BILL ANALYSIS Ó
AB 1237
Page 1
Date of Hearing: April 28, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1237 (Brown) - As Introduced February 27, 2015
SUMMARY: Requires the State Department of State Hospitals to
establish, within the department, a pool of psychiatrists and
psychologists with forensic skills, and would require the
department to create evaluation panels from the pool of
psychiatrists and psychologists, as specified. This bill would
require the court to order an examination by an evaluation panel
for a defendant who pleads not guilty by reason of insanity or
who may be mentally incompetent. The bill would also make
conforming changes. Specifically, this bill:
1)Requires the State Department of State Hospitals to establish
a pool of psychiatrists and psychologists with forensic skills
who are employees of the department from which evaluation
panels shall be created.
2)Requires the State Department of State Hospitals to create
evaluation panels with each panel consisting of three to five
forensic psychiatrists or psychologists from the pool of
psychiatrists and psychologists.
3)Requires the court to appoint an evaluation panel to examine
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the defendant and investigate his or her mental status, when a
defendant pleads not guilty by reason of insanity.
4) States that is the duty of the evaluation panel to make the
examination and investigation, and to testify, whenever
summoned, in any proceeding in which the sanity of the
defendant is in question.
5)Allows the members of the evaluation panel, in addition to
their actual traveling expenses, those fees that in the
discretion of the court seem just and reasonable, having
regard to the services rendered by the witnesses. The fees
allowed shall be paid by the county where the indictment was
found or in which the defendant was held for trial to the
State Department of State Hospitals.
6)Requires any report on the examination and investigation of
mental sanity, include, but not be limited to, the
psychological history of the defendant, the facts surrounding
the commission of the acts forming the basis for the present
charge used by the evaluation panel in making the panel's
examination of the defendant, the present psychological or
psychiatric symptoms of the defendant, if any, the substance
abuse history of the defendant, the substance abuse history of
the defendant on the day of the offense, a review of the
police report for the offense, and any other credible and
relevant material reasonably necessary to describe the facts
of the offense.
7)Requires that a trial by court or jury of the question of
mental competence shall proceed in the following order:
a) The court shall appoint an evaluation panel, and any
other expert with forensic experience the court may deem
appropriate, to examine the defendant;
b) The defense and the prosecution shall each confer with
the State Department of State Hospitals regarding the
selection of the panelists, in any case in which the
defendant or the defendant's counsel informs the court that
the defendant is not seeking a finding of mental
incompetence;
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c) The defense and the prosecution shall each confer with
the State Department of State Hospitals regarding the
selection of the panelists;
d) Requires the examining panelists 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 as a result of a mental
disorder and, if within the scope of their licenses and
appropriate to their opinions, whether or not treatment
with antipsychotic medication is medically appropriate for
the defendant and whether antipsychotic medication is
likely to restore the defendant to mental competence;
e) Requires that the panelist inform the court of his or
her opinion and his or her recommendation, if an examining
panelist is of the opinion that antipsychotic medication
may be medically appropriate for the defendant and that the
defendant should be evaluated by a psychiatrist to
determine if antipsychotic medication is medically
appropriate;
f) The examining panelists shall also address the issues of
whether the defendant has capacity to make decisions
regarding antipsychotic medication and whether the
defendant is a danger to self or others;
g) If the defendant is examined by a psychiatrist and the
psychiatrist forms an opinion as to whether or not
treatment with antipsychotic medication is medically
appropriate, the psychiatrist shall inform the court of his
or her opinions as to the likely or potential side effects
of the medication, the expected efficacy of the medication,
possible alternative treatments, and whether it is
medically appropriate to administer antipsychotic
medication in the county jail;
h) If it is suspected the defendant is developmentally
disabled, the court shall appoint the director of the
regional center for the developmentally disabled, or the
designee of the director, to examine the defendant. The
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court may order the developmentally disabled defendant to
be confined for examination in a residential facility or
state hospital;
i) The regional center director shall recommend to the
court a suitable residential facility or state hospital.
