BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2190
                                                                  Page 1

          Date of Hearing:  April 22, 2014
          Counsel:       Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

              AB 2190 (Maienschein) - As Introduced:  February 20, 2014


           SUMMARY  :  Allows the court to place a person found to be  
          incompetent to stand trial (IST) or not guilty by reason of  
          insanity (NGI) on outpatient status without prior confinement  
          for a specified period within a mental health treatment  
          facility, as specified, and requires a conservatorship  
          investigator to submit a copy of his or her report, upon the  
          request of the defendant or his or her attorney, to specified  
          entities in a criminal case.  Specifically,  this bill  :

          1)Provides that outpatient status may be available to a person  
            who otherwise is required to be confined in a state hospital  
            or other treatment facility for 180 days or more for the  
            commission of a specified felony offense if 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, including the victim and his or her  
            family.

          2)Requires the court to consider all of the following criteria  
            before it may place any person who has been found IST or NGI  
            for a specified felony offense (listed in Existing Law #1) on  
            outpatient status:

             a)   Whether the state hospital director or other treatment  
               facility to which the person has been committed advises the  
               committing court and the prosecutor that the defendant  
               would no longer be a danger to the health and safety of  
               others, including himself or herself, while under  
               supervision and treatment in the community and the  
               defendant will benefit from that status; and,

             b)   Whether the community program director advises the court  
               that the defendant will benefit from that status and  








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               identifies an appropriate program of supervision and  
               treatment.

          3)Requires the prosecutor, before release of a person as  
            specified above, to provide notice of the hearing date and  
            pending release to the committing-offense victim (or his or  
            her next of kin) where a request for the notice has been filed  
            with the court.

          4)Requires the court to consider all of the following criteria  
            before it may place any person who has been found IST or NGI  
            for a misdemeanor or non-specified felony offense on  
            outpatient status:

             a)   In the case of a person who is an inpatient, whether the  
               state hospital director or other treatment facility to  
               which the person has been committed advises the court that  
               the defendant will not be a danger to the health and safety  
               of others while on outpatient status and that he or she  
               will benefit from such outpatient status; and,

             b)   In all cases, whether the community program director or  
               a designee advises the court that the defendant will not be  
               a danger to the health and safety of others while on  
               outpatient status, will benefit from such status, and  
               identifies an appropriate program of supervision and  
               treatment.

          5)Requires the court, prior to determining whether to place the  
            person on outpatient status, to provide actual notice to the  
            prosecutor, defense attorney, and victim and to hold a hearing  
            at which the court may specifically order outpatient status  
            for the person.

          6)Requires the officer providing a conservatorship  
            investigation, when a court with jurisdiction over a person in  
            a criminal case orders an evaluation of the person's mental  
            condition, as specified, to serve a copy of the report upon  
            the defendant or his or her attorney. Requires, upon request  
            of the defendant or his or her attorney, the officer providing  
            the conservatorship investigation to submit a copy of the  
            report to the court hearing the criminal case, the district  
            attorney, and the county probation department.

          7)Requires that the conservatorship investigation report, and  








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            the information contained in it, to be kept confidential and  
            not further disclosed to anyone without the prior written  
            consent of the defendant.

          8)Requires the court to place all copies of the report in a  
            sealed file after disposition of the criminal case, except  
            that the defendant and his or her attorney may retain their  
            copies and, if the defendant is placed on probation status,  
            the probation department may retain a copy for the purpose of  
            supervision until probation is terminated, at which time the  
            department is required to return its copy to the court for  
            placement in the sealed file.

          9)Makes legislative findings and declarations relative to a  
            conservatee's privacy rights.

           EXISTING LAW  : 

          1)Prohibits any person charged with and found incompetent on a  
            charge of, convicted of, or found NGI of the following  
            felonies from being released on outpatient status unless the  
            person has been confined in a state hospital or other  
            treatment facility for at least 180 days:

             a)   Murder;

             b)   Mayhem;

             c)   Aggravated mayhem;

             d)   Kidnapping, kidnapping for ransom, or kidnapping during  
               the commission of a carjacking and the victim suffered the   
               intentional infliction of great bodily harm (GBI);

             e)   Robbery or carjacking with a deadly or dangerous weapon  
               and the victim suffers GBI;

             f)   Arson that causes GBI or causes an inhabited structure  
               or property to burn;

             g)   Rape accomplished by means of force by giving the victim  
               an intoxicating, anesthetic substance or controlled  
               substance or retaliation has been threatened against the  
               victim, as specified;









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             h)   Rape of a spouse accomplished by means of force or  
               threat of retaliation;

             i)   Burglary in the first degree;

             j)   Assault with intent to commit mayhem, rape, sodomy, oral  
                copulation rape in concert with another, lascivious acts  
               upon a child, or penetration of genitals or anus with a  
               foreign object which result in GBI to the victim;

             aa)  Lewd and lascivious acts;

             bb)  Carrying or placing an explosive or destructive devise  
               on a passenger vessel, aircraft, car or other vehicle;

             cc)  Possession of an explosive or destructive devise in  
               public places such as a theatre, hall, college, church,  
               hotel, other public building or in, on, or near specified  
               public transportation;

             dd)  Wrongful possession of an explosive or destructive  
               devise with intent to injure or intimidate; or,

             ee)  Any felony involving death, GBI, or an act which poses a  
               serious threat of bodily injury to another person.  (Pen.  
               Code, § 1601, subd. (a).)

