BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1962|
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THIRD READING
Bill No: AB 1962
Author: Dodd (D)
Amended: 6/6/16 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 79-0, 4/21/16 (Consent) - See last page for
vote
SUBJECT: Criminal proceedings: mental competence
SOURCE: AFL-CIO
Union of American Physicians and Dentists
DIGEST: This bill directs 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;
and 3) to provide that the court shall appoint IST experts who
meet the guidelines, or experts with equivalent experience and
skills, as specified.
ANALYSIS:
AB 1962
Page 2
Existing law:
1)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).)
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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Page 3
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
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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).)
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).)
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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).)
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).)
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Page 6
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).)
6)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.
7)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:
1)Provides that DSH shall, on or before July 1, 2017, adopt
guidelines for education and training standards for a
psychiatrist or licensed psychologist to be considered for
appointment by the court to evaluate a defendant who is
possibly IST.
2)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
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Page 7
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.
3)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.
Background
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,
licensed psychologist or other expert.
An individual who is incompetent to stand trial (IST)
lacks the mental competency required to participate in
legal proceedings. There is a monthly statewide IST
waitlist that averages between 200 and 300 defendants who
are waiting for an available bed in a state hospital so
they can undergo evaluation treatment.
It is estimated that between 15 and 20% of patients that
are IST 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 for court-appointed
psychologists and psychiatrists in IST cases. 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.
According to DSH, the state hospital patient population has
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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 (Not
Guilty by Reason of Insanity), mentally disordered offenders
(MDO), and sexually violent predators. DSH housed and 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.
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.
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 patients is ongoing.
There appear to be federal court orders concerning the waitlist
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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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Workgroup/guidelines: Minor and absorbable one-time costs
(General Fund) to the DSH to convene the workgroup and develop
the education and training guidelines. Minor, absorbable costs
to workgroup members including the Judicial Council.
DSH caseload: Potential future decrease in DSH commitment
costs (General Fund) to the extent the provisions of this bill
result in fewer patients being unnecessarily referred to for
treatment. While the caseload impact cannot be determined with
certainty, for every DSH patient found competent to stand
trial in lieu of IST, DSH could avoid treatment costs of about
$200,000 (General Fund) per patient per year. Staff notes
reducing the number of IST referrals would not necessarily
reduce the DSH budget due to the existing waitlist for DSH
beds.
State prisons/County jails: Potential future increase in
state (General Fund) and local (Local Funds) incarceration
costs for commitments to state prison and county jail to the
extent persons that otherwise would have been found IST are
instead found competent and subject to a trial resulting in a
felony or misdemeanor conviction.
Court-appointed evaluator costs: Potential increase in costs
(General Fund) to the courts for more experienced IST
evaluators resulting from the imposition of the education and
training standards as yet to be established by the DSH. Based
on an estimated 15,000 mental competency filings statewide
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each year, even a small percentage of filings that include IST
evaluations could increase overall costs in the hundreds of
thousands of dollars annually.
Court workload: Potential future cost savings (General Fund)
to the extent additional court hearings are not required in
cases when a non-licensed/authorized psychiatrist or
psychologist is challenged for court-appointment.
SUPPORT: (Verified8/11/16)
AFL-CIO (co-source)
Union of American Physicians and Dentists (co-source)
American Federation of State, County and Municipal Employees
Local 2620
California Association of Psychiatric Technicians
California District Attorneys Association
California Psychiatric Association
Judicial Council of California
Peace Officers Research Association of California
OPPOSITION: (Verified8/11/16)
None received
ASSEMBLY FLOOR: 79-0, 4/21/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth
Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper,
Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Patterson, Quirk, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
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Page 11
Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Ridley-Thomas
Prepared by:Jerome McGuire / PUB. S. /
8/15/16 20:17:24
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