BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
6
6
3
SB 663 (Lara)
As Amended: January 6, 2014
Hearing date: January 14, 2014
Penal Code
JM:sl
DEVELOPMENTALLY DISABLED ADULTS
POST TRAINING AND TRIAL SETTING
HISTORY
Source: Author
Prior Legislation: AB 602 (Yamada) - Ch. 673, Stats. 2013
AB 40 (Yamada) - Ch. 65, Stats. 2012
SB 1051 (Liu) - Ch. 660, Stats. 2012
SB 1522 (Leno) - Ch. 666, Stats. 2012
Support: The Arc of California
Opposition:None known
KEY ISSUES
SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING (POST)
DEVELOP A TRAINING COURSE ON INTERACTIONS WITH PERSONS WITH
DEVELOPMENTAL DISABILITIES?
SHOULD THE LEGISLATURE ENCOURAGE LAW ENFORCEMENT AGENCIES ACROSS THE
STATE TO ESTABLISH UNITS WITH EXPERIENCE AND EXPERTISE IN
INTERACTIONS WITH PERSONS WITH DEVELOPMENTAL DISABILITIES?
(More)
SB 663 (Lara)
PageB
SHOULD GOOD CAUSE FOR A CONTINUANCE INCLUDE THAT A PROSECUTOR IS
INVOLVED IN A HEARING OR TRIAL IN A CASE IN WHICH THE VICTIM HAS A
DEVELOPMENTAL DISABILITY?
PURPOSE
The purposes of this bill are 1) to direct POST (The Commission
on Peace Officer Standards and Training) to develop a course on
all aspects of interactions by law enforcement personnel with
persons with developmental disabilities; 2) to encourage law
enforcement agencies to establish specialized units with
expertise in interactions with persons with developmental
disabilities; 3) provide that courts should avoid double setting
prosecutors for trial where the victim in one of the cases has a
developmental disability; and 4) provide that good cause for a
trial continuance includes circumstances where the prosecutor is
currently involved in a hearing or trial in which the victim has
a developmental disability.
Training of Peace Officers - the Commission on Peace Officer
Standards and Training (POST)
Current law requires all peace officers to complete an
introductory course of training prescribed by POST, demonstrated
by passage of an appropriate examination developed by POST.
(Pen. Code § 832, subd. (a).)
Current law requires every police officer or deputy sheriff who
is assigned field or investigative duties to complete an elder
and dependent adult abuse training course certified by POST.
(Pen. Code § 13515, subd. (a).)
Current law requires POST to establish and update a continuing
education classroom training course related to law enforcement
interaction with mentally disabled persons. (Penal Code
§ 13515.25, subd. (a).)
(More)
SB 663 (Lara)
PageC
Current law requires POST to create and make available on DVD a
course on how to recognize and interact with persons with
autistic spectrum disorders. POST may distribute the material
electronically. (Pen. Code § 13515.35, subd. (a).)
Current law permits POST to establish, by July 1, 2015, and keep
updated, a training course relating to law enforcement
interaction with mentally disabled or developmentally disabled
persons living within a state mental hospital or state
developmental center, as specified. (Pen. Code §13515.30, subd.
(a).)
Current law provides that the training course would be required
for law enforcement personnel in law enforcement agencies with
jurisdiction over state mental health hospitals and state
developmental centers, as part of the agency's officer training
program. The course shall be available to law enforcement
across the state. (Pen. Code §13515.30, subd. (a).)
This bill directs POST to establish a training course on law
enforcement officers' interactions with persons with
developmental disabilities.
This bill provides that the training course on interactions with
persons with developmental disabilities shall include the
following:
Relevant laws;
Recognition of developmental and intellectual
disabilities, cognitive impairments and communication
impairments;
The prevalence of developmental disabilities;
The high right at which the developmentally disabled are
victimized;
Reporting requirements and procedures;
The unique characteristics, barriers and challenges of
persons with developmental and intellectual disabilities,
cognitive impairments and communication impairments, who
may be victims of abuse or exploitation;
Techniques to accommodate, interview and talk with
persons who may require assistive devices for
(More)
SB 663 (Lara)
PageD
communication;
Investigation techniques where an alleged perpetrator
may be the caregiver or service provider to a person with a
disability;
Procedures for limiting law enforcement interviews of
persons with disabilities;
Issues of capacity and consent;
Appropriate language and communication practices and
skills;
Community and state resources, advocacy support and
services;
Law enforcement use of resources, support and services;
and,
Examples of abuse and exploitation.
Specialized Law Enforcement Units and Victim Services Programs
Current law includes protocols and standards for investigating
specified classes of crimes, such as sexual assault and domestic
violence, and sets standards and funding methods for victims'
services in various circumstances. (Pen. Code §§ 13823.2 et
seq.)
