Bill Text: CA SB709 | 2013-2014 | Regular Session | Introduced
Bill Title: Inmates: mental evaluations.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-02-03 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB709 Detail]
Download: California-2013-SB709-Introduced.html
BILL NUMBER: SB 709 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Nielsen
FEBRUARY 22, 2013
An act to amend Section 2962 of the Penal Code, and to amend
Section 6601 of the Welfare and Institutions Code, relating to
inmates.
LEGISLATIVE COUNSEL'S DIGEST
SB 709, as introduced, Nielsen. Inmates: mental evaluations.
Existing law requires that as a condition of parole, a prisoner
who has a severe mental disorder, as defined, shall be required to be
treated by the State Department of State Hospitals, and the State
Department of State Hospitals shall provide the necessary treatment.
Existing law requires that, prior to release on parole, the person in
charge of treating the prisoner and a practicing psychiatrist or
psychologist from the State Department of State Hospitals have
evaluated the prisoner at a facility of the Department of Corrections
and Rehabilitation.
This bill would require the evaluation to be a face-to-face
evaluation.
Existing law requires that whenever the Secretary of the
Department of Corrections and Rehabilitation determines that an
individual who is in custody under the jurisdiction of the
department, 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or whose parole has been revoked, may be a sexually violent predator,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 6 months prior to that individual's
scheduled date for release from prison, refer the person for
evaluation to the State Department of State Hospitals. Existing law
requires the State Department of State Hospitals to evaluate the
person in accordance with a standardized assessment protocol,
developed and updated by that department, to determine whether the
person is a sexually violent predator.
This bill would require the evaluation to be a face-to-face
evaluation. The bill would make additional technical changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2962 of the Penal Code is amended to read:
2962. As a condition of parole, a prisoner who meets the
following criteria shall be required to be treated by the State
Department of State Hospitals, and the State Department of State
Hospitals shall provide the necessary treatment:
(a) (1) The prisoner has a severe mental disorder that is not in
remission or cannot be kept in remission without treatment.
(2) The term "severe mental disorder" means an illness or disease
or condition that substantially impairs the person's thought,
perception of reality, emotional process, or judgment; or which
grossly impairs behavior; or that demonstrates evidence of an acute
brain syndrome for which prompt remission, in the absence of
treatment, is unlikely. The term "severe mental disorder" as used in
this section does not include a personality or adjustment disorder,
epilepsy, mental retardation or other developmental disabilities, or
addiction to or abuse of intoxicating substances.
(3) The term "remission" means a finding that the overt signs and
symptoms of the severe mental disorder are controlled either by
psychotropic medication or psychosocial support. A person "cannot be
kept in remission without treatment" if during the year prior to the
question being before the Board of Parole Hearings or a trial court,
he or she has been in remission and he or she has been physically
violent, except in self-defense, or he or she has made a serious
threat of substantial physical harm upon the person of another so as
to cause the target of the threat to reasonably fear for his or her
safety or the safety of his or her immediate family, or he or she has
intentionally caused property damage, or he or she has not
voluntarily followed the treatment plan. In determining if a person
has voluntarily followed the treatment plan, the standard shall be
whether the person has acted as a reasonable person would in
following the treatment plan.
(b) The severe mental disorder was one of the causes of or was an
aggravating factor in the commission of a crime for which the
prisoner was sentenced to prison.
(c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the prisoner's
parole or release.
(d) (1) Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or psychologist
from the State Department of State Hospitals have evaluated the
prisoner in a face-to-face evaluation at a facility of the
Department of Corrections and Rehabilitation, and a chief
psychiatrist of the Department of Corrections and Rehabilitation has
certified to the Board of Parole Hearings that the prisoner has a
severe mental disorder, that the disorder is not in remission, or
cannot be kept in remission without treatment, that the severe mental
disorder was one of the causes or was an aggravating factor in the
prisoner's criminal behavior, that the prisoner has been in treatment
for the severe mental disorder for 90 days or more within the year
prior to his or her parole release day, and that by reason of his or
her severe mental disorder the prisoner represents a substantial
danger of physical harm to others. For prisoners being treated by the
State Department of State Hospitals pursuant to Section 2684, the
certification shall be by a chief psychiatrist of the Department of
Corrections and Rehabilitation, and the evaluation shall be done at a
state hospital by the person at the state hospital in charge of
treating the prisoner and a practicing psychiatrist or psychologist
from the Department of Corrections and Rehabilitation.
