BILL ANALYSIS Ó
SB 1281
Page A
Date of Hearing: June 12, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1281 (Blakeslee) - As Amended: April 24, 2012
SUMMARY : Requires that where a psychiatrist or psychologist
evaluates a defendant for purposes of a plea of not guilty by
reason of insanity (NGI), the evaluation report shall include
the following: a defendant's substance abuse history, his or
her substance use history on the day of the commission of the
offense, a review of the police report of the offense, and any
other credible and relevant material reasonably necessary to
describe the facts of the offense.
EXISTING LAW :
1)States "It is fundamental Ýjustice] that a person cannot be
convicted for acts performed while insane. This Ýis part of
the] . . . fundamental principle that wrongful intent is an
essential element of crime?". ÝPeople v. Skinner (1985) 39
Cal.3d 765, 771-784.]
2)Provides "In any criminal Ýor juvenile delinquency] proceeding
. . . Ýthe] defense Ýof not guilty by reason of insanity]
shall be found . . . only when the accused person proves by a
preponderance of the evidence that he or she was incapable of
knowing or understanding the nature and quality of his or her
act and of distinguishing right from wrong at the time of the
commission of the offense."<1> ÝPenal Code Section 25(b).]
3)Provides that Penal Code Section 25 must be read in the
alternative to be constitutional. That is, a defendant was
insane if he or she was either 1. incapable of knowing or
understanding the nature and quality of the act, or 2.
incapable of distinguishing right from wrong at the time of
the offense. (People v. Skinner, supra, 39 Cal.3d 765,
771-784.)
---------------------------
<1> This test of insanity - typically called the" M'Naghten
Standard" - was developed in England in 1843.
SB 1281
Page B
4)Provides the following concerning voluntary intoxication:
ÝPenal Code Section 22(a)-(c).]
a) Voluntary intoxication is not a defense to a crime; but
b) Voluntary intoxication is admissible on whether a
defendant formed the criminal element of specific intent;
and,
c) In a murder prosecution, voluntary intoxication is
admissible on the issue of whether the defendant
premeditated, deliberated or harbored express malice.
5)Provides that a finding of not guilty by reason of insanity
shall not be found "solely on the basis of a personality or
adjustment disorder, a seizure disorder, or an addiction to,
or abuse of, intoxicating substances." ÝPenal Code Section
25.5.]
6)Provides that where a defendant pleads not guilty by reason of
insanity, the court must appoint at least two, and may appoint
three, psychiatrists or psychologists, to evaluate the
defendant. An appointed psychologist must have a doctorate
and at least five years of experience in the diagnosis and
treatment of mental or emotional disorders. ÝPenal Code
Section 1027(a).]
7)Provides that the report of the experts shall include, but not
be limited to, the following: ÝPenal Code Section 1027(b).]
a) The psychological history of the defendant;
b) The facts surrounding the charged offense; and
c) The present psychiatric or psychological symptoms of the
defendant, if any.
8)Provides that either party in an NGI trial may present expert
evidence as to the mental status of the defendant at the time
of the charged offense. ÝPenal Code Section 1027(c) and (d).]
9)Provides that where a defendant pleads not guilty and NGI, the
case shall be tried as though the defendant has pleaded only
not guilty. If the jury or court finds the defendant guilty,
SB 1281
Page C
the issue of whether the defendant was insane at the time of
the charged offense shall be promptly tried. ÝPenal Code
Section 1026(a).]
10)Provides that where a defendant pleads only NGI, the issue of
the defendant's sanity alone shall be promptly tried. ÝPenal
Code Section 1026(a).]
11)Provides that where the defendant is found to have been sane
at the time of the charged offense, the court shall sentence
the defendant according to the law. ÝPenal Code Section
1026(a).]
12)Provides that the court can dismiss a plea of NGI where the
defendant fails to present sufficient evidence from which a
jury could determine whether or not the defendant was insane
at the time of the offense. ÝPeople v. Ceja (2006) 106
Cal.App.4th 1071, 1089.]
