BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 2262


                                                                     Page A


          Date of Hearing:  March 29, 2016
          Counsel:               David Billingsley


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                       2262 (Levine) - As Amended  March 28, 2016




          SUMMARY:  Allows the court to order a defendant to serve all, or  
          part, of their state prison or county jail sentence in a  
          residential mental health facility, when a defendant establishes  
          that they meet specified criteria regarding mental illness.   
          Specifically, this bill:   

          1)Permits a defendant, who at any prior time was eligible for  
            public mental health services due to serious mental illness,  
            or who is currently, or at any prior time was, eligible for  
            Social Security Insurance due to a diagnosed mental illness,  
            to petition the court for a sentence that includes mental  
            health treatment.

          2)Specifies that the petition shall be filed after the  
            defendant's plea or conviction, but before his or her  
            sentencing.

          3)Specifies that the defendant shall bear the burden of  
            establishing by a preponderance of the evidence that he or she  
            meets the specified criteria regarding mental illness. 











                                                                    AB 2262


                                                                     Page B



          4)Authorizes the court, upon a determination that a defendant  
            has met the specified criteria regarding mental illness, and a  
            determination that it is in the public interest, to order the  
            one or more of the following:

             a)   That the defendant serve, if the defendant agrees, all  
               or a part of his or her sentence in a residential mental  
               health treatment facility instead of in the state prison or  
               county jail.  Defendants with a current conviction for a  
               violent felony, as specified, would not qualify.

             b)   The California Department of Corrections and  
               Rehabilitation (CDCR) or the county jail to place the  
               defendant in a mental health program within the state  
               prison or county jail system, respectively, at a level of  
               care determined to be appropriate by mental health staff,  
               within 30 days, of the defendant's placement in the state  
               prison or county jail.

             c)   CDCR or the county jail to prepare a postrelease mental  
               health treatment plan six months prior to the defendant's  
               release to parole or postrelease community supervision  
               which specifies the manner in which the defendant will  
               receive mental health treatment services following that  
               release, and shall address, if applicable and in the  
               discretion of the court, medication management, housing,  
               and substance abuse treatment.

          5)The defendant or prosecutor may, at any time, petition the  
            court to recall a sentence that includes a mental health  
            treatment order issued under these guidelines and the court  
            may resentence the defendant, provided the defendant gets  
            credit for the time he or she served and the court does not  
            impose sentence longer than originally imposed.

          6)Specifies that a re-sentence may, but is not required, to  
            include other mental health treatment, as specified.












                                                                    AB 2262


                                                                     Page C


          7)Specifies that the defendant has the right to counsel for  
            these proceedings.

          EXISTING LAW:  

          1)Finds and declares that the provision of probation services is  
            an essential element in the administration of criminal  
            justice. The safety of the public, which shall be a primary  
            goal through the enforcement of court-ordered conditions of  
            probation; the nature of the offense; the interests of  
            justice, including punishment, reintegration of the offender  
            into the community, and enforcement of conditions of  
            probation; the loss to the victim; and the needs of the  
            defendant shall be the primary considerations in the granting  
            of probation. (Pen. Code, § 1202.7.)

          2)Specifies that "probation" means "the suspension of the  
            imposition or execution of a sentence and the order of  
            conditional and revocable release in the community under the  
            supervision of a probation officer." (Pen. Code, § 1203(a).) 

          3)Specifies that "conditional sentence" means "the suspension of  
            the imposition or execution of a sentence and the order of  
            revocable release in the community subject to conditions  
            established by the court without the supervision of a  
            probation officer." (Pen. Code, § 1203(a).)

          4)Provides that the court, in granting probation, may suspend  
            the imposing or the execution of the sentence and may direct  
            that the suspension may continue for a period of time not  
            exceeding the maximum possible term of the sentence, except as  
            specified, and upon those terms and conditions as it shall  
            determine. (Pen. Code, § 1203.1.)