(2) If the professionals doing the evaluation pursuant to
paragraph (1) do not concur that (A) the prisoner has a severe mental
disorder, (B) that the disorder is not in remission or cannot be
kept in remission without treatment, or (C) that the severe mental
disorder was a cause of, or aggravated, the prisoner's criminal
behavior, and a chief psychiatrist has certified the prisoner to the
Board of Parole Hearings pursuant to this paragraph, then the Board
of Parole Hearings shall order a further examination by two
independent professionals, as provided for in Section 2978.
(3) If at least one of the independent professionals who evaluate
the prisoner pursuant to paragraph (2) concurs with the chief
psychiatrist's certification of the issues described in paragraph
(2), this subdivision shall be applicable to the prisoner. The
professionals appointed pursuant to Section 2978 shall inform the
prisoner that the purpose of their examination is not treatment but
to determine if the prisoner meets certain criteria to be
involuntarily treated as a mentally disordered offender. It is not
required that the prisoner appreciate or understand that information.
(e) The crime referred to in subdivision (b) meets both of the
following criteria:
(1) The defendant received a determinate sentence pursuant to
Section 1170 for the crime.
(2) The crime is one of the following:
(A) Voluntary manslaughter.
(B) Mayhem.
(C) Kidnapping in violation of Section 207.
(D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as provided
in subdivision (b) of Section 12022, in the commission of that
robbery.
(E) Carjacking, as defined in subdivision (a) of Section 215, if
it is charged and proved that the defendant personally used a deadly
or dangerous weapon, as provided in subdivision (b) of Section 12022,
in the commission of the carjacking.
(F) Rape, as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(G) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(H) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
(I) Lewd acts on a child under the age of 14 years in violation of
Section 288.
(J) Continuous sexual abuse in violation of Section 288.5.
(K) The offense described in subdivision (a) of Section 289 where
the act was accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(L) Arson in violation of subdivision (a) of Section 451, or arson
in violation of any other provision of Section 451 or in violation
of Section 455 where the act posed a substantial danger of physical
harm to others.
(M) Any felony in which the defendant used a firearm which use was
charged and proved as provided in Section 12022.5, 12022.53, or
12022.55.
(N) A violation of Section 18745.
(O) Attempted murder.
(P) A crime not enumerated in subparagraphs (A) to (O), inclusive,
in which the prisoner used force or violence, or caused serious
bodily injury as defined in paragraph (4) of subdivision (f) of
Section 243.
(Q) A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in such a manner that a reasonable
person would believe and expect that the force or violence would be
used. For purposes of this subparagraph, substantial physical harm
shall not require proof that the threatened act was likely to cause
great or serious bodily injury.
(f) As used in this chapter, "substantial danger of physical harm"
does not require proof of a recent overt act.
SEC. 2. Section 6601 of the Welfare and Institutions Code is
amended to read:
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 State Hospitals 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 State Hospitals
for a full evaluation of whether the person meets the criteria
in Section 6600.
(c) The State Department of Mental Health
State Hospitals shall evaluate the person in accordance with a
standardized assessment protocol, developed and updated by the State
Department of Mental Health State Hospitals
, 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
in a face-to-face evaluation 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
State Hospitals 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) An order issued by a judge pursuant to Section 6601.5, finding
that the petition, on its face, supports a finding of 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, shall toll that person's parole pursuant to paragraph
(4) of subdivision (a) of Section 3000 of the Penal Code, if that
individual is determined to be a sexually violent predator.
(l) Pursuant to subdivision (d), the attorney designated by the
county pursuant to subdivision (i) shall notify the State Department
of Mental Health State Hospitals 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, 2013, whichever occurs
first.
