(a)
A person who has been committed as a sexually violent predator shall be permitted to petition the court for conditional release with or without the recommendation or concurrence of the Director of State Hospitals. 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,
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 under this subdivision shall be entitled to assistance of counsel in all hearings under this section. The person petitioning for conditional release shall serve a copy of the petition on the State Department of State Hospitals at the time the petition is filed with the court.
(b)
The procedure for a conditional release hearing in a case where the county of domicile has not yet been determined shall be as follows:
(1)
If the court deems the petition not frivolous pursuant to subdivision (a), the court shall give notice to the attorney designated in subdivision (i) of Section 6601, the retained or appointed attorney for the committed person, and the Director of State Hospitals
of its intention to set a conditional release hearing. The person petitioning for conditional release, the Director of State Hospitals, and the designated attorney of the county of commitment shall notify the court within 30 court days of receipt of this notice if it appears that a county other than the county of commitment may be the county of domicile.
(2)
If no county other than the county of commitment appears to be the county of domicile, the court shall determine, consistent with Section 6608.5, that the county of commitment is the county of domicile.
(3)
If it appears or there are allegations that one or more counties, other than the county of commitment, may be the county of domicile, the court shall set a hearing to determine the county of domicile, consistent with the provisions of Section 6608.5. The court shall, at least 30 court days prior to the hearing, give notice of the
domicile hearing to the persons listed in paragraph (1) and to the designated attorney for any county that is alleged to be the county of domicile. Persons listed in this paragraph and paragraph (1) may, at least 10 court days prior to the hearing, file and serve declarations, documentary evidence, and other pleadings, that are specific only to the issue of domicile. The court may, consistent with Section 6608.5, decide the issue of domicile solely on the pleadings, or additionally permit, in the interests of justice, argument and testimony.
(4)
After determining the county of domicile pursuant to paragraph (2) or (3), the court shall set a date for a conditional release hearing and shall give notice of the hearing at least 30 court days before the hearing to the persons described in paragraph (1) and the designated attorney for the county of domicile.
(5)
(A)If the county of domicile is different than the county of commitment, the designated attorney for the county of domicile and the designated attorney for the county of commitment may mutually agree that the designated attorney for the county of domicile will represent the state at the conditional release hearing. If the designated attorneys do not make this agreement, the designated attorney for the county of commitment will represent the state at the conditional release hearing.
(B)
At least 20 court days before the conditional release hearing, the designated attorney for the county of commitment shall give notice to the parties listed in paragraph (1) and to the court whether the state will be represented by the designated attorney of the county of domicile or the designated attorney of the county of commitment.
(C)
The designated attorney for the county of
domicile and the designated attorney for the county of commitment should cooperate with each other to ensure that all relevant evidence is submitted on behalf of the state. No attorney other than the designated attorney for the county representing the state shall appear on behalf of the state at the conditional release hearing.
(6)
The court’s determination of a county of domicile shall govern the current and any subsequent petition for conditional release under this section.
(7)
For the purpose of this subdivision, the term “county of domicile” shall have the same meaning as defined in Section 6608.5.
(8)
For purposes of this section, the term “designated attorney of the county of commitment” means the attorney designated in subdivision (i) of Section 6601 in the county of commitment.
(9)
For purposes of this section, the term “designated attorney for the county of domicile” means the attorney designated in subdivision (i) of Section 6601 in the county of domicile.
(c)
The proceedings for a conditional release hearing in a case where the court has previously determined the county of domicile shall be as follows:
(1)
If the court determines, pursuant to subdivision (a), that the petition is not frivolous, the court shall give notice of the hearing date at least 30 days prior to the hearing to the designated attorneys for the county of domicile and the county of commitment, the retained or appointed attorney for the petitioner, and the Director of State Hospitals.
(2)
Representation of the state at the conditional release hearing shall be
pursuant to paragraph (5) of subdivision (b).
(d)
(1)If a committed person has been conditionally released by a court to a county other than the county of domicile, and the jurisdiction of the person has been transferred to that county, pursuant to subdivision (g) of Section 6608.5, the notice specified in paragraph (1) of subdivision (c) shall be given to the designated attorney of the county of placement, who shall represent the state in any further proceedings.
(2)
The term “county of placement” means the county where the court has placed a person who is granted conditional release.
(e)
If the petition for conditional release is made without the consent of the director of the treatment facility, no action shall be taken on the petition by the court without first obtaining the written recommendation of the director of the treatment facility.
(f)
A hearing upon the petition shall not be held until the person who is committed has been under commitment for confinement and
care in a facility designated by the Director of State Hospitals for not less than one year from the date of the order of commitment. A hearing upon the petition shall not be held until the community program director designated by the State Department of State Hospitals submits a report to the court that makes a recommendation as to the appropriateness of placing the person in a state-operated forensic conditional release program.
(g)
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. The attorney designated pursuant to
paragraph (5) of subdivision (b) shall represent the state and may have the committed person evaluated by experts chosen by the state. The committed person shall have the right to the appointment of experts, if he or she so requests. 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, except as provided in subdivision (g) of Section 6608.5.
(h)
Before placing a committed person in a state-operated forensic conditional release program, the community program director designated by the State Department of State Hospitals 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.
(i)
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.
(j)
If the court denies the petition to place the person in an appropriate forensic conditional release program, the person may not file a new application until one year has elapsed from the date of the denial.
(k)
In a hearing authorized by this section, the committed person shall have the burden of proof by a preponderance of the evidence, unless the report required by Section 6604.9 determines that conditional release to a less restrictive alternative is in the best
interest of the person and that conditions can be imposed that would adequately protect the community, in which case the burden of proof shall be on the state to show, by a preponderance of the evidence, that conditional release is not appropriate.
(l)
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.
(m)
After a minimum of one year on conditional release, the committed person, with or without the recommendation or concurrence of the Director of State Hospitals, may petition the court for unconditional discharge. The court shall use the procedures described in subdivisions (a) and (b) of Section 6605 to determine if the person should be unconditionally discharged from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is no longer 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.