          5)States that the court may impose and require any or all of the  
            terms of imprisonment, fine, and conditions, and other  
            reasonable conditions, as it may determine are fitting and  
            proper to the end that justice may be done and for the  
            rehabilitation of the probationer, and that should the  











                                                                    AB 2262


                                                                     Page D


            probationer violate any of the terms or conditions imposed by  
            the court in the matter, it shall have authority to modify and  
            change any and all the terms and conditions and to reimprison  
            the probationer in the county jail, as specified. (Pen. Code,  
            § 1203.1, subd. (j).)

          6)Specifies that when it appears to the person in charge of a  
            jail, or juvenile detention facility, or to any judge of a  
            court in the county in which the jail or juvenile detention  
            facility is located, that a person in custody in that jail or  
            juvenile detention facility may be mentally disordered, he or  
            she may cause the prisoner to be taken to a facility for  
            72-hour treatment and evaluation. (Pen. Code, § 4011.6.)

          7)States that if a prisoner is detained in, or remanded to, a  
            mental health facility, the facility shall transmit a report,  
            which shall be confidential, to the person in charge of the  
            jail or juvenile detention facility or judge of the court who  
            caused the prisoner to be taken to the facility and to the  
            local mental health director or his or her designee,  
            concerning the condition of the prisoner. (Pen. Code, §  
            4011.6.)


          8)Specifies that if the prisoner is detained in a mental health  
            facility, the time passed in the facility shall count as part  
            of the prisoner's sentence. 

          9)States that if the prisoner is to be released from the  
            facility before conclusion of their sentence, the professional  
            person in charge shall notify the local mental health  
            director, counsel for the prisoner, the prosecuting attorney,  
            and the person in charge of the jail or juvenile detention  
            facility, who shall send for, take, and receive the prisoner  
            back into the jail or juvenile detention facility. (Pen. Code,  
            § 4011.6.)

          10)Provides that a defendant, either charged with or convicted  
            of a criminal offense, or a minor alleged to be within the  











                                                                    AB 2262


                                                                     Page E


            jurisdiction of the juvenile court, may be concurrently  
            subject to mental health detention as specified by law under  
            the Welfare and Institutions Code. (Pen. Code, § 4011.6.)

          11)States that upon conviction of any felony in which the  
            defendant is sentenced to state prison, and the court makes  
            any of the findings listed below, a court shall, in addition  
            to any other terms of imprisonment, fine, and conditions,  
            recommend in writing that the defendant participate in a  
            counseling or education program having a substance abuse  
            component while imprisoned:

             a)   That the defendant at the time of the commission of the  
               offense was under the influence of any alcoholic beverages;  
               (Pen. Code, § 1203.096, subd. (b)(1).)

             b)   That the defendant at the time of the commission of the  
               offense was under the influence of any controlled  
               substance; (Pen. Code, § 1203.096, subd. (b)(2).)

             c)   That the defendant has a demonstrated history of  
               substance abuse; and (Pen. Code, § 1203.096, subd. (b)(3).)

             d)   That the offense or offenses for which the defendant was  
               convicted are drug related. (Pen. Code, § 1203.096, subd.  
               (b)(4).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Jails and  
            prisons have become California's de facto mental health  
            facilities with those who are mentally ill being far more  
            likely to be incarcerated than to be in a psychiatric  
            hospital. Incarcerating those with mental illness does not  
            make sense from an outcomes or a fiscal stand point. Studies  
            have found that individuals who participate in mental health  
            courts reoffend one third of the time than those who do not  











                                                                    AB 2262


                                                                     Page F


            and that participant's show significant improvement in quality  
            of life. Furthermore, mental health courts have been  
            demonstrated to save $7 in costs for every $1 spent. It costs  
            $51,000 a year to house an inmate, and $20,412 to house and  
            treat a person with mental illness. AB 1006 gives the court  
            the ability to consider the presence of a mental illness in  
            criminal sentencing."

