1
(commencing with Section 2016.010) of Part 4 of Title 4 of the Code
of Civil Procedure, unless specifically permitted to do so by the
court after a hearing and showing of good cause.
(2) Notwithstanding paragraph (1), an attorney may disclose or
permit to be disclosed, the name, address, telephone number, or other
identifying information of a victim or witness to persons employed
by the attorney or to a person hired or appointed for the purpose of
assisting the person subject to this article in the preparation of
the case, if that disclosure is required for that preparation.
Persons provided this information shall be informed by the attorney
that further dissemination of the information, except as provided by
this section, is prohibited.
(3) A willful violation of this subdivision by an attorney,
persons employed by an attorney, or persons appointed by the court is
a misdemeanor.
(b) If the person subject to this article is acting as his or her
own attorney, the court shall endeavor to protect the name, address,
telephone number, or other identifying information of a victim or
witness by providing for contact only through a private investigator
licensed by the Department of Consumer Affairs and appointed by the
court or by imposing other reasonable restrictions, absent a showing
of good cause as determined by the court.
6603.5. No employee or agent of the Department of Corrections and
Rehabilitation, the Board of Parole Hearings, or the State Department
of Mental Health shall disclose to any person, except to employees
or agents of each named department, the prosecutor, the respondent's
counsel, licensed private investigators hired or appointed for the
respondent, or other persons or agencies where authorized or required
by law, the name, address, telephone number, or other identifying
information of a person who was involved in a civil commitment
hearing under this article as the victim of a sex offense except
where authorized or required by law.
6603.7. (a) Except as provided in Section 6603.3, the court, at the
request of the victim of a sex offense relevant in a proceeding
under this article, may order the identity of the victim in all
records and during all proceedings to be either Jane Doe or John Doe,
if the court finds that the order is reasonably necessary to protect
the privacy of the person and will not unduly prejudice the party
petitioning for commitment under this article or the person subject
to this article.
(b) If the court orders the victim to be identified as Jane Doe or
John Doe pursuant to subdivision (a), and if there is a jury trial,
the court shall instruct the jury at the beginning and at the end of
the trial that the victim is being so identified only for the
purposes of protecting his or her privacy.
6604. The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. If the
court or jury is not satisfied beyond a reasonable doubt that the
person is a sexually violent predator, the court shall direct that
the person be released at the conclusion of the term for which he or
she was initially sentenced, or that the person be unconditionally
released at the end of parole, whichever is applicable. If the court
or jury determines that the person is a sexually violent predator,
the person shall be committed for an indeterminate term to the
custody of the State Department of Mental Health for appropriate
treatment and confinement in a secure facility designated by the
Director of Mental Health. The facility shall be located on the
grounds of an institution under the jurisdiction of the Department of
Corrections.
6604.1. (a) The indeterminate term of commitment provided for in
Section 6604 shall commence on the date upon which the court issues
the initial order of commitment pursuant to that section.
(b) The person shall be evaluated by two practicing psychologists
or psychiatrists, or by one practicing psychologist and one
practicing psychiatrist, designated by the State Department of Mental
Health. The provisions of subdivisions (c) to (i), inclusive, of
Section 6601 shall apply to evaluations performed for purposes of
extended commitments. The rights, requirements, and procedures set
forth in Section 6603 shall apply to all commitment proceedings.
6605. (a) A person found to be a sexually violent predator and
committed to the custody of the State Department of Mental Health
shall have a current examination of his or her mental condition made
at least once every year. The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional
release to a less restrictive alternative or an unconditional release
is in the best interest of the person and conditions can be imposed
that would adequately protect the community. The State Department of
Mental Health shall file this periodic report with the court that
committed the person under this article. The report shall be in the
form of a declaration and shall be prepared by a professionally
qualified person. A copy of the report shall be served on the
prosecuting agency involved in the initial commitment and upon the
committed person. The person may retain, or if he or she is indigent
and so requests, the court may appoint, a qualified expert or
professional person to examine him or her, and the expert or
professional person shall have access to all records concerning the
person.
(b) If the State Department of Mental Health determines that
either: (1) the person's condition has so changed that the person no
longer meets the definition of a sexually violent predator, or (2)
conditional release to a less restrictive alternative is in the best
interest of the person and conditions can be imposed that adequately
protect the community, the director shall authorize the person to
petition the court for conditional release to a less restrictive
alternative or for an unconditional discharge. The petition shall be
filed with the court and served upon the prosecuting agency
responsible for the initial commitment. The court, upon receipt of
the petition for conditional release to a less restrictive
alternative or unconditional discharge, shall order a show cause
hearing at which the court can consider the petition and any
accompanying documentation provided by the medical director, the
prosecuting attorney, or the committed person.