Current law encourages local law enforcement agencies and social
service agencies to develop written, coordinated policies for
responding to cases involving drug endangered children. (Pen.
Code §§ 13879.80-13879.81.)
This bill encourages local law enforcement agencies to establish
specialized units with expertise in handling cases involving
persons with developmental disabilities.
Trial Setting Priorities and Related Issues
Existing law provides that in setting a criminal case for trial,
the trial court shall make reasonable efforts to avoid setting
conflicting trial dates for a prosecutor if one of the cases
includes a charge of murder, sexual assault, child abuse or a
case involving the district attorney's career criminal division
or unit. (Pen. Code §1048.1)
(More)
SB 663 (Lara)
PageE
This bill adds cases in which it is charged that the victim is a
person with a developmental disability, as defined,<1> to the
provisions directing courts to make reasonable efforts to not
set conflicting trial dates for a prosecutor.
Existing law provides that the public is best served where
criminal cases are heard at the earliest possible time. (Pen.
Code § 1050, subd. (a).)
Existing law also sets rules to guide courts in granting
continuance of a criminal trial and provides that "good cause"
for a continuance includes that the prosecutor is, at the time
the continuance is requested, engaged in a preliminary hearing,
motion to suppress evidence, or a trial in a case involving one
of the following charges or allegations: Murder, sexual assault
or abuse, a hate crime, domestic violence, stalking, or case
handled by the district attorney's career criminal division or
unit. (Pen. Code § 1050, subd. (g).)
This bill provides that good cause for continuance of a trial
includes situations where the prosecutor is currently involved
in a hearing or trial in a case where the victim is a person
with a developmental disability.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
---------------------------
<1> The bill provides that "developmental disability" is defined
in Evidence Code Section 1385. However, Evidence Section 1385
does not currently exist. The prior versions of the this bill
would have added Section 1385 to the Evidence Code, but that
provision was struck in the most recent amendments (01/06/14).
(More)
SB 663 (Lara)
PageF
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % prisoner population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
(More)
SB 663 (Lara)
PageG
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
As of December 4, 2013, California's 33 prisons were at 146.2
percent capacity, with 119,258 inmates.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the prison
population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there is
no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are proportionate,
and cannot be achieved through any other reasonably
appropriate remedy; and,
Whether a bill addresses a major area of public safety or
criminal activity for which there is no other reasonable,
appropriate remedy.
COMMENTS
1. Need for this Bill
According to the author:
Approximately 5% of the nation's population has a
developmental disability. Tragically, this population
is much more likely to face abuse, especially sexual
(More)
SB 663 (Lara)
PageH
assault than others without disabilities. These crimes
go unreported and unprosecuted.
Crime victims with developmental disabilities often
require assistance or accommodations during a police
investigation. Despite the number of Californians
living with developmental disabilities, law
enforcement receives little to no training on serving
these kinds of victims. As a result many perpetrators
are never held accountable for their crimes and
victims face repeated abuse.
SB 663 will direct the Commission on Police Officer
Standards and Training to develop and make available a
training module to educate law enforcement on the
unique challenges they will face when investigating
crimes against people with developmental disabilities.
The training will equip officers to properly
investigate crimes against those with developmental
disabilities and ensure victims get the justice they
deserve.
2. POST Training Requirements Including Specialized Training
Mandated or Authorized by Legislation
The Commission on Peace Officer Standards and Training (POST)
was created by the Legislature in 1959 to set minimum selection
and training standards for California law enforcement. (Pen.
Code §§ 13500, subd. (a), 13510, subd. (a).) As of 1989, all
peace officers in California are required to successfully
complete an introductory course of training prescribed by POST.
(Pen. Code § 832, subd. (a).)
According to the POST Web site, the Regular Basic Course
Training includes 42 separate topics, ranging from juvenile law
(More)
SB 663 (Lara)
PageI
and procedure to search and seizure.<2> These topics are taught
during a minimum of 664 hours of training.<3> Peace officer
candidates are trained not only on policing skills such as crowd
control, evidence collection and patrol techniques, they are
also required to recall the basic definition of a crime and know
the elements of major crimes. The Legislature has mandated or
authorized numerous POST training requirements. Examples of
mandated special training include interactions with victims of
human trafficking, avoidance of racial profiling, handling hate
crimes and, as particularly relevant to this bill, interactions
with persons with mental illnesses, development disabilities, or
both.
3. AB 602 (Yamada) - Chapter 673, Statutes of 2013 - POST
Training about Interactions with Residents of State
Developmental Centers
Existing Post Course for Law Enforcement Interaction with
Persons with Development Disabilities - Overlap and Additional
Issues
AB 602 (Yamada) Ch. 673, Stats. 2013 requires POST to develop
and make available a course for law enforcement officers on
interactions with residents of state mental hospitals and state
developmental centers. The bill was enacted in response to
reports of serious abuse and neglect of developmentally disabled
patients in state institutions. Many instances of serious abuse
were not properly investigated and patterns of abuse and neglect
continued. Comment # 4 discusses a report by California Watch
documenting the serious problems in the developmental centers.
