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Confining Sexual Predators
FOCUS COLUMN

By Dennis Landin

      California has a law that permits people who have committed certain sex crimes to remain in custody long after serving their prison terms. This is the Sexually Violent Predator Act, which has been on the books since 1995.
      The objective of this article and self-study test is to familiarize bench officers and attorneys with the essential workings of the act. By reviewing the article and taking the accompanying test, readers learn about which people qualify for the act, the types of crimes and mental disorders that render people eligible, the mechanisms that govern the act, including probable-cause hearings and jury trials, and new changes that have altered the law.
     
Requiring Confinement

      The act was intended to require that people subject to its provisions be "confined and treated until such time that it can be determined that they no longer represent a threat to society." Statutes 1995, Chapter 763, Section 1 (A.B. 888). Although proceedings under the act have features similar to those found in criminal prosecutions, they are in a class of their own. They are not civil matters but a "special proceeding of a civil nature." People v. Superior Court (Cheek), 94 Cal.App.4th 980 (2001). As such, they are subject to the Civil Discovery Act, Code of Civil Procedure Section 2017.010, et seq.
      California's law was expressly held to be constitutional over objections that the act violated due process, equal protection and ex post facto in Hubbart v. Superior Court, 19 Cal.4th 1138 (1999). The United States Supreme Court had paved the way for this holding in Kansas v. Hendricks, 521 U.S. 346 (1997), where it had rejected the same challenges to a statute similar to the act. Responding to concerns that these type of statutes could be used to incarcerate typical recidivists in ordinary criminal cases, the U.S. Supreme court held that a person could be civilly committed only if the person has a "serious mental disorder" that causes the person to exhibit "a special and serious lack of ability to control behavior." Kansas v. Crane, 534 U.S. 407 (2002).
      Welfare and Institutions Code Section 6601(a)(1) requires that a person be serving a prison sentence to be subject to the act. People out of prison on parole are not subject to the act because, even though they are under the constructive custody of the Department of Corrections and Rehabilitation, they are not actually serving a prison sentence. Section 6601(a)(1). However, if the person is in custody because his or her parole was revoked, this constitutes prison custody for purposes of the act. Section 6601(a)(1).
      Regarding a person's qualifying criminal record, the act's requirements changed late last year. Previously, the person needed to have been convicted of two or more predicate offenses, but after the electorate amended the law on Nov. 7, 2006, by approving Jessica's Law, the number was reduced to one. See Section 6600(a). It is not yet known whether a person will qualify under the act with merely a single prior offense committed before Nov, 8, 2006, the effective date of Jessica's Law.
      Whether one or two predicate offenses are required, the prior must be a "sexually violent offense," as defined in Welfare and Institutions Code Section 6600(b), including rape, sodomy, oral copulation and several other sex crimes. But violent behavior is not always required. For example, lewd acts against a person younger than 14, Penal Code Section 288, whether or not accomplished by force or violence, specifically count under the act. Section 6600(b). Jessica's Law also changed the act by deleting the requirement that the lewd act on a child under Penal Code Section 288 have consisted of "substantial sexual conduct," such as penetration or masturbation. Here, too, a question exists whether a lewd act without substantial sexual conduct suffered before Jessica's Law's effective date renders a person eligible.
     
Required Mental State

      In order to qualify under the act, a person must have a "diagnosed mental disorder," which 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." Section 6600(c). In addition, the mental disorder must make it "likely that he or she will engage in sexually violent criminal behavior." Section 6600(a).
      The likelihood that the person will re-offend has been construed to mean a "substantial danger" or a "serious and well-founded risk" that the person will commit a new sex offense. People v. Superior Court (Ghilotti), 27 Cal.4th 888 (2002). Although difficult to quantify precisely, evidence that a person had a "better than 50 percent probability" of re-offending is enough to satisfy this standard. People v. Roberge, 29 Cal.4th 979 (2003).
      The act's ball starts rolling at least six months before a person is about to be released from prison. Section 6601(a)(1). Within that period, the person is "screened by the Department of Corrections and the Board of Prison Terms 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." Section 6601(b).
      If the initial screening determines that the person is likely a sexually violent predator, then the person is referred to the State Department of Mental Health for a full evaluation. Section 6601(b). This is performed by mental health professionals, at least one of whom must be a practicing psychiatrist. Section 6601(d).
      The mental health experts use the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders in order to reach a particular diagnosis. If two experts conclude that the person falls within the definition of a sexually violent predator, the Department of Mental Health sends a letter to the county that imposed the prison sentence with a request to file a petition under the act. Section 6601(i).
      On the filing of the petition by either the district attorney or county counsel, 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." Section 6601.5. If the petition meets this threshold, the judge informs the inmate, now the "respondent," and orders him or her detained until a probable-cause hearing is conducted. Section 6601.5.
     
