BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1962 Hearing Date: June 21, 2016
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|Author: |Dodd |
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|Version: |June 6, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Criminal Proceedings: Mental Competence
HISTORY
Source: Union of American Physicians and Dentists; American
Federation of State, County and Municipal Employees
(AFSCME), Local 2620
Prior Legislation:SB 1412 (Nielsen) - Ch. 759, Stats. 2014
AB 2212 (Fuentes) - Ch. 671Stats. 2010
AB 366 (Allen) - Ch. 654, Stats. 2011
SB 1794 (Perata) - Ch. 486, Stats. 2004
Support: California District Attorneys Association; American
Federation of Labor and Congress of Industrial
Organizations (AFL-CIO); California Association of
Psychiatric Technicians; California Psychiatric
Association; Peace Officers Research Association of
California; Judicial Council of California
Opposition:None known
Assembly Floor Vote: 79 - 0
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PURPOSE
The purpose of this bill is 1) to direct the Department of State
Hospitals (DSH) to adopt guidelines for training and education
standards for a psychiatrist or psychologist appointed to
evaluate a defendant who may be incompetent to stand trial
(IST); 2 ) to direct DSH to convene a workgroup of interested
and knowledgeable entities, as specified, to develop the
guidelines; 3) to provide that the court shall appoint IST
experts who meet the guidelines, or experts with equivalent
experience and skills, as specified.
Existing law provides that a 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).)
Existing law 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).)
Existing law 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).)
Existing law 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).)
Existing law 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,
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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
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
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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
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).)
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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).)
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).)
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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).)
Existing law specifies that a person cannot be tried, or have
his or her probation, mandatory supervision, postrelease
community supervision, or parole revoked while that person is
mentally incompetent.
Existing law states that an incompetent defendant charged with a
violent felony (Pen. Code § 667.5, subd. (c), may not be
delivered to a state hospital or treatment entity that does not
have a secured perimeter or a locked and controlled treatment
facility. The court must determine that public safety will be
protected. (Pen. Code § 1370, subd. (a)(1)(D).)
This bill provides that the State Department of State Hospitals
(DSH) shall, on or before July 1, 2017, adopt guidelines for
education and training standards for a psychiatrist or licensed
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psychologist to be considered for appointment by the court to
evaluate a defendant who is possibly IST
This bill directs DSH to convene a workgroup comprised of the
Judicial Council 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
accrediting bodies for psychologists and psychiatrists, and
other interested stakeholders to develop the guidelines for
education and training standards for psychiatrist and
psychologists in IST cases.
This bill provides that the court shall appoint IST experts who
meet the established guidelines, or experts with equivalent
experience and skills. If there is no reasonably available
expert who meets the criteria or who has equivalent
qualifications, the court may appoint an expert who does not
meet the guidelines.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
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In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1.Need for This Bill
According to the author:
Existing law prohibits a person from being tried or
adjudged to punishment if that person is deemed
mentally incompetent. Existing law establishes a
process by which a defendant's mental competency is
evaluated, which includes requiring the court to
appoint a psychiatrist or licensed psychologist, and
any other expert the court may deem appropriate.
By definition, an individual who is incompetent to
stand trial (IST) lacks the mental competency required
to participate in legal proceedings. In California,
there is a monthly statewide waitlist that averages
between 200 and 300 individuals alleged to have
committed felonies who the courts have deemed mentally
incompetent to stand trial. These individuals are
waiting for a bed to become available in a state
hospital so they can undergo evaluation and receive
treatment to restore them to competency.
It is estimated that between 15 and 20 percent of
patients that are deemed mentally incompetent and
unable to stand trial, and thereby sent to a state
hospital, are malingering. Malingerers are patients
who fake mental illness - specifically, in this case,
to avoid going to prison. Malingerers in state
hospitals are threats to both hospital staff and
patients.
Currently, there are no standards that court-appointed
psychologists and psychiatrists must meet specific to
evaluating mental competence and identifying
malingering. It is important to aid the Department of
State Hospitals, by ensuring correct diagnoses of
patients. Having qualified experts diagnosing
defendants will help reduce violence in state
hospitals, while ensuring that those who require
hospitalization receive needed help and treatment.
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2.Violence in DSH Facilities - Asserted Links to Substandard
Evaluations of Potential Forensic Patients by Appointed
Experts in IST Cases
The sponsors have stated that a significant percentage of the
IST defendants in DSH who are faking their symptoms and that
these defendants are particularly likely to be violent. The
sponsors have concluded that this problem is caused or
exacerbated by substandard evaluations of potential ISTs by
appointed experts at the trial court level. The sponsors argue
that raising the standards for expert evaluators will reduce
violence in DSH facilities by limiting the number of malingering
IST patients committed for treatment.
Violence among the IST population is part of an ongoing problem
with violence in DSH facilities. According to DSH, in 2013,
there were a total of 3,344 patient-on-patient assaults and
2,586 patient-on-staff assaults at state hospitals. Of the
total patient population, 62 percent are non-violent, 36 percent
committed 10 or fewer violent acts, and 2 percent committed 10
or more violent acts. Of all the violent acts committed, 65
percent are committed by those with 10 or fewer violent acts,
and 35 percent are committed by those with 10 or more violent
acts. A small subset of the population, 116 people, commits the
majority of aggressive acts.
The Division of Occupational Safety and Health, known as
Cal/OSHA, within the California Department of Industrial
Relations, has had significant and ongoing involvement with DSH
as a result of insufficient protections for staff. According to
a Los Angeles Times article from March 2, 2012, Cal/OSHA has
issued nearly $100,000 in fines against Patton and Atascadero,
alleging that they have failed to protect staff and have
deficient alarm systems. These citations are similar to
citations levied in 2011 against Napa and Metropolitan.
