BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2625
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          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  : 








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          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.  








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             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  








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            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








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           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  








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            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  








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            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  








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               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