13)Provides that where the defendant was found to be insane at
the time of the offense, the court, unless it determines that
the defendant's sanity has been fully recovered, shall direct
that the defendant be confined in the state hospital or
private facility, as specified. The court may also place the
defendant on outpatient status. ÝPenal Code Section 1026(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The patient
population in state hospitals had dramatically changed over
the past two decades. In the mid-1990's, 80 percent of the
patients were civil commitments, and only 20 percent of
patients had committed a crime. Today, the numbers have
switched with 90 percent of patients having committed a crime.
The result has been a stark increase in violence within the
state hospital system. The situation was sadly epitomized
with the assault and death of Donna Gross, a psychiatric
technician at Napa State Hospital who was murdered by Jess
Willard Massey who has been committed on the basis of not
guilty by reason of insanity.
"Assaults on staff are increasingly common. Attacks on staff
in the second quarter of 2010 doubled to about 200 compared
SB 1281
Page D
with the same period of 2009, and patient assaults against one
another increased almost six-fold to 692. In February 2012,
there were five assaults on staff just at Atascadero State
Hospital. Our state hospitals were designed to be centers for
rehabilitation and the treatment of mental health disorder.
The rise assaults has violently disrupted the therapy
environment and hindered the delivery of care that patients
need and deserve.
"SB 1281 seeks to improve the safety of our state hospitals
for both staff and fellow patients by preventing malingering
individuals from transferring to a mental health facility in
the first place. The State of California and UC Davis
partnered on a study of NGRI patients committed to Napa State
Hospital. The study results highlight a disturbing trend in
the evaluations conducted on behalf of the court and used to
inform juries regarding the sanity of defendants. In almost
half of the cases (44%), the court appointed evaluator failed
to prepare the report consistent and pursuant state standards.
Two-thirds of the time (66%) the evaluator failed to consider
drug or alcohol use at the time of the offense.
"The study findings indicate that a substantial number NGRI
acquittees may have inappropriately received a NGRI finding
based on lack of an adequate evaluation and faulty application
of the California insanity statute by court examiners. This
implies that the increased violence at our state hospital may
be attributed to sane and competent criminally violent
individuals, which puts patients seeking mental health
treatment and the staff that serve them in harm's way. SB
1281 represents a significant step in protecting patients and
staff from violent individuals who should never have been
committed to a state hospital in the first place.
"At a time in which employee morale is low and fear is high at
our state hospitals, SB 1281 represents an opportunity for the
Legislature and the Administration to take a significant step
in improving the work environment for treatment providers who
are currently responsible for managing individuals
inappropriately committed. The true cost of these
inappropriate commitments is borne by the staff and fellow
patients who carry the bruises, broken bones, and scars -
sometimes to their grave - from assaults that occur because of
these procedural mistakes."
SB 1281
Page E
2)Insanity Defense : A person cannot be convicted of a crime if
he or she was insane at the time of the charged offense. A
person who is not guilty by reason of insanity (NGI) cannot be
punished, but shall be given mental health treatment. The
determination of an insanity issue is largely based on expert
psychiatric evaluations and testimony. (Penal Code Sections
1026 - 1026.6, 1601 et seq.)
California follows the M'Naghten test of insanity. Under the
M'Naghten test, a person was insane at the time of the charged
offense if he or she, because of a mental disease or disorder,
did not understand the nature and quality of the act or did
not know the act was wrong. (Witkin and Epstein, 1 Cal. Crim.
Law, Defenses, Section 12.) The M'Naghten standard or test
was developed in England in 1843. The test was followed in
California until 1978 when a model test - the American Law
Institute (ALI) test - was adopted. Under the ALI test, a
person was insane at the time of the commission of an offense
if he or she, because of a mental disease or defect, lacked
"substantial capacity" to either appreciate the wrongfulness
of his or her conduct or to conform his or her conduct to the
requirements of the law.
The court in People v. Drew (1978) 22 Cal.3d 333 found that
the M'Naghten test was outmoded and replaced it with the ALI
test. The Drew court accepted criticism that the M'Naghten
test only considered the defendant's cognitive ability to
understand the nature or the wrongfulness of his or conduct.