          2)Prevalence of Mentally Ill Offenders:  The Department of  
            Corrections and Rehabilitation's (CDCR) Council on Mentally  
            Ill Offenders (COMIO) regards the growing number of inmates  
            suffering from mental health issues as a pressing concern.<1> 

          Nationally, a 2009 American Psychiatric Association study "found  
            that 14.5% of male and 31.0% of female inmates recently  
            admitted to jail have a serious mental illness" which is three  
            to six times higher than rates found in the general  
            population.  "A serious mental illness" included major  
            depressive disorder, depressive disorder not otherwise  
            specified, schizophrenia spectrum disorder, schizoaffective  
            disorder, schizophreniform disorder, brief psychotic disorder,  
            delusional disorder, and psychotic disorder not otherwise  
            specified.<2>

          In 2009, the Division of Correctional Health Care Services for  
            the CDCR estimated that 23 percent of California's prison  
            inmates have a serious mental illness.<3>  According to the  
            Berkeley Center for Criminal Justice, an estimated "40 to 70  
            percent of youth in the California juvenile justice system  
          ---------------------------
          <1> http://www.cdcr.ca.gov/comio/Legislation.html
          <2> Steadman, H., Osher, F. C., Robbins, P. C., Case, B., &  
          Samuels, S. (2009).  Prevalence of serious mental illness among  
          jail inmates. Psychiatric Services, 60(6), 761-765.  
          .
          <3> Administrative Office of the Courts, Center for Families,  
          Children & the Courts.  (2011).  Task Force for Criminal Justice  
          Collaboration on Mental Health Issues: Final Report.  
          . 










                                                                    AB 2262


                                                                     Page G


            have some mental health disorder or illness," with 15 to 25  
            percent considered severely mentally ill.  Based on these  
            numbers, youth in California's juvenile justice system are two  
            to four times more likely to be in need of mental health care  
            than California youth generally.<4>  The Bureau of Justice  
            Statistics reported in 2006 that 74 percent of mentally ill  
            state prisoners and 76 percent of mentally ill local jail  
            inmates also met the criteria for substance dependence or  
            abuse indicating a larger issue with co-occurring disorders  
            among mentally ill offenders.<5>  

          3)Increased Rates of Recidivism Among Mentally Ill Offenders:  A  
            2012 review conducted by the Utah Criminal Justice Center  
            found that released inmates with serious mental illness  
            experience poorer outcomes overall as they are "twice as  
            likely to have their probation or parole revoked, are at an  
            elevated risk for rearrest, incarceration, and homelessness,  
            lack skills to obtain and sustain employment, and have higher  
            rates of medical problems." <6> 

          In 2009, the Council of State Governors Justice Center released  
            a report entitled Improving Outcomes for People with Mental  
            Illnesses under Community Corrections Supervision, which  
            stated that the reasons for increased recidivism among mental  
          ---------------------------
          <4> Berkeley Center for Criminal Justice. (2010). Juvenile  
          Justice Policy Brief Series: Mental Health Issues in  
          California's Juvenile Justice System.  
          
          <5> Treatment Advocacy Center & National Sheriffs' Association.  
          (2010). More Mentally Ill Persons Are in Jails and Prisons Than  
          Hospitals: A Survey of States.  
          
          <6> University of Utah, Utah Criminal Justice Center. (2012).  
          Treating Offenders with Mental Illness: A Review of the  
          Literature.  
          .










                                                                    AB 2262


                                                                     Page H


            ill offenders may be multifaceted: 

          Once people with mental illnesses are finally released, it is  
            often extremely difficult for them to successfully transition  
            from incarceration to the community.  Their mental illnesses  
            may be linked to community corrections supervision failure in  
            a number of ways.  Skeem and Loudon have characterized these  
            links as being direct, indirect, or spurious. 

          First, mental illnesses may directly result in probation or  
            parole revocation. For example, an individual may not access  
            treatment, leading him or her to decompensate, behave in a  
            bizarre or dangerous manner in public, get arrested for this  
            behavior, and have his or her probation revoked. 

          Second, mental illnesses may indirectly result in revocation.   
            For example, an individual with clinical depression may have  
            impaired functioning that prevents him or her from maintaining  
            employment and paying court ordered fines, which are standard  
            conditions of release.  Notably, many people with mental  
            illnesses returning to the community from jail or prison lack  
            financial or social supports.  Some were receiving Medicaid  
            and other forms of public assistance at the time of their  
            arrest, and these benefits are typically terminated rather  
            than suspended during incarceration, and rarely reinstated  
            immediately upon release.  In short, there is often no safety  
            net to compensate for functional impairments that may place  
            individuals with mental illnesses at risk for revocation. 

