BILL ANALYSIS Ó
AB 1962
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
1962 (Dodd)
As Amended June 6, 2016
Majority vote
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|ASSEMBLY: |79-0 |(April 21, |SENATE: |36-0 |(August 18, |
| | |2016) | | |2016) |
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Original Committee Reference: PUB. S.
SUMMARY: Requires the establishment of guidelines on education
and training for psychologists and psychiatrists to be appointed
by the court to determine a defendant's mental competence.
The Senate amendments:
1)Specify that the court shall appoint experts who meet the
guidelines established in accordance with this subdivision or
experts with equivalent experience and skills.
2)Give the court the discretion to appoint an expert who does
not meet the guidelines, if there is no reasonably available
expert who meets the guidelines or who has equivalent
experience and skills.
3)Make technical, non-substantive changes.
AB 1962
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EXISTING LAW:
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.
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.
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.
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.
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;
b) In any case where the defendant or the defendant's
counsel informs the court that the defendant is not seeking
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a finding of mental incompetence, the court shall appoint
two psychiatrists, licensed psychologists, or a combination
thereof;
c) One of the psychiatrists or licensed psychologists may
be named by the defense and one may be named by the
prosecution;
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;
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;
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;
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
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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, 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;
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) If the defense declines to offer any evidence in support
of the allegation of mental incompetence, the prosecution
may do so;
bb) The prosecution shall present its case regarding the
issue of the defendant's present mental competence;
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;
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;
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
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preponderance of the evidence that the defendant is
mentally incompetent. The verdict of the jury shall be
unanimous; and
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.
AS PASSED BY THE ASSEMBLY, this bill would have:
1)Required 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)Required 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.
FISCAL
EFFECT: According to the Senate Appropriations Committee:
1)Workgroup/guidelines: Minor and absorbable one-time costs
(General Fund) to the Department of State Hospitals (DSH) to
convene the workgroup and develop the education and training
guidelines. Minor, absorbable costs to workgroup members
including the Judicial Council.
2)DSH caseload: Potential future decrease in DSH commitment
costs (General Fund) to the extent the provisions of this
measure result in fewer patients being unnecessarily referred
to the DSH for treatment. While the caseload impact cannot be
determined with certainty, for every DSH patient found
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competent to stand trial in lieu of Incompetent to Stand Trial
(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.
3)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 resumed trial
resulting in a felony or misdemeanor conviction.
4)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
each year, even a small percentage of filings that include IST
evaluations could increase overall costs in the hundreds of
thousands of dollars annually.
5)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.
*Trial Court Trust Fund
COMMENTS: "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% of the patients referred to them
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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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
FN: 0004179