          2)Allows any person subject to the provision above to be placed  
            on outpatient status if all of the following conditions are  
            satisfied:

             a)   The director of the state hospital or other treatment  
               facility to which the person has been committed advises the  
               committing court and the prosecutor that the defendant  
               would no longer be a danger to the health and safety of  
               others, including himself or herself, while under  
               supervision and treatment in the community and will benefit  
               from that status;

             b)   The community program director advises the court that  
               the defendant will benefit from that status and identifies  
               an appropriate program of supervision and treatment; and, 

             c)   Requires the prosecutor to provide notice of the hearing  
               date and pending release to the committing-offense victim  








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               (or his or her next of kin) where a request for the notice  
               has been filed with the court, and after a hearing in  
               court, the court specifically approves the recommendation  
               and plan for outpatient status, as specified.  (Pen. Code,  
               § 1603.)

          3)Authorizes a court to grant outpatient status, prior to actual  
            confinement in a state hospital or other treatment facility,  
            to any person charged with and found incompetent on a charge  
            of, or convicted of, any misdemeanor or any non-specified  
            felony or found NGI of any misdemeanor.  (Pen. Code, § 1601,  
            subd. (b).)

          4)Allows any person subject to provision above to be placed on  
            outpatient status if all of the following conditions are  
            satisfied:

             a)   In the case of a person who is an inpatient, the  
               director of the state hospital or other treatment facility  
               to which the person has been committed advises the court  
               that the defendant will not be a danger to the health and  
               safety of others while on outpatient status and will  
               benefit from such outpatient status;

             b)   In all cases, the community program director or a  
               designee advises the court that the defendant will not be a  
               danger to the health and safety of others while on  
               outpatient status, will benefit from such status, and  
               identifies an appropriate program of supervision and  
               treatment; and,

             c)   After actual notice to the prosecutor and defense  
               attorney, and after a hearing in court, the court  
               specifically approves the recommendation and plan for  
               outpatient status.  (Pen. Code, § 1602, subd. (a).)

          5)Provides that any person alleged, as a result of mental  
            disorder, to be a danger to himself or others or to be gravely  
            disabled may be given an evaluation of his condition under a  
            superior court order, as specified.  Requires that the  
            evaluation be carried out with the utmost consideration for  
            the privacy and dignity of the person for whom a court-ordered  
            evaluation is requested.  (Welf. & Inst. Code, § 5200.)

          6)Provides that a conservator of the person, of the estate, or  








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            of the person and the estate may be appointed for any person  
            who is gravely disabled as a result of mental disorder or  
            impairment by chronic alcoholism.  (Welf. & Inst. Code, §  
            5350.)

          7)Requires the officer providing 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 set forth all  
            alternatives available if he or she recommends against  
            conservatorship.  Requires this officer, prior to the hearing,  
            to render to the court a comprehensive written report that  
            contains all relevant aspects of the person's medical,  
            psychological, financial, family, vocational and social  
            condition; information obtained from the person's family  
            members, close friends, social worker or principal therapist;  
            and all available information concerning the person's real and  
            personal property.  Requires the facilities providing  
            intensive treatment or comprehensive evaluation to disclose  
            any records or information that may facilitate the  
            investigation.  (Welf. & Inst. Code, § 5354.)

          8)Requires a copy of the officer's report to be transmitted to  
            the individual who originally recommended conservatorship, to  
            the person or agency, if any, recommended to serve as  
            conservator, and to the person recommended for  
            conservatorship. Allows the court that is determining  
            conservatorship to receive the report in evidence and to read  
            and consider its contents in rendering its judgment.  (Welf. &  
            Inst. Code, § 5354.)

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "By giving the  
            courts the option to place offenders with mental disorders in  
            an outpatient setting, offenders can be given the treatment  
            that is most appropriate for them. Not only does this give the  
            courts more tools to properly treat mentally disordered  
            offenders but there is substantial evidence for cost saving as  
            well. Also, by permitting defendants to authorize the release  
            of their conservatorship reports to criminal courts, we can  
            improve coordination and treatment efforts between  
            conservatorship courts and criminal courts."








