California Legislature—2013–14 Regular Session

Assembly BillNo. 2190


Introduced by Assembly Member Maienschein

February 20, 2014


An act to amend Sections 1601, 1602, and 1603 of the Penal Code, and to amend Section 5354 of the Welfare and Institutions Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

AB 2190, as introduced, Maienschein. Criminal defendants: gravely disabled persons.

(1) Existing law prohibits outpatient status for a person who is charged with and found incompetent on a charge of, convicted of, or found not guilty by reason of insanity of certain crimes, including, but not limited to, murder, mayhem, aggravated mayhem, or any felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person, until the person has actually been confined in a state hospital or other treatment facility for at least 180 days.

Existing law permits outpatient status, without first being confined in a state hospital or other treatment facility, for a person charged with, and found incompetent on a charge of, or convicted of, any misdemeanor or any felony other than those described above, or found not guilty of any misdemeanor by reason of insanity, if specified conditions are met.

This bill would exempt from this 180-day prohibition cases where the court finds a suitable placement, including, but not limited to, an outpatient placement program, that would provide the person with more appropriate mental health treatment and the court finds that the placement would not pose a danger to the health or safety of others.

(2) Existing law establishes other conditions under which these persons are eligible for outpatient status, including, but not limited to, that both the director of the treatment facility and the community program director advise the court that the person no longer poses a danger and would benefit from outpatient status.

This bill would remove these conditions and would, instead, require that the court consider whether those advisements had been made, and would make conforming changes.

(3) Existing law, the Lanterman-Pertis-Short Act, authorizes the appointment of a conservatorship for a person who is gravely disabled as a result of mental disorder or impairment by chronic alcoholism. Existing law requires the officer providing the conservatorship investigation to investigate all available alternatives to conservatorship and to recommend conservatorship to the court only if no suitable alternatives are available, and to render a written report to the court. Existing law authorizes a court to order a person alleged, as a result of mental disorder, to be a danger to others, or to himself or herself, or to be gravely disabled, to be given an evaluation of his or her condition.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would, when a court with jurisdiction over a person in a criminal case orders an evaluation of the person’s mental condition, require the officer providing the conservatorship investigation to serve a copy of the report on the defendant or the defendant’s counsel.

The bill would require the investigating officer, upon request of the defendant or the defendant’s counsel, to submit a copy of the report to the court hearing the criminal case, the district attorney, and the county probation department. The bill would require that the conservatorship investigation report and the information contained therein be kept confidential and not be further disclosed to anyone without the prior written consent of the defendant. The bill would, with certain exceptions, require that after disposition of the criminal case, the court place all copies of the report in a sealed file. By increasing the duties of local officials, this bill would impose a state-mandated local program.

This bill would make legislative findings to the effect that any limitation on the public’s right of access to the report is outweighed by the need to protect the privacy interests of the proposed conservatee and to prevent the chilling effect that would result from disclosure.

(4) 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 1601 of the Penal Code is amended to
2read:

3

1601.  

(a) In the case of any person charged with and found
4incompetent on a charge of, convicted of, or found not guilty by
5reason of insanity of murder, mayhem, aggravated mayhem, a
6violation of Section 207, 209, or 209.5 in which the victim suffers
7intentionally inflicted great bodily injury, robbery or carjacking
8with a deadly or dangerous weapon or in which the victim suffers
9great bodily injury, a violation of subdivision (a) or (b) of Section
10451, a violation of paragraph (2), (3), or (6) of subdivision (a) of
11Section 261, a violation of paragraph (1) or (4) of subdivision (a)
12of Section 262, a violation of Section 459 in the first degree, a
13violation of Section 220 in which the victim suffers great bodily
14injury, a violation of Section 288, a violation of Section 18715,
1518725, 18740, 18745, 18750, or 18755, or any felony involving
16death, great bodily injury, or an act which poses a serious threat
17of bodily harm to another person, outpatient status under this title
18shall not be available until that person has actually been confined
19in a state hospital or other treatment facility for 180 days or more
20after having been committed under the provisions of law specified
21in Section 1600begin insert, unless the court finds a suitable placement,
22including, but not limited to, an outpatient placement program,
23that would provide the person with more appropriate mental health
24treatment and the court finds that the placement would not pose
25a danger to the health or safety of others, including, but not limited
26to, the safety of the victim and the victim’s familyend insert
.