Prior to issuing an order pursuant to this section, the
court shall consider the recommendation of the regional
center director. While the person is confined pursuant to
order of the court under this section, he or she shall be
provided with necessary care and treatment;
j) The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence;
aa) The prosecution shall offer any evidence in support of
the allegation of mental incompetence;
bb) Allows each party may offer rebutting testimony, unless
the court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention;
cc) When the evidence is concluded, unless the case is
submitted without final argument, the prosecution shall
make its final argument and the defense shall conclude with
its final argument to the court or jury;
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dd) In a jury trial, the court shall charge the jury,
instructing them on all matters of law necessary for the
rendering of a verdict. It shall be presumed that the
defendant is mentally competent unless it is proved by a
preponderance of the evidence that the defendant is
mentally incompetent. The verdict of the jury shall be
unanimous; and
ee) Only a court trial is required to determine competency
in any proceeding for a violation of probation, mandatory
supervision, postrelease community supervision, or parole.
8)Requires the State Department of State Hospitals to establish
a pool of psychiatrists and psychologists with forensic skills
who are employees of the department from which evaluation
panels shall be created.
9)Requires the State Department of State Hospitals to create
evaluation panels with each panel consisting of three to five
forensic psychiatrists or psychologists from the pool created
in subdivision (a).
EXISTING LAW:
1)Requires the court select and appoint two, and may select and
appoint three, psychiatrists, or licensed psychologists who
have a doctoral degree in psychology and at least five years
of postgraduate experience in the diagnosis and treatment of
emotional and mental disorders, to examine the defendant and
investigate his or her mental status, when a defendant pleads
not guilty by reason of insanity. (Pen. Code, § 1027, subd.
(a).)
2)Requires the psychiatrists or psychologists selected and
appointed to make the examination and investigation, and to
testify, whenever summoned, in any proceeding in which the
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sanity of the defendant is in question. (Pen. Code, § 1027,
subd. (a).)
3)Allows the psychiatrists or psychologists appointed by the
court, in addition to their actual traveling expenses, fees
that in the discretion of the court seem just and reasonable,
having regard to the services rendered by the witnesses. The
fees allowed shall be paid by the county where the indictment
was found or in which the defendant was held for trial. (Pen.
Code, § 1027, subd. (a).)
4)States that any report on the examination and investigation of
defendant's mental status, shall include, but not be limited
to, the psychological history of the defendant, the facts
surrounding the commission of the acts forming the basis for
the present charge used by the psychiatrist or psychologist in
making his or her examination of the defendant, the present
psychological or psychiatric symptoms of the defendant, if
any, the substance abuse history of the defendant, the
substance use history of the defendant on the day of the
offense, a review of the police report for the offense, and
any other credible and relevant material reasonably necessary
to describe the facts of the offense. (Pen. Code, § 1027,
subd. (b).)
5)States that this section does not presume that a psychiatrist
or psychologist can determine whether a defendant was sane or
insane at the time of the alleged offense. This section does
not limit a court's discretion to admit or exclude, pursuant
to the Evidence Code, psychiatric or psychological evidence
about the defendant's state of mind or mental or emotional
condition at the time of the alleged offense. (Pen. Code, §
1027, subd. (c).)
6)Provides that nothing contained in this section shall be
deemed or construed to prevent any party to any criminal
action from producing any other expert evidence with respect
to the mental status of the defendant. If expert witnesses
are called by the district attorney in the action, they shall
only be entitled to those witness fees as may be allowed by
the court. (Pen. Code, § 1027, subd. (d).)
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7)Specifies that any psychiatrist or psychologist appointed by
the court may be called by either party to the action or by
the court, and shall be subject to all legal objections as to
competency and bias and as to qualifications as an expert.