The Drew court found that insanity - lack of criminal
responsibility - should be found where the defendant "may have
understood his action, but was incapable of controlling his
behavior." (Id. at 341.)
Proposition 8 in 1982 reinstated the M'Naghten test for
insanity in California. The proposition included a number of
sweeping changes to California criminal law, including
specific abolishment of the defense of diminished capacity.
(Penal Code Section 25.)
3)Defense of Intoxication with Insanity : Penal Code Section
25.5 provides that the defense of not guilty by reason of
insanity "shall not be found by the trier of fact solely on
the basis of a personality or adjustment disorder, a seizure
disorder, or an addiction to, or abuse of, intoxicating
substances." (Italics added.) Penal Code Section 25.5 thus
SB 1281
Page F
allows a defendant to present evidence that his use abuse of
drugs contributed to his or her insanity, as long as other
causes or factors supported a verdict of NGI.
There are few appellate cases interpreting and applying Penal
Code Section 25.5. That may be partly explained by the fact
that the prosecution cannot appeal a verdict that a defendant
is not guilty by reason of insanity. (Penal Code Section
1238.) An appeal of a not-guilty verdict would violate the
constitutional ban on double jeopardy. Two cases that have
applied Section 25.5 are discussed below:
The court in People v. Cabonce ( 2009) 169 Cal.App.4th 1421,
1433-1434 stated the rule:
Section 25 Ýestablishes] an absolute bar Ýto] use of
one's voluntary ingestion of intoxicants as the sole
basis for an insanity defense, regardless whether the
substances caused organic damage or a settled mental
defect or disorder which persists after the immediate
effects of the intoxicant have worn off. Thus, there
can be no insanity defense when the inability to tell
right from wrong derived (1) solely from an addiction
or abuse of intoxicating substances, or (2) from a
mental defect or disorder that itself was caused
solely by such addiction or abuse. (Citations and
internal quotes omitted; italics in original.)
The court in People v. Robinson (1999 ) 72 Cal.App.4th 421
held that a trial court should not instruct the jury that
intoxication or drug use cannot be the sole basis for an
NGI verdict if the defendant did not solely rely on
intoxication or drug abuse as establishing his or her
insanity. The court explained:
ÝIt is error to Ýinstruct] the jury on abstract
principles of law not pertinent to the issues in the
case. . . . Defendant did not present any evidence
showing that his alleged insanity arose solely from
his ingestion of intoxicants and he did not rely on
this defense below. . . . ÝThe experts] based their
opinion of insanity on numerous factors. Neither
expert relied exclusively on defendant's drug
addiction. . . . The People did not argue that
defendant should not be found insane because his
SB 1281
Page G
insanity was caused by use of intoxicants. . . .
Hence, section 25.5 is inapplicable to the instant
case and instruction thereon should have been refused
for this reason. (Id. at p. 428.)
4)Report on Court Appointed Experts in NGI Cases : According to
the author, this bill is largely based on a study and report
by Dr. Charles L. Scott, M.D., Chief of the Division of
Psychiatry and the Law at the UC Davis Health System. The
report, "An Archival Review of Substance Abuse Use in Not
Guilty by Reason of Insanity Acquittees," was published in
2005. (Hereinafter, "NGI Study.")
From 1997 through 2002, Scott, working as a consultant at Napa
State Hospital, found a number of cases in which the patient
did not appear to meet the criteria for being found NGI. In
particular, some patients had been intoxicated during the
crime but appeared to not have a mental illness. In other
cases, it appeared that the defendants had predatory or
larcenous motives. Scott and his team focused on whether or
not the appointed experts had competently prepared the reports
and complied with the law. (NGI Study, pp. 2-3.)
Scott's research team analyzed records in 458 cases, with a
total of 930 individual reports. The reports were written by
psychiatrists (57%) and psychologists (39%). (NGI Study, pp.