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           2)Outpatient Status for Mentally Disordered &  
            Developmentally-Disabled Offenders  :  In 2008, then-California  
            Chief Justice George established the Task Force for Criminal  
            Justice Collaboration on Mental Health Issues, charging it  
            with crafting policy recommendations to improve the state's  
            responses to offenders with mental illness.  In its final  
            report, the task force stated, "Courts, in collaboration with  
            state hospitals and local mental health treatment facilities,  
            should create and employ methods that prevent prolonged delays  
            in case processing and ensure timely access to restoration  
            programs for defendants found incompetent to stand trial."   
            (Task Force for Criminal Justice Collaboration on Mental  
            Health Issues, Judicial Council of California, Final Report  
            (Apr. 2011) p. 27  
             [as of Apr. 14, 2014].)  Among the  
            recommendations proffered by the task force are that the  
            "[s]tate hospitals and mental health outpatient programs  
            should be adequately funded to ensure effective and timely  
            restoration of competency"; increase community placement  
            options through the Forensic Conditional Release Program and  
            other community-based programs for IST defendants charged with  
            nonviolent offenses; and modify existing law to provide courts  
            hearing competency matters more alternative procedural and  
            disposition tools, including "the jurisdiction to  
            conditionally release a defendant found incompetent to stand  
            trial to the community, where appropriate, rather than in a  
            custodial or hospital setting, to receive mental health  
            treatment with supervision until competency is restored."   
            (Id. at p. 29.)  This bill seeks to codify the task force  
            recommendation of allowing courts to place IST defendants on  
            outpatient status if the court finds the placement would  
            provide the person with more appropriate mental health  
            treatment and would not pose a danger to the health or safety  
            of others.  
                
            3)Conservatorship Investigator Report for Gravely-Disabled  
            Persons  :  The Task Force for Criminal Justice Collaboration on  
            Mental Health Issues also recognized that "[s]ome criminal  
            defendants with mental illness may be conserved or may be  
            involved in conservatorship proceedings at the same time that  
            their criminal case is being processed. Because these cases  
            are currently heard by different judicial officers on  
            different calendars, judicial officers hearing either the  








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            civil or criminal case often do not have all applicable  
            information, which can result in conflicting orders and other  
            complications for the defendant."  (Task Force Final Report at  
            p. 22.)  This bill also seeks to address this concern raised  
            by the task force by providing a court with criminal  
            jurisdiction over a person, when requesting that person to  
            undergo a mental evaluation and at the defendant or his or her  
            attorney's request, to be able to review the information  
            gathered for the evaluation and use it in guiding the  
            disposition of the person's criminal case.  
                 
            4)Argument in Support  :  The  Judicial Council  states that "[b]y  
            permitting courts to place certain mentally disordered  
            offenders in outpatient settings AB 2190 permits courts to  
            make placements that are most appropriate for an individual  
            defendant, which can result in cost savings, while still  
            protecting the public."  Additionally, "[b]y permitting  
            defendants to authorize release of conservatorship reports to  
            criminal courts, the bill increases the options available to  
            criminal courts when handling cases involving mentally  
            disordered offenders, and improves coordination between  
            conservatorship courts and the criminal courts."  
                 
            5)Argument in Opposition  :  The  California Public Defenders  
            Association  opposes "the proposed Penal Code section 1602(b).   
            The provisions of Penal Code section 1602 apply only to  
            persons who have been charged with non-violent felonies or  
            misdemeanors.  It is a waste of scarce judicial resources to  
            add notice and hearing requirements before placing such  
            individuals on outpatient status."  Additionally, the  
            Association opposes "the proposed Welfare & Institutions Code  
            section 5354(b) because it is an encroachment on the privacy  
            rights of the proposed conservatee.  Defendant and defense  
            counsel will be subjected to pressure to provide the  
            conservatorship report in order to obtain a better disposition  
            for the defendant.  Although defense counsel may informally  
            show the report to the parties now, knowing that the parties  
            will have their own hard copies will have a chilling effect on  
            the individual seeking mental health treatment and cooperating  
            with the mental health evaluator."  
            
            6)Current Legislation  :  
                 
              a)   AB 2186 (Lowenthal) seeks to change the process of the  
               involuntary administration of antipsychotic mediation of  








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               individuals who are found to be incompetent to stand trial.  
                AB 2186 is pending in this committee.

             b)   AB 2625 (Achadjian) would require the return to court,  
               as specified, of a defendant who was confined to a state  
               hospital for treatment to regain competency if the treating  
               facility reports that there is no substantial likelihood  
               that the defendant will regain competence in the  
               foreseeable future.  AB 2625 is pending in this committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Judicial Council (Sponsor)
          Californians for Safety and Justice
          Legal Services for Prisons with Children
          National Association of Social Workers, California Chapter

           Opposition 
           
          California Public Defenders Association
           

          Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744