When called by the court or by either party to the action, the
court may examine the psychiatrist or psychologist, as deemed
necessary, but either party shall have the same right to
object to the questions asked by the court and the evidence
adduced as though the psychiatrist or psychologist were a
witness for the adverse party. When the psychiatrist or
psychologist is called and examined by the court, the parties
may cross-examine him or her in the order directed by the
court. When called by either party to the action, the adverse
party may examine him or her the same as in the case of any
other witness called by the party. (Pen. Code, § 1027, subd.
(e).)
8)Requires a trial by court or jury of the question of mental
competence to proceed in the following order:
a) The court shall appoint a psychiatrist or licensed
psychologist, and any other expert the court may deem
appropriate, to examine the defendant; (Pen. Code § 1369,
subd. (a).)
b) In any case where the defendant or the defendant's
counsel informs the court that the defendant is not seeking
a finding of mental incompetence, the court shall appoint
two psychiatrists, licensed psychologists, or a combination
thereof; (Pen. Code § 1369, subd. (a).)
c) One of the psychiatrists or licensed psychologists may
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be named by the defense and one may be named by the
prosecution; (Pen. Code § 1369, subd. (a).)
d) The examining psychiatrists or licensed psychologists
shall 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 as
a result of a mental disorder and, if within the scope of
their licenses and appropriate to their opinions, whether
or not treatment with antipsychotic medication is medically
appropriate for the defendant and whether antipsychotic
medication is likely to restore the defendant to mental
competence; (Pen. Code § 1369, subd. (a).)
e) If an examining psychologist is of the opinion that
antipsychotic medication may be medically appropriate for
the defendant and that the defendant should be evaluated by
a psychiatrist to determine if antipsychotic medication is
medically appropriate, the psychologist shall inform the
court of this opinion and his or her recommendation as to
whether a psychiatrist should examine the defendant; (Pen.
Code § 1369, subd. (a).)
f) The examining psychiatrists or licensed psychologists
shall also address the issues of whether the defendant has
capacity to make decisions regarding antipsychotic
medication and whether the defendant is a danger to self or
others; (Pen. Code § 1369, subd. (a).)
g) If the defendant is examined by a psychiatrist and the
psychiatrist forms an opinion as to whether or not
treatment with antipsychotic medication is medically
appropriate, the psychiatrist shall inform the court of his
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or her opinions as to the likely or potential side effects
of the medication, the expected efficacy of the medication,
possible alternative treatments, and whether it is
medically appropriate to administer antipsychotic
medication in the county jail; (Pen. Code § 1369, subd.
(a).)
h) If it is suspected the defendant is developmentally
disabled, the court shall appoint the director of the
regional center for the developmentally, or the designee of
the director, to examine the defendant. The court may order
the developmentally disabled defendant to be confined for
examination in a residential facility or state hospital;
(Pen. Code § 1369, subd. (a).)
i) The regional center director shall recommend to the
court a suitable residential facility or state hospital.
Prior to issuing an order pursuant to this section, the
court shall consider the recommendation of the regional
center director. While the person is confined pursuant to
order of the court under this section, he or she shall be
provided with necessary care and treatment; (Pen. Code §
1369, subd. (a).)
j) The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence; (Pen.
Code § 1369, subd. (b)(1).)
aa) If the defense declines to offer any evidence in support
of the allegation of mental incompetence, the prosecution
may do so; (Pen. Code § 1369, subd. (b)(2).)
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bb) The prosecution shall present its case regarding the
issue of the defendant's present mental competence; (Pen.
Code § 1369, subd. (c).)
cc) Each party may offer 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, subd. (d).)
dd) When the evidence is concluded, unless the case is
submitted without final argument, the prosecution shall
make its final argument and the defense shall conclude with
its final argument to the court or jury; (Pen. Code § 1369,
subd. (e).)
ee) In a jury trial, the court shall charge the jury,
instructing them on all matters of law necessary for the
rendering of a verdict. It shall be presumed that the
defendant is mentally competent unless it is proved by a
preponderance of the evidence that the defendant is
mentally incompetent. The verdict of the jury shall be
unanimous; and (Pen. Code § 1369, subd. (f).)
ff) Only a court trial is required to determine competency
in any proceeding for a violation of probation, mandatory
supervision, postrelease community supervision, or parole.