(c) If the court at the show cause hearing determines that
probable cause exists to believe that the committed person's
diagnosed mental disorder has so changed that he or she is not a
danger to the health and safety of others and is not likely to engage
in sexually violent criminal behavior if discharged, then the court
shall set a hearing on the issue.
(d) At the hearing, the committed person shall have the right to
be present and shall be entitled to the benefit of all constitutional
protections that were afforded to him or her at the initial
commitment proceeding. The attorney designated by the county pursuant
to subdivision (i) of Section 6601 shall represent the state and
shall have the right to demand a jury trial and to have the committed
person evaluated by experts chosen by the state. The committed
person also shall have the right to demand a jury trial and to have
experts evaluate him or her on his or her behalf. The court shall
appoint an expert if the person is indigent and requests an
appointment. The burden of proof at the hearing shall be on the state
to prove 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 criminal behavior if discharged. Where the person's failure
to participate in or complete treatment is relied upon as proof that
the person's condition has not changed, and there is evidence to
support that reliance, the jury shall be instructed substantially as
follows:
"The committed person's failure to participate in or complete the
State Department of Mental Health Sex Offender Commitment Program
(SOCP) are facts that, if proved, may be considered as evidence that
the committed person's condition has not changed. The weight to be
given that evidence is a matter for the jury to determine."
(e) If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for an indeterminate period from
the date of this ruling. If the court or jury rules for the committed
person, he or she shall be unconditionally released and
unconditionally discharged.
(f) In the event that the State Department of Mental Health has
reason to believe that a person committed to it as a sexually violent
predator is no longer a sexually violent predator, it shall seek
judicial review of the person's commitment pursuant to the procedures
set forth in Section 7250 in the superior court from which the
commitment was made. If the superior court determines that the person
is no longer a sexually violent predator, he or she shall be
unconditionally released and unconditionally discharged.
6606. (a) A person who is committed under this article shall be
provided with programming by the State Department of Mental Health
which shall afford the person with treatment for his or her diagnosed
mental disorder. Persons who decline treatment shall be offered the
opportunity to participate in treatment on at least a monthly basis.
(b) Amenability to treatment is not required for a finding that
any person is a person described in Section 6600, nor is it required
for treatment of that person. Treatment does not mean that the
treatment be successful or potentially successful, nor does it mean
that the person must recognize his or her problem and willingly
participate in the treatment program.
(c) The programming provided by the State Department of Mental
Health in facilities shall be consistent with current institutional
standards for the treatment of sex offenders, and shall be based on a
structured treatment protocol developed by the State Department of
Mental Health. The protocol shall describe the number and types of
treatment components that are provided in the program, and shall
specify how assessment data will be used to determine the course of
treatment for each individual offender. The protocol shall also
specify measures that will be used to assess treatment progress and
changes with respect to the individual's risk of reoffense.
(d) Notwithstanding any other provision of law, except as to
requirements relating to fire and life safety of persons with mental
illness, and consistent with information and standards described in
subdivision (c), the department is authorized to provide the
programming using an outpatient/day treatment model, wherein
treatment is provided by licensed professional clinicians in living
units not licensed as health facility beds within a secure facility
setting, on less than a 24-hour a day basis. The department shall
take into consideration the unique characteristics, individual needs,
and choices of persons committed under this article, including
whether or not a person needs antipsychotic medication, whether or
not a person has physical medical conditions, and whether or not a
person chooses to participate in a specified course of offender
treatment. The department shall ensure that policies and procedures
are in place that address changes in patient needs, as well as
patient choices, and respond to treatment needs in a timely fashion.
The department, in implementing this subdivision, shall be allowed by
the State Department of Health Services to place health facility
beds at Coalinga State Hospital in suspense for a period of up to six
years. Coalinga State Hospital may remove all or any portion of its
voluntarily suspended beds into active license status by request to
the State Department of Health Services. The facility's request shall
be granted unless the suspended beds fail to comply with current
operational requirements for licensure.
(e) The department shall meet with each patient who has chosen not
to participate in a specific course of offender treatment during
monthly treatment planning conferences. At these conferences the
department shall explain treatment options available to the patient,
offer and re-offer treatment to the patient, seek to obtain the
patient's cooperation in the recommended treatment options, and
document these steps in the patient's health record. The fact that a
patient has chosen not to participate in treatment in the past shall
not establish that the patient continues to choose not to
participate.
