BILL ANALYSIS Ó AB 2625 Page 1 Date of Hearing: April 22, 2014 Counsel: Shaun Naidu ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 2625 (Achadjian) - As Amended: March 19, 2014 SUMMARY : Specifies procedures relative to returning to the court a defendant who is committed to a state hospital for treatment to regain mental competency but who has not recovered competence. Specifically, this bill : 1)Changes the requirement that the medical director of the state hospital or other treatment facility to which a defendant is confined for treatment to make a written report to the court and county community program director concerning the defendant's progress toward recovery of mental competence from within 90 days of the order of commitment to within 90 days of admission. 2)Requires the medical director of the state hospital or other treatment facility to which a defendant is confined for treatment to regain mental competence to do the following if the medical director's report concerning the defendant's progress toward mental competency recovery indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future: a) Promptly notify and provide a copy of the report to the defendant's attorney and the district attorney; and, b) Provide a separate notification, in compliance with applicable privacy laws, to the committing county's sheriff that transportation will be needed for the patient. 3)Requires that a defendant committed to a state hospital for treatment to regain mental competency, but who has not recovered competence, to be returned to the committing court no later than 90 days before the expiration of the defendant's term of commitment. EXISTING LAW : AB 2625 Page 2 1)Prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).) 2)Defines "mental incompetency" as an individual who, as a result of mental disorder or developmental disability, is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367, subd. (a).) 3)Requires, if during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, the judge to state that doubt on the record and inquire of the defendant's attorney whether, in the opinion of that attorney, the defendant is mentally competent. Requires the court, at the request of the defendant or his or her attorney, to recess the proceeding for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant. (Pen. Code, § 1368, subd. (a).) 4)Requires the trial to determine mental competency to proceed as follows: a) Requires the court to appoint a psychiatrist or licensed psychologist to examine the defendant and to appoint two psychiatrists or licensed psychologists if the defendant is not seeking a finding of mental incompetence. Requires the examining psychiatrist or licensed psychologist to evaluate the nature of the defendant's mental disorder, if any; the defendant's ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner; and whether treatment with antipsychotic medications is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to competency. b) Requires the defendant's attorney to offer evidence in support of the allegation of mental incompetence. c) Requires the prosecution to present its case regarding the issue of the defendant's present mental competence. AB 2625 Page 3 d) Allows each party to present rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention. (Pen. Code, § 1369.) 5)States that if the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged shall proceed, and judgment may be pronounced. (Pen. Code, § 1370, subd. (a)(1)(A).) 6)Requires, if the defendant is found mentally incompetent, the trial or judgment to be suspended until the person becomes mentally competent. (Pen. Code, § 1370, subd. (a)(1)(B).) 7)Requires the court, if the defendant is found mentally incompetent, to order the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, any other available public or private treatment facility that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status, as specified. Provides, however, that if the offense for which the defendant was charged with and found to be mentally incompetent to stand trial for is a felony specified in the Sex Offender Registration Act, the prosecutor is to determine if the defendant had previously been found to be incompetent to stand trial for an offense listed in the Sex Offender Registration Act or is pending such a hearing, and if so, after notification to the court and defendant in writing and opportunity for a hearing, the court is to order the defendant be delivered by the sheriff to a state hospital or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others (Pen. Code, § 1370, subd. (a)(1)(B)(i) & (ii).) 8)States that if the offense for which the defendant was charged with and found to be mentally incompetent to stand trial for is a felony offense specified in the Sex Offender Registration Act and the defendant has been denied bail because the court has found, based upon clear and convincing evidence, a substantial likelihood that the person's release would result in great bodily harm to others, the court shall order the AB 2625 Page 4 defendant to be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others. (Pen. Code, § 1370, subd. (a)(1)(B)(iii).) 9)Prohibits a defendant charged with a violent felony, as specified, to be delivered to a state hospital or treatment facility unless that hospital or facility has a secured perimeter or a locked and controlled treatment facility and the judge determines that the public safety will be protected. (Pen. Code, § 1370, subd. (a)(1)(D).) 10)Requires a medical director of the state hospital or other treatment facility to which the defendant is confined, or the outpatient treatment staff if the defendant is on outpatient status, to make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendant's progress toward recovery of mental competence within 90 days of the order of commitment, or placement on outpatient status, made pursuant to the above provisions and at 6-month intervals thereafter or until the defendant becomes mentally competent. Requires a copy of these reports be provided to the prosecutor and defense attorney by the court. (Pen. Code, § 1370, subd. (b)(1).) 11)Requires the committing court to order the defendant to be returned to the court for conservatorship proceedings, as specified, if the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future. (Pen. Code, § 1370, subd. (b)(1).) 