BILL ANALYSIS Ó
AB 1340
Page 1
Date of Hearing: April 30, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1340 (Achadjian) - As Amended: April 10, 2013
SUMMARY : Mandates each state hospital, beginning July 1, 2015,
to establish and maintain an enhanced treatment unit (ETU) as
part of its facilities. Specifically, this bill :
1)Requires the hospital administrator of each state hospital to
establish procedures to provide an increased level of security
for the ETU.
2)States that any case of assault by a patient of a state
hospital that causes injury to or illness of, or has the
potential to cause future illness of, a state hospital
employee or another patient of the state hospital rising to
the level of a misdemeanor or felony shall be immediately
referred to the local district attorney.
3)Provides, if after referral to the local district attorney,
the patient is found guilty of misdemeanor or felony assault,
the local attorney declines prosecution, the patient is found
to be incompetent to stand trial (IST), or the patient is
found not guilty by reason of insanity (NGI), the patient
shall be placed in the ETU of the state hospital until the
patient is deemed safe to return to the regular population of
the hospital.
4)Specifies that the provisions of this bill shall become
operative on July 1, 2015.
EXISTING LAW :
1)Establishes within the California Health and Human Services
Agency a State Department of State Hospitals (DSH). [Welfare
and Institutions Code (WIC) Section 4000.]
2)States that the primary purpose of a state hospital is the
medical and nursing care of patients who are mentally
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disordered and that the efforts and direction of the officers
and employees of each state hospital shall be directed to this
end. (WIC Section 4304.)
3)Provides that a person who was insane when he or she committed
a crime is NGI. One is insane if he or she does not
understand the nature of the charged act, or does not
understand the difference between right and wrong. [Penal
Code Sections 25(b) and 1026.]
4)Requires a court to direct a person found to be NGI to the
state hospital, a public or private treatment facility, or on
outpatient status, unless it appears to the court that the
sanity of the defendant has been fully restored. [Penal Code
Section 1026(a).]
5)Provides that a mentally disordered prisoner who is committed
to a mental health facility after a finding of NGI and escapes
is guilty of an alternate misdemeanor/felony, punishable by up
to one year in the county jail or one year and one day in
state prison. (Penal Code Sections 1026.4.)
6)States that a person is IST where the person, as a result of a
mental disorder or developmental disability is unable to
understand the nature of the proceedings or unable to
rationally assist counsel in the presentation of a defense.
[Penal Code Section 1367(a).]
7)Requires the court to order that an IST defendant be placed in
a state hospital, a public or private treatment facility, or
on outpatient status. (Penal Code Section 1370.)
8)Mandates that criminal defendants who are found to be IST and
escape from a mental health facility is guilty of an
alternate misdemeanor/felony, punishable by up to one year in
the county jail or one year and one day in state prison.
(Penal Code Section 1370.5.)
9)Provides that a prisoner found to be a mentally disordered
offender (MDO) can be required to receive mental treatment in
a state hospital as a condition of parole and may annually be
civilly confined after his or her parole expires. (Penal Code
Section 2960 et seq.)
10)Allows prisoners found to be sexually violent predators
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(SVPs) to be civilly confined based on a judicial commitment.
A "SVP" is defined as a person who has been convicted of a
sexually violent offense, as specified, against one or more
victims; and who has a diagnosable 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. (WIC Sections 6600 to 6608.)
11)States that persons who, by reason of mental disorders, are
"dangerous to others or to themselves or who are gravely
disabled" may be involuntarily held for 72 hours, and then
held and treated for 14, 30, and 180 days following judicial
hearings at each step. (WIC Code Section 5000 et seq.)
12)Defines an "assault" as an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of
another, and makes the general crime of assault punishable by
a fine not exceeding $1,000, or by imprisonment in the county
jail for not more than six months, or both the fine and
imprisonment. [Penal Code Sections 240 and 241(a).]
13)Provides that any person who commits an assault upon the
person of another by any means of force likely to produce
great bodily injury shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine not exceeding
$10,000, or by both the fine and imprisonment. [Penal Code
Section 245(a)(4).]