          Third, mental illnesses may not result in revocation.  Instead,  
            the relationship between the two may be spurious-that is, more  
            apparent than real-because a third variable associated with  
            mental illness causes revocation.  For example, an individual  
            with bipolar disorder may be at risk of committing a new  
            offense not because of his or her mental illness, but because  
            of criminogenic attitudes or affiliation with antisocial  
            peers.  Alternatively, an individual with psychosis may be  
            monitored exceptionally closely and revoked readily by his or  
            her probation officer, given that traditional supervision  











                                                                    AB 2262


                                                                     Page I


            strategies often reflect misconceptions about (and stigma  
            associated with) mental illness.<7>

          CDCR data shows higher rates of recidivism in inmates identified  
            with mental health issues when compared to those without.   
            Upon release, inmates exhibiting mental health problems are  
            assigned one of two mental health services designations:  
            Enhanced Outpatient Program (EOP) or Correctional Clinical  
            Case Management System (CCCMS).  Inmates with severe mental  
            illness expected to experience difficulty transitioning out of  
            corrections are designated as EOP and receive treatment at a  
            level similar to day treatment services in the community,  
            while inmates receiving CCCMS services are housed within the  
            general population and participate on an outpatient basis.  In  
            the 2012 CDCR Outcome Evaluation Report, 76.7 percent of  
            first-release inmates with an EOP designation recidivated  
            after three years, compared to lower rates found in CCCMS  
            designees (70.6 percent) and those without a designation (62  
            percent).<8> 

          According to a 2005 CDCR report, mental health issues "comprised  
            the single most critical gap in juvenile justice services. ...  
             According to those surveyed, the number of at-risk youth and  
            youthful offenders with mental health problems continues to  
            increase as does the seriousness of their mental illnesses.   
            The only thing not increasing is the resources to treat and  
            confine these troubled and troubling youth."  Even if juvenile  
            offenders receive assistance, absence of treatment after  
            release may contribute to a path of behavior that includes  
            continued delinquency and adult criminality.<9>
          
          4)Under Existing Law, Judges Have Discretion to Impose  
          ---------------------------
          <7>  
          https://s3.amazonaws.com/static.nicic.gov/Library/023634.pdf.
          <8>  
          http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/A 
          RB_FY_0708_Recidivism_Report_10.23.12.pdf.
          <9> California Department of Corrections and Rehabilitation.  
          (2005). Status Report on Juvenile Justice Reform. 










                                                                    AB 2262


                                                                     Page J


            Conditions on Felony or Misdemeanor Cases When a Defendant is  
            Placed on Probation:  Probation is the suspension of the  
            imposition or execution of a sentence and the conditional  
            release of a defendant into the community under the direction  
            of a probation officer.  "Probation is generally reserved for  
            convicted criminals whose conditional release into society  
            poses minimal risk to public safety and promotes  
            rehabilitation."  (People v. Carbajal (1995) 10 Cal.4th  
            1114,1120.)  Probation can be conditioned on serving a period  
            of incarceration in county jail and on conditions reasonably  
            related to the offense.  Certain convicted felons are not  
            eligible for probation.  Other felons are presumptively  
            ineligible for probation, but may be granted probation in an  
            unusual case. 

          The primary considerations in granting probation are:  (1)  
            Public safety; (2) the nature of the offense; (3) the  
            interests of justice; (4) the victim's loss; and (5) the  
            defendant's needs. (Pen. Code, § 1202.7.) 

          Courts have broad general discretion to fashion and impose  
            additional probation conditions that are particularized to the  
            defendants. People v. Smith (2007) 152. Cal.App.4th 1245,  
            1249. Courts may impose any "reasonable" conditions necessary  
            to secure justice and assist the rehabilitation of the  
            probationer. Under existing law, a judge can impose a  
            condition of probation that a defendant spend a certain amount  
            of time in a residential mental health facility in conjunction  
            with a jail sentence, or as an alternative to a jail sentence.  
            In imposing probation conditions related to mental health, the  
            court is not limited to ordering residential mental health  
            treatment.  The court can order outpatient mental health  
            treatment, or other mental health directives the court finds  
            appropriate.  When a defendant is placed on probation the  
            court retains jurisdiction over the case to ensure the  
            defendant complies with probation.   The court has the power  
            to impose further punishment if the defendant does not comply  
            with probation.












