AB 1902

Introduced by Assembly Member Pellerin
 An act to amend Section 876 of the Welfare and Institutions Code, relating to juveniles.
juveniles
Secure youth treatment facilities.
Existing law requires a probation department to request that the prosecuting attorney petition the committing court for an order directing that a person confined in a secure youth treatment facility remain subject to the control of the department at the time of discharge if the person confined is determined to be physically dangerous to the public because of the person’s mental or physical condition, disorder, or other problem that causes the person to have serious difficulty controlling their dangerous behavior. Existing law establishes the process for the petition, probable cause hearing, trial, continued detention, and appeal pursuant to this provision. Under existing law, if an order for continued detention is made pursuant to these provisions, the probation department has continued control over the person, except as specified, and existing law requires the department to, within 2
			 years after the date of the order made by a juvenile court or after conviction in criminal proceedings, file a new application for continued detention if continued detention is deemed necessary.
This bill would require, if a petition is filed pursuant to these provisions, that the person who is the subject of the petition remain in custody in a secure youth treatment facility until the conclusion of the proceedings. The bill would prohibit a probable cause hearing pursuant to these provisions from being continued, except upon a showing of good cause by the party requesting the continuance. The bill would also authorize the court to base the finding of probable cause on certain hearsay statements, as specified. The bill would require the person be brought to trial within 60 days from the probable cause determination, unless good cause to the contrary is shown, the person enters a waiver, or the person requests or consents to the setting of the trial date beyond the
			 60-day period. The bill would require the court, if the court or jury finds that the person has a mental condition or disorder, to determine a period of continued detention, as specified. The bill would require the department to file a new application within the specified time of an order for continued detention if the department deems continued detention pursuant to these provisions is necessary. The bill would specify that the discovery process for criminal proceedings applies to these provisions. To the extent that this bill would increase local duties relating to the confinement of persons in a secure youth treatment facility, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would
			 provide that no reimbursement is required by this act for a specified reason.
The people of the State of California do enact as follows:
SECTION 1.
Section 876 of the
Welfare and Institutions Code
 is amended to read:
876.
(a) If a probation department determines that the discharge of a person confined in a secure youth treatment facility from the control of the court at the time required by Section 875 would be physically dangerous to the public because of the person’s mental or physical condition, disorder, or other problem that causes the person to have serious difficulty controlling their dangerous behavior, the department shall request the prosecuting attorney to petition the committing court for an order directing that the person remain subject to the control of the department beyond that time. The petition shall be filed at least 90 days before the time of
						discharge otherwise required. The petition shall be accompanied by a written statement of the facts upon which the department bases its opinion that discharge at the time stated would be physically dangerous to the public, but the petition may not be dismissed and an order may not be denied merely because of technical defects in the application.
(b) The prosecuting attorney shall promptly notify the probation department of a decision not to file a petition.
(c) If a petition is filed with the court and, upon review, the court determines that the petition, on its face, supports a finding of probable cause, the court shall order that the person remain in custody in a secured youth treatment
						facility until the conclusion of a probable cause hearing and shall order that a hearing be held. The court shall provide notification of the hearing to the person whose liberty is involved and, if the person is a minor, the minor’s parent or guardian, if the minor’s parent or guardian can be reached, and, if not, the court shall appoint a person to act in the place of the parent or guardian and shall afford the person an opportunity to appear at the hearing with the aid of counsel and the right to cross-examine experts or other witnesses upon whose information, opinion, or testimony the petition is based.  The court shall inform the person named in the petition of their right of process to compel attendance of relevant witnesses and the production of relevant evidence.  When the person is unable to provide their own counsel, the court shall appoint counsel to represent them. The
						probable cause hearing shall be held within 10 calendar days after the date the order is issued pursuant to this subdivision unless the person named in the petition waives this time. The probable cause hearing shall not be continued, except upon a showing of good cause by the party requesting the continuance.
