Our law firm represents inmates at Sexually Violent Predator proceedings throughout California, helping them to gain release from custody and a chance to rebuild a normal life outside of prison.
When an inmate is released from the California State Prison, the state places him/her on parole. California's parole laws vary with respect to (1) when the inmate will be eligible for parole, and (2) the length of the individual's parole period.
If the inmate is sentenced to a determinate sentence (that is, a sentence for a specific number of years), he/she will automatically be paroled at the conclusion of that term. However, if the inmate is sentenced to an indeterminate or life sentence (that is, a sentence for "x" years to life), the state must first grant the individual parole pursuant to a California Board of Parole suitability (Lifer) hearing.
But if the inmate is suspected of being a sexually violent predator or "SVP", he/she must alternatively undergo special parole proceedings to determine if he/she is ready to "reenter" society.
Below, our California criminal defense attorneys1 address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
A "sexually violent predator" is a person who "has been convicted of a sexually violent offense against one or more victims2 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".3
Although the phrase "sexually violent offense" includes a variety of California sex crimes, its core definition applies to acts of force, violence, duress, and menace, or threats of immediate bodily injury -- or future retaliation against -- a person, when you engage in these acts while violating
- California's rape laws,
- Penal Code 286 PC California's unlawful sodomy law,
- Penal Code 288a California's unlawful oral copulation law,
- certain child molestation charges including Penal Code 288 PC California's law prohibiting lewd acts with a minor, Penal Code 269 PC aggravated sexual assault of a child, and Penal Code 288.5 PC continuous sexual abuse of a child,
- Penal Code 207 PC California's kidnapping law when committed with the intention of committing one of the above mentioned sex crimes, or
- Penal Code 220 PC California's law against committing an assault with the intention of engaging in one of the above mentioned California sex crimes.4
It is important to understand that not all sex offenders -- and not even all of those who have been required to register as a sex offender -- are sexually violent predators. In fact, the vast majority are not, as only a very small percentage of the sex offender population is actually placed into this category.
As California's "High Risk Sex Offender and Sexually Violent Predator Task Force" explains,
"Although major mental illnesses such as schizophrenia, bipolar disorder, or organic brain syndrome qualify as mental disorders, most SVPs primarily suffer from some type of paraphilia. Paraphilic disorders are diagnosable conditions characterized by deviant sexual urges, fantasies or behaviors involving humiliation of others, sexual activity with children and/or sexual activity with other non-consenting persons, and they occur over a period of at least six months. These deviant sexual urges, fantasies, or behaviors are sufficiently intense to cause significant distress or impairment in important areas of functioning."5
Sexually violent predators are identified while they are incarcerated. The California Board of Parole Hearings (BPH) evaluates inmates who have been convicted of one of the sexually violent offenses listed above to determine whether they are potential SVPs.6
This evaluation begins about six months prior to the individual's scheduled release date. The BPH is ultimately governed by the California Department of Corrections and Rehabilitation (CDCR). It is the board that determines who will and will not be released on parole.
If the Board of Parole Hearings believes that an inmate is a potential SVP, it refers the individual to the California Sex Offender Management Board for further screening.
Even if the inmate is scheduled to be released, the Board may require him/her to remain incarcerated for a maximum of an additional 45 days in order for the Department of Mental Health (DMH) to examine the case.7
Once the DMH has the case, it then carefully examines the individual's entire criminal history to determine whether he/she meets the legal definition of a sexually violent predator.8
If it determines that the individual does meet that criteria, the department assigns two clinicians (either two practicing psychologists, two psychiatrists, or one of each) to perform independent, in-depth psychological evaluations. These clinicians must decide
- whether the inmate has a diagnosable mental disorder, and
- if so, whether that disorder makes it likely that the individual will commit new sexually violent predatory acts once released from prison.9
But as Riverside County criminal defense attorney Michael Scafiddi10 explains, "Before the state can label someone an SVP, both of the above criteria must be satisfied. That is, it must determine that the individual in fact suffers from a diagnosable mental disorder and that the disorder makes it likely that he/she will commit new sexually violent predatory acts if released."
Let's take a closer look at a few of these terms and phrases.
A diagnosable mental disorder
A "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."11
This definition is completely different from that used to identify and evaluate California parole conditions for mentally disordered offenders (MDOs). The definition used here is specific to mental disorders that affect SVPs.