6607. (a) If the Director of Mental Health determines that the
person's diagnosed mental disorder has so changed that the person is
not likely to commit acts of predatory sexual violence while under
supervision and treatment in the community, the director shall
forward a report and recommendation for conditional release in
accordance with Section 6608 to the county attorney designated in
subdivision (i) of Section 6601, the attorney of record for the
person, and the committing court.
(b) When a report and recommendation for conditional release is
filed by the Director of Mental Health pursuant to subdivision (a),
the court shall set a hearing in accordance with the procedures set
forth in Section 6608.
6608. (a) Nothing in this article shall prohibit the person who has
been committed as a sexually violent predator from petitioning the
court for conditional release or an unconditional discharge without
the recommendation or concurrence of the Director of Mental Health.
If a person has previously filed a petition for conditional release
without the concurrence of the director and the court determined,
either upon review of the petition or following a hearing, that the
petition was frivolous or that the committed person's condition had
not so changed that he or she would not be a danger to others in that
it is not likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment in the
community, then the court shall deny the subsequent petition unless
it contains facts upon which a court could find that the condition of
the committed person had so changed that a hearing was warranted.
Upon receipt of a first or subsequent petition from a committed
person without the concurrence of the director, 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. The person petitioning for conditional release and
unconditional discharge under this subdivision shall be entitled to
assistance of counsel. The person petitioning for conditional release
or unconditional discharge shall serve a copy of the petition on the
State Department of Mental Health at the time the petition is filed
with the court.
(b) The court shall give notice of the hearing date to the
attorney designated in subdivision (i) of Section 6601, the retained
or appointed attorney for the committed person, and the Director of
Mental Health at least 30 court days before the hearing date.
(c) No hearing upon the petition shall be held until the person
who is committed has been under commitment for confinement and care
in a facility designated by the Director of Mental Health for not
less than one year from the date of the order of commitment.
(d) 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. 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, the court shall order the
committed person placed with an appropriate forensic conditional
release program operated by the state for one year. A substantial
portion of the state-operated forensic conditional release program
shall include outpatient supervision and treatment. The court shall
retain jurisdiction of the person throughout the course of the
program. At the end of one year, the court shall hold a hearing to
determine if the person should be unconditionally released from
commitment on the basis that, by reason of a diagnosed mental
disorder, he or she is not a danger to the health and safety of
others in that it is not likely that he or she will engage in
sexually violent criminal behavior. The court shall not make this
determination until the person has completed at least one year in the
state-operated forensic conditional release program. The court shall
notify the Director of Mental Health of the hearing date.
(e) Before placing a committed person in a state-operated forensic
conditional release program, the community program director
designated by the State Department of Mental Health shall submit a
written recommendation to the court stating which forensic
conditional release program is most appropriate for supervising and
treating the committed person. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the record. The procedures
described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release
program.
(f) If the court determines that the person should be transferred
to a state-operated forensic conditional release program, the
community program director, or his or her designee, shall make the
necessary placement arrangements and, within 30 days after receiving
notice of the court's finding, the person shall be placed in the
community in accordance with the treatment and supervision plan
unless good cause for not doing so is presented to the court.
(g) If the court rules against the committed person at the trial
for unconditional release from commitment, the court may place the
committed person on outpatient status in accordance with the
procedures described in Title 15 (commencing with Section 1600) of
Part 2 of the Penal Code.
(h) If the court denies the petition to place the person in an
appropriate forensic conditional release program or if the petition
for unconditional discharge is denied, the person may not file a new
application until one year has elapsed from the date of the denial.
(i) In any hearing authorized by this section, the petitioner
shall have the burden of proof by a preponderance of the evidence.
(j) If the petition for conditional release is not made by the
director of the treatment facility to which the person is committed,
no action on the petition shall be taken by the court without first
obtaining the written recommendation of the director of the treatment
facility.
(k) Time spent in a conditional release program pursuant to this
section shall not count toward the term of commitment under this
article unless the person is confined in a locked facility by the
conditional release program, in which case the time spent in a locked
facility shall count toward the term of commitment.
6608.5. (a) A person who is conditionally released pursuant to this
article shall be placed in the county of the domicile of the person
prior to the person's incarceration, unless the court finds that
extraordinary circumstances require placement outside the county of
domicile.
(b) (1) For the purposes of this section, "county of domicile"
means the county where the person has his or her true, fixed, and
permanent home and principal residence and to which he or she has
manifested the intention of returning whenever he or she is absent.