(d) (1) At the probable cause hearing, the court shall receive evidence and determine whether there is probable cause to believe that discharge of the person would be physically dangerous to the public because of the person’s mental or physical condition, disorder, or other problem that causes the person to have serious difficulty controlling dangerous behavior. Notwithstanding Section 1200 of the Evidence Code, the finding of probable cause may be based in whole or in part on the opinions of an expert admitted through
						the expert’s reports provided that the report was first attached to, or incorporated by, reference in the petition. The finding of probable cause may also be based in whole or in part on the sworn testimony of a law enforcement officer or honorably retired law enforcement officer as defined in Section 872 of the Penal Code. Nothing in this section shall abrogate the person’s right to cross-examination or to compel the attendance of witnesses.
(2) If the court determines there is not probable cause, the court shall dismiss the petition and the person shall be discharged from the control of a secure youth treatment facility at the time required by Section 875, as applicable.  If the court determines there is probable cause, the court shall order that the person remain in custody in a secure youth treatment facility until the conclusion of
						the proceedings and the court shall order that a trial be conducted to determine whether the person is physically dangerous to the public because of their mental or physical condition, disorder, or other problem.
(e) (1) If a trial is ordered, the trial shall be by jury unless the right to a jury trial is personally waived by the person, after the person has been fully advised of the constitutional rights being waived, and by the prosecuting attorney, in which case trial shall be by the court. The person shall be brought to trial within 60 days from the determination that there is probable cause, unless good cause to the contrary is shown, the person enters a general waiver of the 60-day trial requirement, or the person requests or consents to the setting of a trial date beyond the 60-day period.  The court shall submit
						to the jury, or, at a court trial, the court shall answer, the following question:  Is the person physically dangerous to the public because of a mental or physical condition, disorder, or other problem that causes the person to have serious difficulty controlling their dangerous behavior?  The court’s previous order entered pursuant to this section shall not be read to the jury, nor alluded to in the trial.  The person shall be entitled to all rights guaranteed under the federal and state constitutions in criminal proceedings.   A unanimous jury verdict shall be required in any jury trial. As to either a court or a jury trial, the standard of proof shall be that of proof beyond a reasonable doubt.
(2) If the court or jury finds that the person has a mental condition or disorder as described in paragraph (1), the court shall determine the
						period of continued detention informed by the evidence presented at trial and a clinical assessment by the person’s treatment team at the secure youth treatment facility based on the person’s individual treatment needs for the underlying mental condition, disorder, or other problem. The period shall not exceed 3 years. The court shall state on the record the basis for the period ordered.
(f) (1) If an order for continued detention is made pursuant to this section, the control of the
						department over the person shall continue, subject to the provisions of this article, but, unless the person is previously discharged as provided in Section 875, the department shall, within the period ordered by the court pursuant to paragraph (2) of subdivision (e) after the date of that order in the case of persons committed by the juvenile court, or within the period ordered by the court pursuant to paragraph (2) of subdivision (e) after the date of that order in the case of persons committed after conviction in criminal proceedings, file a new application for continued detention in accordance with the provisions of this section if continued detention is deemed necessary.  These applications may be repeated at intervals as often as in the opinion of the department may be necessary for the protection of the public. Each person shall be discharged from the
						control of the probation department at the termination of the period stated in this section unless the probation department has filed a new application and the court has made a new order for continued detention as provided above in this section.
(2) The court may, in order to protect other persons in the custody of probation, refer the person for evaluation for civil commitment or to transfer the custody of any person over 25 years of age to county adult probation authorities for placement in an appropriate institution. A person shall be discharged from the control of the probation department at the termination of the period stated in this section unless the probation department has filed a new application described in paragraph (1) and the court has made a new order for continued detention as provided in this section.
(g) The criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2 of the Penal Code shall apply to all proceedings in this section.
(h) An order of the committing court made pursuant to this section is appealable by the person whose liberty is involved in the same manner as a judgment in a criminal case.  The appellate court may affirm the order of the lower court, or modify it, or reverse it and order the appellant to be discharged. Pending appeal, the appellant shall remain under the control of the probation department.
SEC. 2.
To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.