BILL ANALYSIS Ó
AB 1962
Page 1
Date of Hearing: April 5, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1962 (Dodd) - As Amended March 30, 2016
SUMMARY: Requires establishing guidelines regarding minimum
education and training standards for psychiatrists and
psychologists to be considered for appointment by the court to
conduct evaluations of defendants' mental competence.
Specifically, this bill:
1)Requires the Department of State Hospitals to adopt guidelines
establishing minimum education and training standards for a
psychiatrist of licensed psychologist to be considered for
appointment by the court to conduct examinations of defendants
regarding mental incompetence.
2)Requires the Department of State Hospitals to consult with the
Judicial Council of California and groups or individuals
representing judges, defense counsel, district attorneys,
counties, advocates for people with developmental and mental
disabilities, state psychologists and psychiatrists,
professional associations and accredit bodies for
psychologists and psychiatrists, and other interested
stakeholders in the development of guidelines.
EXISTING LAW:
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1)Provides person cannot be tried to punishment or have his or
her probation, mandatory supervision, postrelease community
supervision, or parole revoked while that person is mentally
incompetent. (Pen. Code, § 1367, subd. (a).)
2)States that a defendant is mentally incompetent for purposes
of this chapter if, as a result of mental disorder or
developmental disability, the defendant 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)Specifies that if a doubt arises in the mind of the judge as
to the mental competence of the defendant, he or she shall
state that doubt in the record and inquire of the attorney for
the defendant whether, in the opinion of the attorney, the
defendant is mentally competent. (Pen. Code, § 1368, subd.
(a).)
4)Provides that if counsel informs the court that he or she
believes the defendant is or may be mentally incompetent, the
court shall order that the question of the defendant's mental
competence is to be determined in a hearing. (Pen. Code, §
1368, subd. (b).)
5)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
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thereof; (Pen. Code § 1369, subd. (a).)
c) One of the psychiatrists or licensed psychologists may
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).)
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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; (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
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of the allegation of mental incompetence, the prosecution
may do so; (Pen. Code § 1369, subd. (b)(2).)
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).)
a) 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).)
6)Specifies that a person cannot be tried, or have his or her
probation, mandatory supervision, postrelease community
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supervision, or parole revoked while that person is mentally
incompetent.
7)States that a defendant is mentally incompetent if, as a
result of mental disorder or developmental disability, the
defendant 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).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "It is crucial
that we ensure that the psychiatrists and psychologists who
determine mental competency of criminal defendants have the
experience to be able to provide an accurate determination.
Without adequate training, experience, and standards, these
evaluators may incorrectly determine a malingerer is
incompetent to stand trial and place them in our state
hospital system. The Department of State Hospitals estimates
that between 15-20 percent of the patients referred to them as
incompetent to stand trial are patients who are faking mental
illness to avoid being sentenced to prison (malingerers). This
represents a significant unneeded cost to the state, and also
a safety risk to employees and patients, as malingerers can
prey on patients and staff once they arrive. Assaults occur on
state hospital staff or other patients on a daily basis,
sometimes resulting in serious injury, and ensuring evaluators
are adequately trained will reduce erroneous commitments.
Additionally, ensuring evaluators have the proper experience
will ensure those who truly need treatment in our state
hospitals are placed there to get the help they need and are
not unnecessarily victimized."
2)Mental Incompetence: A defendant is mentally incompetent "if,
as a result of mental disorder or developmental disability,
the defendant 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.)
Evidence of incompetence may come from several sources,
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including the defendant's demeanor, irrational behavior, and
prior mental examinations; however, to be entitled to a
competency hearing, a defendant must exhibit more than "a
preexisting psychiatric condition that has little bearing on
the question . . . whether the defendant can assist his
defense counsel." (People v. Rogers (2006) 39 Cal.4th 826,
847.)
When substantial evidence of incompetence exists, the trial
court cannot proceed with the case against the defendant
without first holding a competency hearing.