For the purposes of determining the county of domicile, the court may
consider information found on a California driver's license,
California identification card, recent rent or utility receipt,
printed personalized checks or other recent banking documents showing
that person's name and address, or information contained in an
arrest record, probation officer's report, trial transcript, or other
court document. If no information can be identified or verified, the
county of domicile of the individual shall be considered to be 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.
(2) In a case where the person committed a crime while being held
for treatment in a state hospital, or while being confined in a state
prison or local jail facility, the county wherein that facility was
located shall not be considered the county of domicile unless the
person resided in that county prior to being housed in the hospital,
prison, or jail.
(c) For the purposes of this section, "extraordinary circumstances"
means circumstances that would inordinately limit the department's
ability to effect conditional release of the person in the county of
domicile in accordance with Section 6608 or any other provision of
this article, and the procedures described in Sections 1605 to 1610,
inclusive, of the Penal Code.
(d) 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 sexually violent predators who are about to be
conditionally released under Section 6608. Upon notification by the
department of a person's potential or expected conditional release
under Section 6608, the county of domicile shall notify the
department of the name of the designated agency or program, at least
60 days before the date of the potential or expected release.
(e) In recommending a specific placement for community outpatient
treatment, the department or its designee shall consider all of the
following:
(1) The concerns and proximity of the victim or the victim's next
of kin.
(2) The age and profile of the victim or victims in the sexually
violent offenses committed by the person subject to placement. For
purposes of this subdivision, the "profile" of a victim includes, but
is not limited to, gender, physical appearance, economic background,
profession, and other social or personal characteristics.
(f) Notwithstanding any other provision of 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 of grades 1 to 12, inclusive, if either of the following
conditions exist:
(1) The person has previously been convicted of a violation of
Section 288.5 of, or subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 of, the Penal Code.
(2) The court finds that the person has a history of improper
sexual conduct with children.
6608.7. The State Department of Mental Health may enter into an
interagency agreement or contract with the Department of Corrections
or with local law enforcement agencies for services related to
supervision or monitoring of sexually violent predators who have been
conditionally released into the community under the forensic
conditional release program pursuant to this article.
6608.8. (a) For any person who is proposed for community outpatient
treatment under the forensic conditional release program, the
department shall provide to the court a copy of the written contract
entered into with any public or private person or entity responsible
for monitoring and supervising the patient's outpatient placement and
treatment program. This subdivision does not apply to subcontracts
between the contractor and clinicians providing treatment and related
services to the person.
(b) The terms and conditions of conditional release shall be
drafted to include reasonable flexibility to achieve the aims of
conditional release, and to protect the public and the conditionally
released person.
(c) The court in its discretion may order the department to,
notwithstanding Section 4514 or 5328, provide a copy of the written
terms and conditions of conditional release to the sheriff or chief
of police, or both, that have jurisdiction over the proposed or
actual placement community.
(d) (1) Except in an emergency, the department or its designee
shall not alter the terms and conditions of conditional release
without the prior approval of the court.
(2) The department shall provide notice to the person committed
under this article and the district attorney or designated county
counsel of any proposed change in the terms and conditions of
conditional release.
(3) The court on its own motion, or upon the motion of either
party to the action, may set a hearing on the proposed change. The
hearing shall be held as soon as is practicable.
(4) If a hearing on the proposed change is held, the court shall
state its findings on the record. If the court approves a change in
the terms and conditions of conditional release without a hearing,
the court shall issue a written order.
(5) In the case of an emergency, the department or its designee
may deviate from the terms and conditions of the conditional release
if necessary to protect public safety or the safety of the person. If
a hearing on the emergency is set by the court or requested by
either party, the hearing shall be held as soon as practicable. The
department, its designee, and the parties shall endeavor to resolve
routine matters in a cooperative fashion without the need for a
formal hearing.
(e) Notwithstanding any provision of this section, including, but
not limited to, subdivision (d), matters concerning the residential
placement, including any changes or proposed changes in the residence
of the person, shall be considered and determined pursuant to
Section 6609.1.
6609. Within 10 days of a request made by the chief of police of a
city or the sheriff of a county, the State Department of Mental
Health shall provide the following information concerning each person
committed as a sexually violent predator who is receiving outpatient
care in a conditional release program in that city or county: name,
address, date of commitment, county from which committed, date of
placement in the conditional release program, fingerprints, and a
glossy photograph no smaller than 3 1/8