Cal/OSHA found an average of 20 patient-caused staff injuries
per month at Patton from 2006 through 2011 and eight per month
at Atascadero from 2007 through 2011, including severe head
trauma, fractures, contusions, lacerations, and bites. DSH
states they have been working closely with Cal/OSHA to resolve
the issues and take all necessary corrective measures to protect
staff at all of the state hospital facilities.
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3.Wait List for IST Patients to be Treated by DSH - Consequences
and Litigation
An IST jail inmate often must wait a substantial period of time
before being admitted to DSH for treatment. An untreated IST
defendant could decompensate and become more difficult to return
to competency. Such a defendant would also be more likely to
need to be placed in a conservatorship if not timely and
adequately treated.
Numerous court cases have considered treatment delays for IST.
The Second District Court of Appeal in Freddy Mille v. Los
Angeles County (2010)182 Cal.App. 4th 635, 649-650, ruled that a
person determined to be IST must be transferred to a state
hospital within a "reasonable amount of time" to allow DSH to
report to the trial court on the likelihood of restoring the IST
to competence. Penal Code Section 1370 (b)(1) requires the
initial report to be made within 90 days. Disability Rights
California has reported that this 90-day report timeline is
routinely missed. The IST defendant in Mille was only
transferred to DSH on the 84th day following the finding of his
incompetence.
Litigation on delays in treatment for IST is ongoing. In
several counties, attorneys have asked the court for orders to
show cause and some have filed class action lawsuits. There
appear to be federal court orders concerning the waitlist for
IST defendants to be admitted to DSH. The ACLU has filed a
lawsuit in Alameda County - Stiavetti v. Ahlin. On April 26,
2016, the court dismissed a motion by DSH to strike the
complaint. The court also overruled a demurrer, which is
essentially an argument that a complaint or lawsuit does not
state a valid legal claim.
4.Background on Change in DSH Population to Nearly Only Forensic
Patients - Those Committed Through or From the Criminal
Justice System
According to DSH, the state hospital patient population has
shifted over the past 20 years, from a 20 percent forensic
population in 1994 to the current 96 percent. Forensic patients
are committed for a variety of reasons, including IST, NGI,
mentally disordered offenders (MDO), and SVP. DSH housed and
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treated approximately 9,400 patients in 2014. According to the
April 4, 2016 weekly census there were approximately 6,730
patients in DSH, excluding those on leave. Of the total, 1,200
were MDO patients and 1,381 were NGI patients<1>
The 2104 DSH Violence Report<2>, published in October of 2105,
included the following summary:
During 2014, the Department of State Hospital's (DSH)
five freestanding hospitals treated almost 9400
patients (depicted above in Figure 1). While most of
these patients were not violent (shown in green above,
approximately 77%), violent patients comprised 23% of
those treated in 2014. Of the violent patients, a very
small number had 10 or more violent acts during 2014
(designated as "repeatedly violent patients"). While
numbering only 123 patients total during 2014, these
repeatedly violent patients were responsible for 36.6%
of all the assaults on patients as well as staff
assaults during 2014.
Existing law includes procedures and substantive rules for
involuntary commitment to DSH of a person from the criminal
justice system of a defendant who has a mental disorder that
renders him or her incompetent to stand trial or too dangerous
to release without treatment. The major categories of forensic
patients are described below:
Incompetent to Stand Trial: A criminal defendant who, because
of a mental disorder, can neither understand the court process
nor assist his attorney in conducting his defense is
incompetent to stand trial or face punishment. An IST
defendant is returned to court upon restoration of competency.
(Pen Code § 1367 et seq.)
Not Guilty by Reason of Insanity (NGI): One is NGI if he or
she has a mental disorder rendering him or her incapable of
knowing or understanding the nature and quality of the charged
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<1> There are also 1,444 IST patients and 896 SVP patients,
apparently including those pending trial, in DSH as of April 4,
2016
<2>
http://www.dsh.ca.gov/Publications/docs/Docs/Violence_Report_2015
.pdf
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act, or he or she could not distinguish right from wrong at
the time of the offense. (Pen. Code §§ 25 and 1026 et seq.)
o An NGI defendant is committed to a state hospital for
treatment. He or she can be held as long as the sentence
for crime for which the not guilty by reason of insanity
verdict was rendered.
o An NGI defendant can petition for release on the grounds
that his or her sanity has been restored. The NGI
defendant has the burden of proof in a hearing in the
superior court in which the defendant was tried. (Pen.
Code §§ 1026, subd. (b), 1026.2 )
o An NGI patient can be confined for as long as the
maximum sentence for the underlying offense. At the
expiration of the normal maximum confinement time, the
commitment can be extended if the person's mental disorder
makes him or her a danger of substantial harm to others.
(Pen. Code § 1026.5, subd. (b).)
Mentally Disordered Offenders (MDO)
An MDO is an inmate who committed a specified violent crime that
was caused or exacerbated by his or her mental disorder and who
cannot be safely released into society. An MDO is involuntary
committed for treatment during parole. The commitment can be
extended without limitation in one-year increments. (Pen. Code
§ 2960 et seq.)
Sexually Violent Predators
An SVP is a person who has committed a specified sex crime and
has a mental disorder that renders him likely to violent sex
crimes if released. At the time an SVP would otherwise be
released on parole, he is indeterminately committed for
treatment in a state hospital. Annual evaluations are performed
to assess the person's status as an SVP.
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