14)Defines "battery" as any willful and unlawful use of force or
violence upon the person of another, and makes the general
crime of battery punishable by a fine not exceeding $2,000 or
by imprisonment in the county jail not exceeding six months,
or by both the fine and imprisonment. [Penal Code Sections
242 and 243(a).]
15)States that every person confined in a local detention
facility who commits gassing of a peace officer or employee of
the prison or facility is guilty of aggravated battery,
punishable by imprisonment in a county jail for up to six
month or by imprisonment in the state prison for two, three,
or four years. (Penal Code Section 243.9.)
16)Defines "gassing" as intentionally placing or throwing, or
causing to be placed or thrown, upon another person any human
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excrement, bodily fluids or bodily substances or any mixture
containing such fluids or substances that result in actual
contact with the person's skin or membranes. [Penal Code
Sections 243.9(b) and 4501.1(b).]
17)Requires a person in charge of the local detention facility
to use every available means to immediately investigate all
reported or suspected batteries by gassing, including, but not
limited to, the use of forensically acceptable means of
preserving and testing the suspected gassing substance to
confirm the presence of human excrement or other bodily fluids
or bodily substances. If there is probable cause to believe
that the inmate has committed battery by gassing, the chief
medical officer of the local detention facility, or his or her
designee, may, when he or she deems it medically necessary to
protect the health of an officer or employee who may have been
subject to a violation of this section, order the inmate to
receive an examination or test for hepatitis or tuberculosis
or both hepatitis and tuberculosis on either a voluntary or
involuntary basis immediately after the event, and
periodically thereafter as determined to be necessary by the
medical officer in order to ensure that further hepatitis or
tuberculosis transmission does not occur. These decisions
shall be consistent with an occupational exposure as defined
by the Center for Disease Control and Prevention. The results
of any examination or test shall be provided to the officer or
employee who has been subject to a reported or suspected
violation of this section. [Penal Code Section 243.9(c).]
18)Requires a person in charge of the local detention facility
to refer all reports for which there is probable cause to
believe that the inmate has committed battery by gassing of a
facility employee to the local district attorney. [Penal Code
Section 243.9(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Assembly Bill
1340 is meant to provide an alternative mechanism to deal with
these types of violent offenders. By requiring that these
offenders be removed from the general population to receive
enhanced treatment, AB 1340 will help protect state hospital
staff and patients and help decrease the level of violence in
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our state hospitals."
2)Background : According to a 2012 report by the Legislative
Analyst's Office (LAO), "The state's five state
hospitals-Atascadero, Coalinga, Metropolitan, Napa, and
Patton-provide treatment to a combined patient population of
over 5,000. State hospitals treat patients under several
forensic commitment classifications, including Not Guilty by
Reason of Insanity, Incompetent to Stand Trial (IST), SVPs,
and Mentally Disordered Offenders. State hospitals also treat
mentally ill persons referred by the counties under civil
commitments. Additionally, two psychiatric programs located on
the grounds of state prisons at Vacaville and Salinas Valley
have a combined inmate patient population of less than 700."
[LAO, The 2012-13 Budget: Oversight and Accountability At
State Hospitals (March 1, 2012).]
a) NGI: The standard for finding a defendant NGI is if the
defendant is either incapable of knowing or understanding
the nature and quality of his or her act, or incapable of
distinguishing right from wrong. [Penal Code Section
25(b); People v. Skinner (1985) 1 Cal.4th 495, 532.] A
defendant must personally enter a plea of NGI; defense
counsel may not enter an NGI plea on behalf of his or her
client unless the defendant concurs in the plea in open
court. (Penal Code Section 1018.) A defendant found NGI
may be committed to a state hospital, a public or private
community facility, or in outpatient treatment. [Penal
Code Section 1026(a).] If the defendant is confined to a
state hospital, the medical director of the facility is
required to submit a report to the court in writing, in
six-month intervals, setting forth the status and progress
of the defendant. [Penal Code Section 1026(f).] A person
may be released from confinement in a state hospital upon
expiration of the maximum term of commitment; if his or her
sanity has been restored; or placed on outpatient treatment
on a conditional release program for one year. (Penal Code
Section 1026.1)
b) IST: When there is a doubt as to the defendant's sanity
and the defendant refuses to enter an NGI plea, defense
counsel may request a hearing to determine whether the
defendant is IST. [Penal Code Section 1368(b).] The court
may also order a hearing if during the pendency of the
criminal proceedings, a doubt arises in the mind of the
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judge as to the mental competence of the defendant. [Penal
Code Section 1368(a).] If the defendant is found mentally
incompetent, the criminal proceedings are suspended and the
defendant will be admitted to a state hospital, or other
appropriate treatment facility, for care and treatment
until mental competence is restored. [Penal Code Section
1370(a)(1)(B)(i).]