(Pen. Code § 1369, subd. (g).)
FISCAL EFFECT: Unknown
COMMENTS:
1.Author's Statement: According to the author, "The Department
of State Hospitals estimates that between 15-20 percent of
their patients are malingerers. Malingerers are patients who
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are faking mental illness to avoid being sentenced to prison.
Once they are sent to a state hospital, they then become
threats to hospital staff and patients. Violence against
hospital staff could be reduced if patients were examined by
the psychologists and psychiatrist who are familiar with the
state hospital system."
2.Background: According to the Legislative Analyst's Office
(LAO), the state's five state hospitals-Atascadero, Coalinga,
Metropolitan, Napa, and Patton-provide treatment to a combined
patient population of approximately 6,600. State hospitals
treat patients under several forensic commitment
classifications, including Not Guilty by Reason of Insanity,
Incompetent to Stand Trial, Sexually Violent Predators, and
Mentally Disordered Offenders. Currently the state hospitals
are treating approximately 1,400 patients who are not guilty
by reason of insanity(NGI) and approximately 1,300 patients
who are incompetent to stand trial (IST). Since the death of
a psychiatric technician at the Napa State Hospital in October
2010, much attention has been focused on the level of assaults
on state hospital staff and patients. (See Lee Romney,
California mental hospitals are dangerous, legislators told,
L.A. Times (Aug. 24, 2011).)
3.Incompetent to Stand Trial: Under state and federal law, all
individuals who face criminal charges must be mentally
competent to help in their defense. By definition, an
individual who is IST lacks the mental competency to
participate in legal proceedings. In a January 2012 report by
the Office of the Legislative Analyst (LAO) entitled, "An
Alternative Approach: Treating the Incompetent to Stand
Trial," the LAO outlined the specific process California
courts must follow when a defendant's competency is in doubt.
The process is often initiated by defense attorneys concerned
about the client's mental capacity which then requires the
judge to order an evaluation of the person by court-appointed
mental health experts, during which time the court proceedings
are suspended. The evaluation and report guides the court to
assess competency. In cases when a person is found IST,
judges then typically order an evaluation to determine the
most appropriate treatment facility, the goal of treatment
being restoring the person to competency. Individuals charged
with a violent felony are typically ordered to undergo
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treatment at a state hospital.
4.Not Guilty by Reason of Insanity: According to a Disability
Rights California May 2009 report entitled, "Forensic Mental
Health Legal Issues," the plea of NGI is an affirmative
defense to a criminal charge, but refers to a legal definition
not a clinical diagnosis. Under current California law, a
defendant will be found NGI if it is proven by a preponderance
of the evidence that the individual was either: i) incapable
of knowing or understanding the nature and quality of the act;
or, ii) incapable of distinguishing right from wrong at the
time the offence was committed. The insanity defense is used
primarily when a criminal charge is a serious felony. If a
court or jury finds a person NGI, the court must determine
whether to confine the person in a state hospital or
outpatient treatment program. Penal Code Section 1026
requires, prior to making the placement, the court to order an
evaluation by the CPD to advise the court on the most
appropriate placement.
5.State Hospitals Have Been Criticized for Their Evaluations of
Sexually Violent Predators(SVP): Although NGIs and ISTs are
currently evaluated by experts at a local level, State
Hospitals have the responsibility to evaluate SVPs. The
California State Auditor recently published results of its
audit concerning the California Department of State Hospitals'
Sex Offender Commitment Program and evaluation of SVPs. The
report concluded that the State Hospitals' evaluation of
potential SVPs were inconsistent. The report noted gaps in
policies, supervision, and training. The report noted that
State Hospitals have not consistently offered training to its
evaluators and did not provide SVP evaluators with any
training between August 2012 and May 2014. (California
Department of State Hospitals, California State Auditor, March
2015.)