Under California parole law, a sexually violent predator is "likely" to commit new offenses if he/she presents a substantial danger or a serious and well-founded risk of reoffending. While the term "likely" necessarily means that the chance of reoffending must be more than probable, it doesn't require any type of guarantee that it means "better than even".12
A "predatory" act is "an act 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."13
There is no requirement that the prior committed sex offense(s) must have been predatory in nature. The only consideration is whether a diagnosed mental disorder will likely lead to future predatory acts.14
The clinicians' findings
If the clinicians disagree about whether the inmate qualifies as a sexually violent predator, they will refer the case to two more independent clinicians who must agree that the inmate qualifies as an SVP in order to refer him/her to the DA. If they do not agree, the SVP investigation will end, and the individual will be released on parole.15
Similarly, if either the original clinicians or the new clinicians agree that the inmate is not an SVP, the individual will be released from prison and begin his/her parole.16 But if they agree that the individual is a sexually violent predator, they will refer the case to the District Attorney for commitment proceedings.17
SVP commitment proceedings are held in the county in which the inmate was last convicted and sentenced. The judge conducts an initial probable cause hearing to determine whether full-blown commitment proceedings are warranted.
A "probable cause" hearing is a hearing to determine whether reasonable grounds exist to believe that the defendant is, indeed, a sexually violent predator. The inmate is entitled to be represented by an attorney at this hearing.18
If the judge finds that full commitment proceedings are justified -- and either the judge or a unanimous jury finds beyond a reasonable doubt that the inmate is a sexually violent predator, he/she will be committed to the Department of Mental health for an indefinite stay.19
This is an exception to California's parole law. Generally speaking, parole begins immediately upon the release from prison. However, when a sexually violent predator is committed to a state hospital after incarceration, his/her parole is tolled (that is, suspended) until that individual is no longer labeled an SVP.20
If there is no such finding, the inmate will be released and placed on parole.21 However, participation in a community treatment facility is often a condition of parole.
Once the state commits a sexually violent predator, it will conduct an annual review. At that point, the Department of Mental Health may decide that the patient is ready to be re-released into the community on a "conditional release program". In addition or alternatively, the sexually violent predator may petition the court for the same relief.
If the court agrees that the patient no longer meets the SVP criteria.and will not pose a public safety threat if conditionally released into a supervised program.it will order his/her release.22
If released, the conditional release program monitors the individual 24 hours a day / 7 days a week by engaging in supervision procedures such as
- conducting scheduled and unannounced home visits (where supervisors search for unauthorized materials),
- conducting scheduled and unscheduled drug tests,
- conducting regularly scheduled check-ups to assess the mental health of the patient,
- utilizing continuous electronic monitoring devices, such as global positioning systems (GPS) to ensure compliance with travel and curfew limitations, and
- other surveillance to make sure the patient is taking approved routes to/from work, avoiding high-risk situations, and complying with his/her requirements under Penal Code 290 PC California's Sex Offender Registration Act.23
Alternatively, the court could decide that the patient is ready for unconditional release. When a patient is placed on unconditional release, a CDCR parole agent supervises the individual for the length of his/her parole.typically between ten and fifteen years.24
An individual on parole must still maintain his/her Penal Code 290 PC California sex offender registration requirements for life and otherwise abide by his/her parole terms and conditions. And just like anyone else, a parolee who violates any of these conditions is subject to a California parole violation / revocation hearing.
If the court does not believe that the patient is ready for release, the period of commitment continues to run indefinitely, with regular annual reviews.
Contact us for more information.
If you or a loved one is charged with a sexually violent predator and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
In Colorado? See our article about SVPs in Colorado.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada parole hearings. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.25
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2Prior to the enactment of Jessica's Law in November 2006 (which modified then existing laws making more sex offenders eligible to receive treatment as sexually violent predators), a person wasn't designated a sexually violent predator unless he/she victimized two or more persons.
4See same. ("(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 [Penal Code] Section 261 [California's rape law], 262, 264.1, 269, 286 [California's unlawful sodomy law], 288 [California's law prohibiting lewd acts with a minor], 288a [California's unlawful oral copulation law], 288.5, or 289 of the Penal Code, or any felony violation of Section 207 [California's kidnapping law], 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.") For a more detailed description of California sex crimes that satisfy this definition for "sexually violent offense" click on California Welfare and Institutions Code 6600 WIC, endnote 3, above.