c) MDO: A MDO commitment is a post-prison civil commitment.
When the inmate is about to complete his or her prison
term, an administrative determination is made as to whether
the inmate is an MDO. The following criteria must be
proven for initial MDO certification: (1) the inmate has a
severe mental disorder; (2) the inmate used force or
violence in committing the underlying offense; (3) the
severe mental disorder was one of the causes or an
aggravating factor in the commission of the offense; (4)
the disorder is not in remission or capable of being kept
in remission without treatment; (5) the inmate was treated
for the disorder for at least 90 days in the year before
the inmate's release; and (6) by reason of the severe
mental disorder, the inmate poses a serious threat of
physical harm to others. [Penal Code Section 2962(a)-(d).]
If the inmate is determined to be a MDO, rather than
release the inmate to the community, the California
Department of Corrections and Rehabilitation paroles the
inmate to the supervision of the state hospital, and the
individual remains under hospital supervision throughout
the parole period. A MDO commitment is for one year;
however, the commitment can be extended. [Penal Code
Section 2972(c).] When the individual is due to be
released from parole, the state can petition to extend the
MDO commitment for another year. The state can file
successive petitions for further extensions (Penal Code
Section 2972), raising the prospect that, despite the
completion of a prison sentence, the MDO may be confined
for life.
d) SVP: A SVP commitment is a post-prison commitment
regimen. The commitment standard for a SVP requires a
person to have been convicted of a sexually violent offense
against one or more victims 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. [WIC Section
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6600(a)(1).] A "diagnosed mental disorder" is defined as 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."
[WIC Section 6600(c).] A person found to meet the criteria
of a SVP is committed to a state hospital for an
indeterminate term. (Penal Code Section 6604.) A person
committed as a SVP has the right to an annual review of his
or her mental condition. The burden of proof is on the
state to prove beyond a reasonable doubt that the
individual remains a SVP. [Penal Code Section 6605(d).]
DSH may also seek judicial review of the commitment at any
time it has reason to believe the person committed is no
longer a SVP. If the court finds that the person is no
longer a SVP, he or she is unconditionally released and
discharged. [Penal Code Section 6605(f).]
3)Practical Considerations : Under existing law, any person who
commits an assault or battery on any other person may face
criminal charges. Depending on the severity of the crime, the
person could be charged with a misdemeanor or felony.
Currently, when a crime occurs at a state hospital, the
hospital police investigate the matter and determine whether
to refer the matter to the local district attorney. While the
patient is awaiting criminal charges, the patient is taken to
the county jail. If the district attorney declines to
prosecute the person, he or she is returned to the state
hospital. If the district attorney decides to file criminal
charges, the patient would be taken to court for arraignment.
If the patient is a person who has been admitted to the state
hospital by a court after a finding of NGI or IST, the patient
would likely be found NGI or IST in the new criminal
proceedings with the result of returning the patient back to
the state hospital. Also, a MDO patient who is currently on
parole could also face new charges or face parole revocation
as a result of the new offense. Depending on how the criminal
proceedings are handled, the MDO patient would either be
returned to prison or placed back in the state hospital for
further treatment.