                                                                    AB 2262


                                                                     Page K


          5)California's Current Sentencing Scheme Does Not Provide an  
            Option for a Judge to Impose a Split Prison Sentence: Under  
            California's sentencing scheme, if a person is sent to state  
            prison, they are sentenced for a determinate amount of time.   
            Once an individual is sentenced to State Prison they are  
            committed to the custody of CDCR.  Once CDCR has custody of a  
            defendant, CDCR, not the court, decides where and in what type  
            of custodial setting the defendant serves their state prison  
            term.

          When a court sentences a defendant to state prison, the court  
            loses jurisdiction over the individual. 

            "If the judgment is for imprisonment, 'the defendant must  
            forthwith be committed to the custody of the proper officer  
            and by him or her detained until the judgment is complied  
            with.' The sheriff, upon receipt of the certified abstract of  
            judgment "or minute order thereof," is required to deliver the  
            defendant to the warden of the state prison together with the  
            certified abstract of judgment or minute order.  'It is clear  
            then that at least upon the receipt of the abstract of the  
            judgment by the sheriff, the execution of the judgment is in  
            progress.' 

            "Thus, for example, in People v. Banks, we considered the  
            effect of a stay of execution in the context of the trial  
            court's authority to grant probation for certain offenses.  We  
            observed that upon entry of a guilty plea, if the trial court  
            chooses to retain jurisdiction under the statutes dealing with  
            probation, it may pronounce judgment and suspend its execution  
            by refraining from issuing a commitment of the defendant to  
            the prison authority.  We stated: "The critical requirement  
            for control over the defendant and the rest of the action is  
            that the court shall not have surrendered its jurisdiction in  
            the premises by committing and delivering the defendant to the  
            prison authority." People v. Karaman, (1992) 4 Cal.4th 335,345  
            (citation omitted)(italics added.)

            Because the court loses jurisdiction over a defendant when  











                                                                    AB 2262


                                                                     Page L


            they are sentenced to state prison, it is unclear who would  
            have the authority to enforce transfer of a defendant from a  
            mental health facility to a state prison if treatment in a  
            residential mental health treatment was ordered for a portion  
            of the defendant's sentence at the beginning of the sentence.  
            The same problem would exist if the court sentenced the  
            defendant to begin their term with state prison, but directed  
            the later part of the state prison term to be served in a  
            mental health facility.

            For the same jurisdictional reasons, it is unclear what  
            remedies would be available if a defendant left a residential  
            mental health treatment facility after being sentenced to such  
            a facility for a portion of, or all of, a state prison  
            sentence. 

          6)Logistical Difficulties of Post Sentencing Procedures to  
            Petition the Court to Resentence the Defendant:  The proposed  
            legislation allows for the defendant or prosecutor to petition  
            the resentence the defendant, and provides that defendants  
            have a right to counsel for those proceedings.  From a  
            practical standpoint, appointing counsel for an individual who  
            is in a residential mental health treatment facility presents  
            challenges for a system where most of the defendants are  
            represented by Public Defender Offices.   Public Defender  
            Offices are accustomed to visiting and representing clients in  
            custody at the local county jail.  To see and represent  
            clients placed in a variety of mental health facilities that  
            can be in disparate geographic regions would present  
            substantial obstacles to such representation.  The same  
            obstacles are present if a defendant in state prison required  
            representation on a resentencing.
          
          7)Suggested Committee Amendments to be Taken in the Future:   
            Specify that if a judge re-sentences a defendant, the court  
            may not impose a sentence longer than originally imposed. 