Once the court declares a doubt about a defendant's competence
to stand trial, or whenever there is substantial evidence of
incompetence, the trial court must appoint a psychiatrist or
licensed psychologist to examine the defendant. If defense
counsel opposes a finding of incompetence, the court must
appoint two experts: one chosen by the defense, one by the
prosecution. An examining psychiatrist or psychologist must
evaluate the defendant's alleged mental disorder and the
defendant's ability to understand the proceedings and assist
counsel, as well as address whether anitpsychotic medication
is medically appropriate. (Pen. Code, § 1369, subd. (a).)
The court may appoint other kinds of experts, as appropriate, to
assist with a determination of competency. For instance, some
courts appoint attorneys with expertise in the area of
incompetency to testify as experts after examining the
defendant, especially when the defendant's ability to
cooperate with counsel is at issue or when there are
especially complex legal issues that the defendant needs to
understand.
3)Incompetence to Stand Trial is Determined in the Course of an
Adversarial Process with Checks and Balances beyond the
Evaluators:
The existing process to determine Incompetent to Stand Trial
(IST) 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, and a defense attorney. To the extent the
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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 Not Guilty be Insanity (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.
The fact that the psychiatrists, psychologists, or other experts
appointed by the court are providing opinions within an
adversarial setting ensures that the opinions are being
screened by the defense, the prosecution and the court. To
the extent that those parties relying on the opinions of the
experts, don't have confidence in the quality of the
evaluations, they can take appropriate action prevent the
appointment of such experts in the future.
4)Current Standards for Training and Education of Experts Used
to Evaluate Mental Incompetence: Current law allows courts to
appoint a "psychiatrist, licensed psychologist, or other
expert the court may deem appropriate" to examine a defendant
regarding his mental competence. (Pen. Code, § 1369, subd.
(a).)
Current law does not provide further guidance concerning the
education and training required before a psychiatrist or
licensed psychologist can be appointed to conduct an
evaluation of a defendant's mental competence. However, there
are education and training requirements required to become a
psychiatrist or a licensed psychologist. Any psychiatrist
appointed by the court has graduated medical school, passed
the medical boards, and completed the requisite training to be
a psychiatrist. Likewise, a licensed psychologist has met the
appropriate education and training requirements to become a
licensed psychologist.
This bill provides a process to establish educational and
training requirements that might be particular to conducting
mental competence evaluations that might not otherwise be
addressed in the training and education for psychiatrists or
psychologists.
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5)Argument in Support: According to AFSCME, Local 2620, "AB
1962 which requires psychiatrists and licensed psychologists
to have forensic experience when examining the mental
competence of a defendant. The evaluation of a defendant to
determine whether they are fit to stand trial, is inherently
forensic in nature. Naturally, having an expert with forensic
experience is necessary in order to make an accurate
evaluation. Thus, in mandating forensic experience,
psychiatrists and psychologists will be able discern the
difference between a defendant who is truly incompetent to
stand trial, and a defendant abusing the California
correctional system to receive a less restrictive punishment
(malingerers), and in turn placing putting more lives in
danger. These patients do not pose a threat to public safety
and cease to benefit from treatment with the State Hospitals."
6)Related Legislation:
a) AB 1237 (Brown), would have required the 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.
This bill would also have required 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. Never heard in Assembly Public
Safety.
7)Prior Legislation:
a) AB 2543 (Levine), Legislative Session of 2013-2014,
would have required the State Department of State Hospitals
to establish a pool of psychiatrists and psychologists with
forensic skills who would evaluate a defendant who pleads
not guilty by reason of insanity or who may be mentally
incompetent. Held in Assembly Public Safety.
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REGISTERED SUPPORT / OPPOSITION:
Support
Union of American Physicians and Dentists (Sponsor)
American Federation of State, County and Municipal Employees,
Local 2620
California Association of Psychiatric Technicians
California Attorneys for Criminal Justice
Peace Officers Research Association of California
Opposition
None
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744