This bill requires every assault by a patient of a state
hospital arising to the level of a misdemeanor or felony to be
immediately referred to the local district attorney. It is
unclear from the language of the bill who would determine what
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acts constitute a misdemeanor or felony arising to the level
of a misdemeanor or a felony. Even if the district attorney
decides not to file criminal charges against the patient, the
patient would still be arrested and confined to a county jail
while awaiting arraignment. If the district attorney does
decide to file charges, the patient would again go through the
process of determining mental competency through evaluation by
experts and a trial, which could take months. This would
result in a disruption in the patient's treatment and lead to
the deterioration of the patient's current mental health, with
a high likelihood that the patient would be found incompetent
and returned to the state hospital.
4)Pilot Program : In December 2011, Department of Mental Health,
whose responsibilities have been transferred to DSH,
established an ETU pilot program in Atascadero State Hospital.
The intent of the pilot program was to treat the hospital's
most aggressive patients. "Twelve ASH patients will
participate in the program that will feature focused, longer
treatment with more staff attention in an attempt to lessen
their aggressive tendencies, according to the state. 'It will
be more personalized treatment, using different methods,
trying things that are a little more intensive and
personalized to see what they respond to,' said Kathy Gaither,
the state Department of Mental Health's acting chief deputy
director. Specifics on what types of methods could be used
were not disclosed." [Strickland, Aiding violent patients is
focus of new ASH unit, The Tribune
(as of Apr. 4, 2013).] The Department of Mental Health
stated if the pilot program is successful, the program would
be expanded to its other state hospitals.
This bill requires each state hospital to establish and maintain
an ETU as part of its facilities; however, the director of DSH
already has the discretion to implement the program within the
state hospitals. Is it good policy for the Legislature to
mandate each state hospital to establish an ETU and dictate
which patients should be placed in an ETU when the director of
DSH already has the discretion to implement such a program and
is in the best position to determine the treatment and
placement of patients?
5)The Use of Seclusion in State Hospitals : A patient in a state
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hospital has the right to be free from the use of seclusion
and behavioral restraints of any form imposed as a means of
coercion, discipline, convenience, or retaliation by staff.
[Health and Safety Code Section 1180.4(k).] According to the
DSH Web site, "seclusion" is defined as the involuntary
confinement of a patient alone in a room or an area from which
the patient is physically prevented from leaving. Seclusion
does not include a "time-out" wherein a patient agrees to
remain in an unlocked room or area and maintains the choice to
leave without fear of adverse consequences or of being placed
in seclusion or restraints. [ (as of
Apr. 24, 2013).] State and federal regulations governing the
use of seclusion in state hospitals provide that seclusion may
be used when other less restrictive interventions have been
ineffective. (42 Code of Federal Regulations Part 482; Health
and Safety Code Sections 1180 et seq.)
It is unclear whether a patient's placement in an ETU is
equivalent to seclusion and, if so, whether it is appropriate
to place patients in the ETU without a showing that other less
restrictive interventions have been ineffective and without
following other hospital policies that protect patients from
improper use of seclusion.
6)Argument in Support : The Service Employees International
Union (SEIU), Local 1000 , the sponsor of this bill, states
"This bill will significantly enhance worker, patient, and
public safety at the Department of State Hospitals
administered state hospitals. State hospitals were designed
to house and treat the state's mentally disordered offenders.
There has been a profound change in the composition of the
patient population since some of the first state hospitals,
including the Napa State Hospital, which was founded 137 years
ago. Data developed by the Bureau of Labor Statistics (BLS)
indicate that hospital workers are at high risk for violence
in the workplace. The BLS estimates that in a typical year,
2,637 nonfatal assaults are made on hospital workers in this
country, a rate of 8.3 assaults per 10,000 workers. State
hospitals have yet to fully evolve to reflect this new
reality. Facilities such as Napa State Hospital were
initially situated in park-like settings to care for mentally
ill patients who were wards of the state; today more than 90%
of all individuals being treated in the state system have been
forensically committed. In fact, fewer than 500 individuals
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in the entire system have been placed in a state hospital by
non-forensic means. This has resulted in a dramatic shift in
the population make-up at state hospitals. Psych technicians,
doctors, nurses, mental health experts and police officers at
state mental hospitals work with some of the state's most
dangerous offenders. Some of the patients in state hospital
are incredibly violent and criminal in nature. These patients
threaten the safety of hospital staff and other patients and
disrupt the state's efforts to provide the appropriate level
of care and treatment needed by other patients."