3-4.) The material reviewed included the following:
Reports by court-appointed evaluators;
Police reports and witness statements;
Criminal records ("rap sheets");
Hospital records, and
Probation reports.
The reports were scored by reference to the following
subjects:
-----------------------------------------------------------------
|Subject or Issue in Report |Frequency of Inclusion or |
| |Discussion |
|--------------------------------+--------------------------------|
|Diagnosis |90% of examiners recorded a |
| |diagnosis |
|--------------------------------+--------------------------------|
|Police reports |66% reviewed the police report |
SB 1281
Page H
| | |
|--------------------------------+--------------------------------|
|Prior drug use |76% noted drug use history |
| | |
|--------------------------------+--------------------------------|
|Drug use at the time of the |33% noted whether drug use (or |
|crime |lack of use) on day of incident |
| |noted |
| | |
|--------------------------------+--------------------------------|
|Application of correct legal |56% used the correct |
|standard. |standard/statute; 44% used |
| |wrong legal standard, an |
| |incomplete standard, or no |
| |standard |
-----------------------------------------------------------------
SB 1281
Page I
Detail on Use of Correct Legal Standard in Report
-----------------------------------------------------------------
|Standard/Statute and |Frequency of Occurrence |
|Application | |
| | |
|--------------------------------+--------------------------------|
|Incorrect standard/statute |10% |
| | |
|--------------------------------+--------------------------------|
|No standard of statute |11% |
|specified | |
| | |
|--------------------------------+--------------------------------|
|Standard misapplied or altered |12% |
| | |
|--------------------------------+--------------------------------|
| Correctly application of only |7% |
|one "prong" of alternative | |
|insanity standard. 1) | |
|Defendant did not understand | |
|the nature of the act. 2) | |
|Defendant could not distinguish | |
|right from wrong | |
| | |
|--------------------------------+--------------------------------|
|Correct application of both |56% |
|alternative prongs of the | |
|standard | |
| | |
-----------------------------------------------------------------
The report also concluded that about 41% of the defendants may
have acted with criminal intent - such as theft to buy drugs,
revenge, anger or retribution. While these defendants may
have been suffering from a mental illness, it appeared that
they understood their actions and were able to distinguish
between right and wrong. The defendants thus did not act from
a "psychotic motive" that would establish insanity. ( NGI
Study, pp. 4-6.)
1)Argument in Support : According to the California Statewide
Law Enforcement Association , "SB 1281 requires the
court-appointed experts in cases involving such a plea to
document the person's substance abuse history, his/her
SB 1281
Page J
substance use the day of the commission of the crime and a
review of the police report in their report to the courts.
"As the state hospital system has evolved to facilities
serving extremely large numbers of forensic persons, the
system has become increasingly unsafe for both occupants and
staff. By insuring that all relevant information is
considered, SB 1281 would improve public safety of the
facilities."
2)Argument in Opposition : According to the California Attorneys
for Criminal Justice , "The professional standards for
preparation of a forensic report on the issue of the
defendant's sanity require the expert to review records and
reports concerning the crime, the history of mental illness
and treatment (including addiction and drug use), and to seek
independent verification where possible of the defendant's
report of his/her perceptions, mental state and behavior.
Medical records, school records, and employment history as
well as interviews with the defendant's family and associates
will be considered when they are available.
"However, consideration of this material does not make it
appropriate to require a report by the doctor to include a
'review of the police report' and other materials 'necessary
to describe the facts of the offense.' The police report
speaks for itself, and is available to the prosecution, the
defense and court. The focus of the report is on the
defendant's mental state, not on describing the offense -
especially since the doctor has no personal knowledge of the
offense, but relies on the police report, other witness
reports or information, and the description by the accused, if
any. It is up to the jury to decide the 'facts of the
offense' not the expert."
3)Related Legislation : AB 366 (Allen), Statutes of 2011,
Chapter 654, modified the process by which individuals who are
declared incompetent to stand trial can be involuntarily
medicated.
REGISTERED SUPPORT / OPPOSITION :
Support
California Statewide Law Enforcement Association
SB 1281
Page K
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744