6California Welfare and Institutions Code 6601 WIC -- Persons in custody; determination as potential sexually violent predator; prerelease evaluations; petition for commitment; time limitations exclusion; costs to department; reports. ("(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.")
7California Welfare and Institutions Code 6601.3 -- Custodial evaluation; maximum time. ("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 [for a sexually violent predator evaluation] 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.")
8See same. ("(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.")
9See same. ("(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.")
10Riverside County criminal defense attorney Michael Scafiddi represents clients throughout the Inland Empire, including Palm Springs, Hemet, Murrieta, Temecula, Rancho Cucamonga, and San Bernardino.
11California Welfare and Institutions Code 6600 WIC -- Sexually Violent Predator; definitions, subdivision "c".
12People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916. ("We agree with the People that " likely to engage in acts of sexual violence" (italics added), as used in section 6601, subdivision (d), does not mean the risk of reoffense must be higher than 50 percent. Instead, the phrase requires a determination that, as the result of a current mental disorder which predisposes the person to commit violent sex offenses, he or she presents a substantial danger-that is, a serious and well-founded risk-of reoffending in this way if free. If an evaluator finds such a serious and well-founded risk, but nonetheless recommends against commitment or recommitment solely because the evaluator cannot conclude the person is more likely than not to reoffend, the evaluator has applied the statute erroneously.")
13California Welfare and Institutions Code 6600 WIC -- Sexually Violent Predator; definitions, subdivision "e".
14People v. Torres (2001) 25 Cal.4th 680, 682. ("In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [81 Cal.Rptr.2d 492, 969 P.2d 584], we upheld the constitutionality of the Sexually Violent Predators Act (Welf. & Inst. Code, 6600 et seq. (Act)). FN1 (1a) The Act provides for civil commitment of criminal defendants who, after serving their prison terms, are found to be "sexually violent predator[s]." (6604.) At issue here is whether this determination must be based upon a finding by the trier of fact at trial that the defendant's prior sexual crimes involved "predatory acts," which are statutorily defined as acts against a stranger, a casual acquaintance, or someone cultivated for the purpose of victimization. ( 6600, subd. (e).) We conclude that the trier of fact need not make such a finding.")
15California Welfare and Institutions Code 6601 WIC -- Persons in custody; determination as a potential sexually violent predator. ("(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).")
17See California Welfare and Institutions Code 6601 WIC -- Persons in custody; determination as potential sexually violent predator, subdivision "d" endnote 9, above.
18California Welfare and Institutions Code 6602 WIC -- Probable cause hearing; right to counsel; custody requirements; continuances. ("(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.")
19California Welfare and Institutions Code 6604 WIC -- Burden of proof; commitment for treatment; term; facilities. ("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.") The fact that an SVP is recommitted for an indefinite term is a 2006 amendment to the previous law which only authorized recommitment for a two-year term.
20California Penal Code 3000 PC -- Legislative findings, declarations and intent; parole; discharge from custody; meetings with inmates; reconsideration of length and conditions; return to custody. ("(a)(1) The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the effective supervision of and surveillance of parolees, including the judicious use of revocation actions, and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. A sentence pursuant to Section 1168 or 1170 shall include a period of parole, unless waived, or as otherwise provided in this article.(4) The parole period of any person found to be a sexually violent predator shall be tolled until that person is found to no longer be a sexually violent predator, at which time the period of parole, or any remaining portion thereof, shall begin to run.")
21See California Welfare and Institutions Code 6604 WIC -- Burden of proof; commitment for treatment; term; facilities, endnote 18, above.
22California Welfare and Institutions Code 6605 -- Post-commitment examinations; filing of report with court; petition for conditional release; hearing; burden of proof; term of commitment; request for review by Department of Mental Health.
24California Penal Code 3000 PC -- Legislative findings, declarations and intent; parole; discharge from custody; meetings with inmates; reconsideration of length and conditions; return to custody. ("(3) Notwithstanding paragraphs (1) and (2), in the case of any offense for which the inmate has received a life sentence pursuant to Section 667.61 [which includes sexually violent predatory offenses] or Penal Code 667.71, the period of parole shall be 10 years..(C) Except as provided in Section 3064, in no case may a prisoner subject to 10 years on parole be retained under parole supervision or in custody for a period longer than 15 years from the date of his or her initial parole.")
25Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's firearm and weapons laws. Their Nevada law offices are located in Reno and Las Vegas.