This bill would effectively expand the reach of the training
course statewide, well beyond the small number of law
enforcement agencies that are likely to handle abuse and neglect
investigations in state facilities. The contents and subjects
of the training course required by this bill substantially
---------------------------
<2> POST, Regular Basic Course Training Specifications;
http://post.ca.gov/regular-basic-course-training-specifications.a
spx.
<3> POST, Regular Basic Course, Course Formats, available at:
http://post.ca.gov/regular-basic-course.aspx.
(More)
SB 663 (Lara)
PageJ
overlap the requirements for a course on law enforcement
interactions with developmentally disabled person in state
facilities. This bill, however, does include training on how to
handle cases where the suspected abuser is a personal caregiver
or service provider. Such circumstances will not likely occur
in state facilities. For purposes of creating the most
efficient and effective training course, it is suggested that
the course required by this bill be coordinated with the
training that concerns developmentally disabled persons in state
institutions. If the training courses are coordinated or
consolidated, perhaps the course could consider issues that
arise with patients in private care facilities.
Further, even where family members are not designated
caregivers, family and social dynamics may play a significant
role in problems encountered by developmentally disabled
persons. Abuse and neglect issues could arise from the entire
family and social structure of a developmentally disabled
person. (Petersilia, Crime Victims with Developmental
Disabilities, Criminal Justice and Behavior, Dec. 2000, pp.
657-659, 675-679.) Perhaps the bill could be amended to include
understanding family and social dynamics in matters involving
persons with developmental disabilities.
Suggested Amendments
The author may wish to consider the following amendments:
The training for law enforcement officers who handle
cases arising in state mental hospitals and development
centers should be integrated and coordinated with the
training required by this bill.
The training should include information on private
institutions that provide care to developmentally disabled
persons.
The training should include information about family and
social dynamics in matters involving person with
developmental disabilities.
(More)
SB 663 (Lara)
PageK
SHOULD THE BILL BE AMENDED TO INTEGRATE THE POST COURSE REQUIRED
BY THIS BILL WITH THE EXISTING COURSE CONCERNING STATE
INSTITUTIONS?
SHOULD THE BILL BE AMENDED TO INCLUDE ISSUES ARISING IN PRIVATE
CARE FACILITIES AND INFORMATION ABOUT FAMILY AND SOCIAL DYNAMICS
IN CASES INVOLVING PERSONS WITH DEVELOPMENTAL DISABILITIES?
4. Investigating Incidents that Occur in Developmental Centers-
Examples of Abuse, Neglect and Failure to Serve
Developmentally Disabled Persons in State Institutional
Settings.
This bill would require POST to establish a training course for
law enforcement officers across the state about interactions
with persons with developmental disabilities. The course would
include recognition of persons with developmental disabilities,
communication techniques and services available for such
persons. It appears that where a law enforcement officer with
little relevant training or experience about the developmentally
disabled contacts a crime victim with a developmental
disability, prosecution of the case and protection of the victim
may be compromised. Communication problems can interfere with
assembling the facts of the incident. The developmentally
disabled victim may be reluctant to cooperate with the
prosecution if the initial contact with the criminal justice
system is frustrating, alienating or frightening.
In recent years substantial concerns have been raised about the
treatment of developmentally disabled persons in state
institutions. This bill could prevent and limit problems in the
treatment of developmentally disabled persons who live in the
community.
A recent report by California Watch on abuse of residents of
developmental centers was extremely critical. The report noted
that increasing incidents of unexplained injuries and deaths
have raised questions about lack of protection for residents of
developmental centers. Inspection data from the Department of
Public Health showed that "developmental centers have been the
scene of 327 patient abuse cases since 2006 . . . . Patients
(More)
SB 663 (Lara)
PageL
have suffered an additional 762 injuries of 'unknown origin' -
often a signal of abuse that under state policy should be
investigated as a potential crime. At the state's five centers,
the list of unexplained injuries includes patients who suffered
deep cuts on the head; a fractured pelvis; a broken jaw; busted
ribs, shins and wrists; bruises and tears to male genitalia; and
burns on the skin the size and shape of a cigarette butt."
(Gabrielson, Police Force's Sloppy Investigations Leave Abuse of
Disabled Unsolved, California Watch (Feb. 23, 2012).) Hospital
police "often learns about potential abuse hours or days after
the fact - if they find out at all. Of the hundreds of abuse
cases reported at the centers since 2006, California Watch could
find just two cases where the department made an arrest." (Id.)