P4    1(b) In the case of any person charged with, and found
2incompetent on a charge of, or convicted of, any misdemeanor or
3 any felony other than those described in subdivision (a), or found
4not guilty of any misdemeanor by reason of insanity, outpatient
5status under this title may be granted by the court prior to actual
6confinement in a state hospital or other treatment facility under
7the provisions of law specified in Section 1600.

8

SEC. 2.  

Section 1602 of the Penal Code is amended to read:

9

1602.  

(a) begin deleteAny end deletebegin insertBefore any end insertperson subject to the provisions of
10subdivision (b) of Section 1601 may be placed on outpatientbegin delete status,
11if all of the following conditions are satisfied:end delete
begin insert status, the court
12shall consider all of the following criteria:end insert

13(1) In the case of a person who is an inpatient,begin insert whetherend insert the
14director of the state hospital or other treatment facility to which
15the person has been committed advises the court that the defendant
16will not be a danger to the health and safety of others while on
17outpatient status, and will benefit from such outpatient status.

18(2) In all cases,begin insert whetherend insert the community program director or a
19designee advises the court that the defendant will not be a danger
20to the health and safety of others while on outpatient status, will
21benefit from such status, and identifies an appropriate program of
22supervision and treatment.

begin delete

23(3) After

end delete

24begin insert(b)end insertbegin insertend insertbegin insertPrior to determining whether to place the person on
25outpatient status, the court shall provideend insert
actual notice to the
26prosecutor and defense counsel,begin insert and to the victim,end insert andbegin delete afterend deletebegin insert shall
27holdend insert
a hearingbegin delete in court,end deletebegin insert at whichend insert the courtbegin insert mayend insert specifically
28begin delete approves the recommendation and plan forend deletebegin insert orderend insert outpatient status
29begin insert for the personend insert.

begin delete

30(b)

end delete

31begin insert(c)end insert The community program director or a designee shall prepare
32and submit the evaluation and the treatment plan specified in
33paragraph (2) of subdivision (a) to the court within 15 calendar
34days after notification by the court to do so, except that in the case
35of a person who is an inpatient, the evaluation and treatment plan
36shall be submitted within 30 calendar days after notification by
37the court to do so.

begin delete

38(c)

end delete

39begin insert(d)end insert Any evaluations and recommendations pursuant to
40paragraphs (1) and (2) of subdivision (a) shall include review and
P5    1consideration of complete, available information regarding the
2circumstances of the criminal offense and the person’s prior
3criminal history.

4

SEC. 3.  

Section 1603 of the Penal Code is amended to read:

5

1603.  

(a) begin deleteAny end deletebegin insertBefore anyend insert person subject to subdivision (a) of
6Section 1601 may be placed on outpatient statusbegin delete if all of the
7following conditions are satisfied:end delete
begin insert the court shall consider all of
8the following criteria:end insert

9(1) begin deleteThe end deletebegin insertWhether theend insert director of the state hospital or other
10treatment facility to which the person has been committed advises
11the committing court and the prosecutor that the defendant would
12no longer be a danger to the health and safety of others, including
13himself or herself, while under supervision and treatment in the
14community, and will benefit from that status.

15(2) begin deleteThe end deletebegin insertWhether theend insert community program director advises the
16court that the defendant will benefit from that status, and identifies
17an appropriate program of supervision and treatment.

begin delete

18(3) The

end delete

19begin insert(b)end insertbegin insertend insertbegin insert(1)end insertbegin insertend insertbegin insertPrior to release of a person under subdivision (a), theend insert
20 prosecutor shall provide notice of the hearing date and pending
21release to the victim or next of kin of the victim of the offense for
22which the person was committed where a request for the notice
23has been filed with the court, and after a hearing in court, the court
24begin insert shallend insert specificallybegin delete approvesend deletebegin insert approveend insert the recommendation and plan
25for outpatient status pursuant to Section 1604. The burden shall
26be on the victim or next of kin to the victim to keep the court
27 apprised of the party’s current mailing address.