Probable-Cause Hearing

      Assuming that the court has determined probable cause exists based on the allegations in the petition, the next step in the proceeding under the act is the full-blown probable-cause evidentiary hearing, which must occur within 10 days unless good cause is shown for a continuance. Sections 6601.5, 6602. The purpose of the hearing is to allow the respondent "to challenge the facts alleged in [the petition] purportedly showing he or she is likely to engage in sexually violent predatory criminal behavior upon release from custody." In re Parker, 60 Cal.App.4th 1453 (1998).
      The respondent is entitled to legal representation at the hearing and to the appointment of counsel if he or she is indigent. Section 6602(a). The judge must examine all the evidence presented to ascertain "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." Section 6602(a). The California Supreme Court has determined that the People have the burden of showing at this hearing that "a reasonable person could entertain a strong suspicion" that the People have established all the elements necessary for a commitment under the act. Cooley v. Superior Court, 29 Cal.4th 228 (2002). To meet this burden, the People produce conviction records and usually call as witnesses the experts who interviewed the respondent when the matter was referred to the Department of Mental Health.
      If the court determines that no probable cause exists, the court must dismiss the petition. Turner v. Superior Court, 105 Cal.App.4th 1046 (2003). If probable cause is found, a trial is ordered to determine whether the respondent should be committed as a sexual violent predator. Section 6603(a). Pending trial, the court must order that the respondent remain in a secure facility, which can include a state mental hospital. Sections 6602(a), 6602.5.
     
The Trial

      If a trial has been ordered, in addition to the right to an attorney, the respondent is entitled to retain professionals to perform an examination on his or her behalf and has the right to review the medical and psychological documents that have been generated in the case. Section 6603(a). At the trial, the People must prove beyond a reasonable doubt that the respondent meets the criteria for commitment under the act as mentioned above. Section 6604. Unlike in a criminal case, the respondent can be called as a witness by the People, and documentary evidence, such as probation reports, may be admitted to show the details of the predicate offense to determine whether the respondent's crimes were of a predatory nature. Section 6600(a)(3).
      If requested by either party, the trial must be before a jury, and the verdict must be unanimous. Section 6603(b), (e), (f). A retrial can be conducted if there is a hung jury. People v. Turner, 78 Cal.App.4th 1131 (2000).
     
Post-Trial Proceedings

      If the person is found to meet the criteria under the act at the trial, then he or she is committed to the Department of Mental Health. Section 6604. Before amendments by the Legislature, the period of commitment was listed as two years. The Legislature amended the law on Sept. 20, 2006, to change the commitment to an indeterminate term, and Jessica's Law agreed that the period of commitment should be indeterminate. Section 6604.
      Whether courts will hold that the extension of commitments applies even to people in prison on Sept. 20, 2006, is unknown. However, because the original Sexually Violent Predator Act was held not to be ex post facto regarding people who were in prison when the Legislature enacted the measure in 1995 (see Hubbart), an ex post facto challenge here likely also will fail.
      Also, in a case involving a "recommitment proceeding" - one begun while a person is serving a previously ordered two-year sexually violent predator commitment - a court recently held that ordering an indefinite term would not be a retroactive application of the law because the finding made at trial is the respondent's current mental condition, not conduct completed before the change in law. See Bourquez v. Superior Court, 2007 Cal. App. Lexis 1855 (2007).
      People committed under the act are housed at either Atascadero State Hospital or Coalinga State Hospital, where they must be provided with a comprehensive treatment program to address their particular mental disorder. Section 6606.
      At least one year after the commitment, the person may petition for release the court that committed him or her. Section 6608(a). The court can summarily deny the petition if it was filed less than one year from the commitment (Section 6608(h)), if it is frivolous (Section 6608(a)) or if a previous petition has been denied as frivolous or denied because the person's condition has not changed and no new facts show a changed condition. People v. Collins, 110 Cal.App.4th 340 (2003).
      If the petition is not summarily denied, a full hearing must be conducted on the petition, with the burden of proof on the committed person to establish by a preponderance of the evidence that he or she poses no danger to others if released. Section 6608(i).
     
      Dennis Landin is a judge of the Los Angeles County Superior Court.
     

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