BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1962


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          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