5. Specialized Law Enforcement Units to Handle Cases Involving
Developmentally Disabled Persons
Research has documented that persons with developmental
disabilities are at "disproportionately high risk for violent
victimization." Unfortunately, research also indicates that the
criminal justice system has been the last societal institution
to respond to and accommodate the needs of people with
developmental disabilities. (Petersilia, supra, pp. 655, 680.)
Specific and recurring issues arise in the investigation of
crimes in which the victims are developmentally disabled. For
example, an officer asking a person with Down syndrome repeated
questions may simply be trying to assemble the facts of the case
as accurately as possible. However, people with Down syndrome
may often perceive repeated questioning as threatening and try
to appease the questioner to limit the questions. This may
result in inaccurate police reports that impair the viability of
a case.
As persons with developmental disabilities are at high risk for
victimization, it may be helpful for law enforcement agencies to
establish units in which officers have training and experience
in interacting with people with developmental disabilities.
These units could also handle cases involving other persons with
special needs, such as the autistic and the mentally ill. For
example, specialized officers could perform the formal
interviews with sexual assault and felony assault victims who
(More)
SB 663 (Lara)
PageM
have developmental disabilities. Specialized officers could
also be dispatched to assist patrol officers who encounter
persons with special needs. Communication and trust problems
could be limited or eliminated before the investigation is
harmed.
6. Setting Trial Dates and Continuances in Cases where the Victim
has a Developmental Disability .
As noted above, existing law directs judges to take reasonable
efforts to avoiding double setting a prosecutor for trial where
one of the cases involve a charge of murder, sexual assault,
child abuse or a career criminal prosecution. The law also
provides that good cause for a continuance includes a situation
where the prosecutor is currently involved in a case involving
the same or similar crimes. This bill adds crimes in which the
victim has a developmental disability to these provisions.
(More)
Trial courts may face difficulties in implementing rules for
trial setting priorities based on the nature of the crime while
also ensuring that cases are not subject to dismissal because
defendants' speedy trial rights were violated. The state and
federal constitutions include a right to a speedy trial in a
criminal case. By statute, a defendant in a felony case has a
right to a trial within 60 days of arraignment on the
information (the formal charging document in a felony cases).
(Pen. Code § 1382.) Defendants whose cases are continued
because the crime charged does not have trial setting priority
may move for a dismissal under statutory or constitutional
grounds. Specific rules govern the dismissal and resetting of
trials where the statutory right to trial is violated.
Violating a constitutional right to trial will result in
permanent dismissal of the action.
However, as discussed above, persons with developmental
disabilities often have a negative response to frequent
questioning and difficulty communicating. Disruptions and
complications in a case involving a person with a developmental
disability could imperil a successful prosecution and traumatize
the victim. The author may wish to discuss with judges,
prosecutors and defense attorneys the provisions in this bill
about setting trials.
7. Incorrect Evidence Code Reference
As amended on January 6, 2014, the bill refers to Evidence Code
Section 1385, subdivision (h), to define the term "developmental
disability." Evidence Code Section 1385 does not currently
exist. Previous versions of this bill would have added this
section to the code. The reference to Evidence Code Section
1385 should be stricken from the bill.
It is further recommended that the term "developmental
disability" not be formally defined in this bill, at least until
it is determined that a specific definition is necessary.
Existing case law provides prosecutors with an advantageously
broad definition of developmental disability. In a case
involving sexual assault of a developmentally disabled girl, the
(More)
SB 663 (Lara)
PageO
court held that a technical, medical diagnosis is not required
to establish to a jury that the victim could not consent because
she had a developmental disability. (People v. Miranda (2011)
199 Cal.App.4th 1403, 1412-1418.) As lay jurors can make a
determination that a witness has a developmental disability, it
certainly appears that a court could make such a determination
in the context of an order setting a trial date. Only a
relatively informal showing that a victim is disabled would
likely be necessary to establish that a victim is
developmentally disabled for purposes of trial setting and
continuances. Including a formal definition that essentially
includes a medical diagnosis could require expert testimony or
declarations for the granting of a continuance. The court in
Mobley explained:
The existence of capacity to consent is a question of
fact. A lay juror is able to assess the extent of a
victim's mental disability. The question whether a
person possesses sufficient resources-intellectual,
emotional, social, psychological-to determine whether
to participate in sexual contact with another is an
assessment within the ken of the average juror, who
likely has made the same determination at some point.
There is a nationwide consensus that expert testimony
on this issue is not required. [L]ack of capacity to
consent "does not call for any particular type of
clinical diagnosis. (Id. at pp. 1413-1414, internal
quotation marks and citations excluded.)
SHOULD THE REFERENCE TO EVIDENCE CODE SECTION 1385 - A SECTION
THAT DOES NOT CURRENTLY EXIST - BE STRICKEN FROM THE BILL?
***************