begin delete

28 In

end delete

29begin insert(2)end insertbegin insertend insertbegin insertInend insert any case in which the victim or next of kin to the victim
30has filed a request for notice with the director of the state hospital
31or other treatment facility, he or she shall be notified by the director
32at the inception of any program in which the committed person
33would be allowed any type of day release unattended by the staff
34of the facility.

begin delete

35(b)

end delete

36begin insert(c)end insert The community program director shall prepare and submit
37the evaluation and the treatment plan specified in paragraph (2)
38of subdivision (a) to the court within 30 calendar days after
39notification by the court to do so.

begin delete

40(c)

end delete

P6    1begin insert(d)end insert Any evaluations and recommendations pursuant to
2paragraphs (1) and (2) of subdivision (a) shall include review and
3consideration of complete, available information regarding the
4circumstances of the criminal offense and the person’s prior
5criminal history.

6

SEC. 4.  

Section 5354 of the Welfare and Institutions Code is
7amended to read:

8

5354.  

begin insert(a)end insertbegin insertend insert The officer providing conservatorship investigation
9shall investigate all available alternatives to conservatorship and
10shall recommend conservatorship to the court only if no suitable
11alternatives are available. This officer shall render to the court a
12written report of investigation prior to the hearing. The report to
13the court shall be comprehensive and shall contain all relevant
14aspects of the person’s medical, psychological, financial, family,
15vocational and social condition, and information obtained from
16the person’s family members, close friends, social worker or
17 principal therapist. The report shall also contain all available
18information concerning the person’s real and personal property.
19The facilities providing intensive treatment or comprehensive
20evaluation shall disclose any records or information which may
21facilitate the investigation. If the officer providing conservatorship
22investigation recommends against conservatorship, he or she shall
23set forth all alternatives available. A copy of the report shall be
24transmitted to the individual who originally recommended
25conservatorship, to the person or agency, if any, recommended to
26serve as conservator, and to the person recommended for
27conservatorship. The court may receive the report in evidence and
28may read and consider the contents thereof in rendering its
29judgment.

begin insert

30(b) Notwithstanding Section 5328, when a court with jurisdiction
31over a person in a criminal case orders an evaluation of the
32person’s mental condition pursuant to Section 5200, the officer
33providing the conservatorship investigation shall serve a copy of
34the report required under subdivision (a) upon the defendant or
35the defendant’s counsel. Upon request of the defendant or the
36defendant’s counsel, the officer providing the conservatorship
37investigation shall also submit a copy of the report to the court
38hearing the criminal case, the district attorney, and the county
39probation department. The conservatorship investigation report
40and the information contained in that report, shall be kept
P7    1confidential and shall not be further disclosed to anyone without
2the prior written consent of the defendant. After disposition of the
3criminal case, the court shall place all copies of the report in a
4sealed file, except as follows:

end insert
begin insert

5(1) The defendant and the defendant’s counsel may retain their
6copy.

end insert
begin insert

7(2) If the defendant is placed on probation status, the county
8probation department may retain a copy of the report for the
9purpose of supervision of the defendant until the probation is
10terminated, at which time the probation department shall return
11its copy of the report to the court for placement into the sealed
12file.

end insert
13

SEC. 5.  

Pursuant to paragraph (2) of subdivision (b) of Section
143 of Article I of the California Constitution, the Legislature finds
15and declares all of the following:

16(a) Any limitations to public access to conservator investigation
17reports pursuant to subdivision (b) of Section 5354 of the Welfare
18and Institutions Code as proposed by this act are necessary to
19protect the privacy rights of the proposed conservatee pursuant to
20Section 1 of Article I of the California Constitution.

21(b) The interests in protecting the privacy rights of the proposed
22conservatee in this situation strongly outweigh the public interest
23in having access to personally identifiable information about the
24 person and his or her need for and access to mental health services.
25Moreover, protection of the person’s privacy right is necessary to
26prevent the chilling effect on access to needed mental health
27services that would occur if the information were to be made
28public.

29

SEC. 6.  

If the Commission on State Mandates determines that
30this act contains costs mandated by the state, reimbursement to
31local agencies and school districts for those costs shall be made
32pursuant to Part 7 (commencing with Section 17500) of Division
334 of Title 2 of the Government Code.



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