12)Requires a defendant who has not recovered mental competence to be returned to the committing court at the end of 3 years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter. (Pen. Code, § 1370, subd. (c)(1).) FISCAL EFFECT : Unknown AB 2625 Page 5 COMMENTS : 1)Author's Statement : According to the author, "Patients are taken into DSH custody in order for them to participate in a program aimed at assisting in the restoration of competency, in order for the patient to stand trial. Some patients, however, have severe mental disorders that make it unlikely that they can be restored to trial competency. For these patients, the State Hospital issues a progress report to the committing county court informing them the patient is Incompetent to Stand Trial (IST). Many counties do not retrieve these individuals, which then leaves them in the custody of the State Hospital at a cost of approximately $200,000 per year, per patient. In addition to this, the waitlist for IST patients awaiting placement in State Hospitals is at over 300 individuals. AB 2625 is an agreement between the Governor's office, county officials, law enforcement, and DSH in order to get these individuals back into the custody of the county so that State Hospitals can begin placing patients on the IST waitlist. This legislation is sponsored by the Administration and DSH." 2)Incompetency & Conservatorship : The well-established standard in American jurisprudence regarding a person's mental fitness to stand trial was laid out by the U.S. Supreme Court in Dusky v. United States. The Court stated that "the test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him." (Dusky v. United States (1960) 362 U.S. 402, 402 [internal quotations omitted].) California has codified this standard in Penal Code section 1367, subdivision (a), which bars a person from being tried or adjudged to punishment if that person, "as a result of mental disorder or developmental disability, ? is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Pen. Code, § 1367, subd. (a).) If the court finds a defendant mentally incompetent to stand trial, the person is committed to a state hospital or other (inpatient or outpatient) treatment facility for treatment to regain competency in order to be brought back to court to face the charges against him or her. (Pen. Code, § 1370, subd. (a).) The person statutorily may be committed to the treatment AB 2625 Page 6 facility for 3 years or the period equal to the maximum term of imprisonment for the most serious underlying offense with which he or she is charged, whichever is shorter. (Pen. Code, § 1370, subd. (c)(1).) If the treatment facility determines that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future or if the patient has not regained competency after this period, the defendant is returned to the committing court. (Pen. Code, § 1370, subds. (b) & (c).) When a defendant is returned to the court as described above, the court may determine a conservatorship is the appropriate course of action for the defendant. Before the court can establish a conservatorship pursuant to Penal Code section 1370, the court must make certain findings, namely that the defendant is "gravely disabled" and that "by reason of a mental disease, defect, or disorder, the person represents a substantial danger of physical harm to others." (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 176-77.) The following conditions are required for the court to find a defendant "gravely disabled": (i) the indictment or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person; (ii) the indictment or information has not been dismissed; and (iii) as a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner. (Welf. & Inst. Code, § 5008, subd. (h)(1)(B).) Once these findings have been made by the court, it may order the conservatorship investigator of the committing county to initiate conservatorship proceedings. (Pen. Code, § 1370, subd. (c)(2).) If the defendant becomes mentally competent after a conservatorship has been established, the conservator must certify that fact to the sheriff, district attorney, committing court, and defendant's attorney of record (Pen. Code, § 1372, subd. (b).), as failure to resume court proceedings promptly after the defendant regains competency may result in the deprivation of the constitutional right to a speedy trial. (See People v. Simpson (1973) 30 Cal.App.3d 177.) 3)Argument in Support : The Department of State Hospitals states, "[t]his bill is intended to help reduce the backlog of AB 2625 Page 7 patients on waitlists in county jails by ensuring IST patients who cannot be restored to trial competency are returned to their original county of commitment in a timely manner. The failure to retrieve IST patients in a timely manner poses a substantial problem for the justice system by occupying IST program space needed for other patients waiting in county jails. It also delays the resolution of court cases of IST patients who can be restored to competency successfully." 4)Argument in Opposition : California Attorneys for Criminal Justice's objection to this bill is its fear that changing the written report to the court on the defendant's progress towards recovery of mental competence from within 90 days of the commitment order to within 90 days of admission "is rife with the potential for substantial delay in the treatment of those who are in great need of treatment to restore their mental competence. [] Even under current law requiring the initial report to be made within 90 days of the commitment order, there are regular delays of weeks and even months in getting the IST transported out of county jail, as a result of overcrowding and bed unavailability in state hospitals and other treatment facilities. We fear that if there were no requirement to provide the initial report within 90 days of the commitment order, which creates a natural tension to get the IST transported to start his treatment so that a meaningful report can be provided, IST's [sic] will find themselves languishing in county jails for much longer periods as there will be no deadline for providing the initial report to the court until 90 days after 'admission'. Not only would this be antithetical to the interests of those suffering from severe mental disorders, but would be fiscally irresponsible as it will almost certainly result in longer periods of incarceration for these unfortunate persons who are IST." 5)Current Legislation : a) AB 2186 (Lowenthal) would make changes to the process of involuntary administration of antipsychotic mediation of individuals who are found to be incompetent to stand trial and confined in a state hospital or county jail. AB 2186 is pending in this committee. b) AB 2190 (Maienschein) would allow the court to place a person found to be incompetent to stand trial or not guilty by reason of insanity on outpatient status without prior AB 2625 Page 8 confinement for a specified period within a mental health treatment facility. AB 2190 is pending in this committee. REGISTERED SUPPORT / OPPOSITION : Support Department of State Hospitals (Sponsor) California Association of Psychiatric Technicians California District Attorneys Association California State Sheriffs' Association Los Angeles County Sheriff's Department Opposition California Attorneys for Criminal Justice Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744