7)Argument in Opposition : Disability Rights California argues,
"There are a number of problems with the proposal to
automatically place individuals in enhanced treatment units,
including as follows:
a) "Behaviors due to an individual's disability may lead to
placement in jail or enhanced treatment units, where the
individual will receive little if any treatment.
b) "The term 'assault' under California Penal Code § 240
can cover a wide range of behaviors. For example, 'violent
injury' as would support a conviction for assault, can be
'the least touching,' and it includes any wrongful act
committed by means of physical force against the person of
another, even if the 'feelings' of a person are injured.
People v. Golde (App. 3 Dist. 2008) 77 Cal.Rptr.3d 120.
See also, People v. Hayes (App. 2 Dist. 2006) 47
Cal.Rptr.2d 280 (Assault does not require a specific intent
to cause injury or a subjective awareness of the risk that
an injury might occur; rather, assault only requires an
intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will
probably and directly result in the application of physical
force against another.)
"AB 1340 is silent about who determines whether an assault
occurs or what, if any, training will be provided staff to
make such a determination. Thus, even if a resident's
behavior is not an assault under the law and the district
attorney does not prosecute because of that - a resident will
still be sent to an enhanced treatment unit. We would contend
that assessment for mental health treatment is a better
solution, something this bill does not consider.
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"This bill has the potential to add to the already
overburdened case load of District Attorneys and court dockets
with proceedings that are unnecessary and result in the
individual being sent back to the state hospital. Disability
Rights California has seen this happen. For example, a state
hospital resident was charged with 'gassing' a correctional
officer by spitting on the officer. The resident was sent to
the local county jail and stayed there for a number of months
without any mental health treatment. When the resident
finally went before the criminal court, the court questioned
why the resident was even before the court and sent the
resident back to the state hospital. This resulted in the
resident going without important treatment for a number of
months. If AB 1340 passes, we expect this type of situation
to occur on a regular basis."
8)Prior Legislation :
a) SB 1470 (Leno), Chapter 24, Statutes of 2012,
established DSH and changed statutory references to
Department of Mental Health, which was eliminated under the
Budget Act of 2012, to DSH.
b) SB 2246 (Blakeslee), of the 2011-12 Legislative Session,
would have mandated the hospital director of a state
hospital to refer all documented gassing incidents, as
specified, to the district attorney for prosecution and
would have made every person confined to a state hospital
who commits gassing of any peace officer or employee of a
state hospital guilty of aggravated battery. SB 2246
failed passage in the Senate Committee on Public Safety.
c) AB 2246 (Blakeslee), of the 2009-10 Legislative Session,
would have made a person confined to a state hospital or
residing at a state-operated developmental center operated
by the Department of Developmental Services who commits
battery upon the person of a peace officer or employee of a
state hospital or state development center, by gassing,
guilty of aggravated battery. AB 2246 was held on the
Assembly Committee on Appropriations' Suspense File.
d) SB 130 (Chesbro), Chapter 750, Statutes of 2003, made a
number of changes to state law regarding the use of
seclusion and restraints in a variety of residential
facilities, including psychiatric hospitals, developmental
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centers, skilled nursing facilities and foster care group
homes.
e) SB 451 (Schiff), Chapter 41, Statutes of 2000, provides
that a SVP may be held in custody, pending completion of
the probable cause hearing. The probable cause hearing may
continue beyond the SVP's scheduled release date.
f) AB 995 (Pacheco), Chapter 591, Statutes of 1998,
provided that every person confined in the state prison who
commits a battery by gassing on any officer or employee is
guilty of aggravated battery, punishable by two, three or
four years in state prison.
g) AB 1783 (Bordonaro), of the 1997-98 Legislative Session,
made it a felony for any patient housed in a security
compound of a state hospital to commit a battery against,
and inflict an injury upon, the person of another. AB 1783
failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Service Employees International Union, Local 1000 (Sponsor)
California Association of Psychiatric Technicians (Co-Sponsor)
California Correctional Supervisors Organization
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Disability Rights California
Friends Committee on Legislation of California
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744