6.ISTs and NGI are Determined in the Course of an Adversarial
Process with Checks and Balances beyond the Evaluators: The
existing process to determine NGIs and ISTs involves mental
health evaluations by experts who are psychiatrists or
psychologists. But in addition to the evaluations by the
experts, the process includes a judge, a district attorney,
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and a defense attorney. To the extent the parties have
concerns or disagreements about the validity of the
determinations reached by the evaluators, the parties can
demand a trial to determine if the defendant meets the legal
standard for NGI or IST. The trial allows additional evidence
to be presented, and existing evidence to be challenged, by
the parties in order reach an accurate determination of NGI or
IST, if there is not a consensus among the parties.
7.Argument in Support: According to The American Federation of
State, County and Municipal Employees, "AFSCME strongly
supports AB 1237 in requiring the Department of State
Hospitals (DSH) to establish, within the department, a pool of
psychiatrists and psychologists with forensic skills. AB 1237
would also create evaluation panels from the aforementioned
pool to evaluate a defendant who pleads not guilty by reason
of insanity or who may be mentally incompetent. Our
affiliate, the Union of American Physicians and Dentists UAPD)
is sponsoring AB 1237, and we proudly stand with them in
support of a measure that would aid the DSH in being able to
more appropriately diagnose and place forensic patients in an
appropriate state hospital setting. AB 1237 would go a long
way in stemming the tide of violence against hospital staff in
the state hospitals."
8.Argument in Opposition: According to The Judicial Council,
"In support of AB 1237, the author's fact sheet asserts that
"court appointed psychiatrists are not always familiar with
the populations being served at the different state hospitals"
and that "[a]s a result, malingerers are often placed in the
state hospital system and the safety of patients and staff is
put in jeopardy." The Judicial Council believes that these
statements conflate separate issues and that no evidence of
the assertions is provided in either the bill or the
background materials provided by the author. The council also
believes that the consequence of the bill's radical shift in
procedure from court-appointed psychiatrists and psychologists
to state hospital evaluation panels would virtually replace
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the need for local forensic experts and related quality
assurance mechanisms. In addition, the Judicial Council is
concerned that the bill shifts clinical responsibility for
determining mental illness-related issues to individuals who,
obviously, have interests and incentives external to the
judicial process. Restricting the criminal courts' ability to
secure timely and unbiased forensic evaluations in NGI and IST
cases inappropriately impedes the independence of judicial
decision making. Moreover, the council is concerned about
potential delays in the court process that could result from
having only a limited pool of evaluators to draw from,
especially since those evaluators may be located a significant
distance from the counties where the proceedings are being
conducted.
"It is also important to note that AB 1237 wholly fails to
address the issue of the qualifications and training standards
for forensic evaluators, which appears to be the principal
policy concern underlying this measure. The issue of
qualifications and training for forensic evaluators was one of
the topics of discussion during stakeholder meetings regarding
state hospitals and developmental centers that were convened
by the Governor's office last year. While a number of the
participants expressed interest in further pursuing this
avenue, there was no mention of the type of fundamental shift
in how California's long-standing forensic evaluation system
operates that AB 1237 presents. The Judicial Council
respectfully suggests that a similar stakeholder process,
involving all of the key interest groups, is a more
appropriate forum for addressing the underlying concerns
behind this bill."
9.Prior Legislation: AB 2543 (Levine), of the 2013-2014,
Legislative Session, would have required the State Department
of State Hospitals to establish a pool of psychiatrists and
psychologists with forensic skills who would evaluate a
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defendant who pleads not guilty by reason of insanity or who
may be mentally incompetent.
REGISTERED SUPPORT / OPPOSITION:
Support
American Federation of State, County and Municipal Employees
(Co-Sponsor)
Union of American Physicians and Dentists (Co-Sponsor)
California Association of Psychiatric Technicians
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California District Attorneys Association
California Judges Association
California Public Defenders Association
California State Association of Counties
Disability Rights California
Judicial Council of California
Los Angeles County District Attorney's Office
San Francisco Public Defender
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744