          8)Argument in Support:  According to The Steinberg Institute,  
            "As co-sponsor of AB 2262 (Levine), the Steinberg Institute is  











                                                                    AB 2262


                                                                     Page M


            starkly aware of the fact that roughly half of all prisoners  
            in California are mentally ill and have received psychiatric  
            treatment within the past year. Many of these offenders'  
            crimes were directly linked to their mental health condition  
            and the lack of appropriate treatment. According to the U.S.  
            Supreme Court, conditions in California prisons are  
            exacerbating psychiatric disorders of prisoners living with  
            mental illness.  When released from custody, parolees with  
            mental illness have a higher recidivism rate compared to  
            healthy parolees, according to the Department of Corrections.   
            This creates a revolving door of high cost individuals  
            remaining in the criminal justice system and not accessing the  
            treatment they need to be-come productive citizens. 

          "AB 2262, the Mental Health Justice Act, addresses this issue by  
            allowing Superior Courts discretion when sentencing an  
            offender with a mental illness to include mental health  
            treatment in prison and county jails when in the best  
            interests of the defendant and the community. 

          "Under current law, when an offender is convicted of a crime,  
            courts have power only over the length of the offender's  
            sentence. Even when mental illness is an obvious component of  
            the offender's crime, courts have no statutory authority to  
            require mental health treatment or supervision. 

          "AB 2262 does the following: 

          "If a defendant has pled guilty or no contest to, or has been  
            convicted of, an offense that will result in a sentence to  
            state prison or county jail, the defendant or the prosecutor  
            may submit evidence, for the courts consideration during  
            sentencing, of a defendant's diagnosed mental illness that was  
            a substantial factor that contributed to the defendant's  
            criminal conduct.

          "Having considered the evidence submitted and if the court  
            determines that it is in the best interest of public safety,  
            the court may do one, or more of the following: 











                                                                    AB 2262


                                                                     Page N



          "(A) Order that the defendant serve, if the defendant agrees,  
            all or a part of his or her sentence in a residential mental  
            health treatment facility instead of in the state prison or  
            county jail, unless that placement would pose an unreasonable  
            risk of danger to public safety.

          "(B) Direct the Department of Corrections and Rehabilitation or  
            county jail authority to place the defendant in a mental  
            health program within the state prison or county jail system,  
            respectively, at a level of care determined to be appropriate  
            by the department's mental health staff or county mental  
            health staff, within 30 days, of the defendant's sentencing. 

          "(C) Order the Department of Correction and Rehabilitation or  
            the county jail to prepare a post release mental health  
            treatment plan six months prior to the defendant's release to  
            parole or post release community supervision. The treatment  
            plan shall specify the manner in which the defendant will  
            receive mental health treatment services following that  
            release, and shall address, if applicable and in the  
            discretion of the court, medication management, housing, and  
            substance abuse treatment. 

          "At any time, upon a petition from the defendant or prosecutor,  
            if it is in the public interest, the court may recall a  
            sentence that includes a mental health treatment order issued  
            under this section and either resentence the defendant to any  
            other mental health treatment authorized under subdivision (c)  
            or resentence the defendant in the same manner as if he or she  
            had not previously been sentenced with application of this  
            section, provided that the initial sentence, and the defendant  
            receives credit for the time he or she served. 

          "Simply locking people up with mental illness does not make  
            sense from an outcomes standpoint, or from a civil rights  
            perspective for that matter. We believe AB 2262 can help to  
            mitigate the state's current struggle to treat offenders with  
            a mental health diagnosis in prison and county jails,  











                                                                    AB 2262


                                                                     Page O


            especially as people with mental illness are far less likely  
            to commit a crime, violate prison rules, or recidivate if they  
            are receiving high quality treatment."  

          "California has made great strides over the past ten years  
            improving the lives of individuals with severe mental illness  
            through the Mental Health Services Act and subsequent  
            legislative reforms to the mental health system. However,  
            despite all the progress we have made, there still remains a  
            great deal of work to be done. AB 2262 helps ensure the courts  
            have appropriate and cost-effective sentencing options and  
            that offenders who suffer from a diagnosable mental illness  
            receive the care they need."

          9)Argument in Opposition:  According to The California District  
            Attorneys Association, "Beyond our concerns with the timing,  
            frequency, and nature of the evidence being presented, we  
            object to this bill's attempt to place the trial court judge  
            in the role of mental health expert - a role that they likely  
            have neither the training, nor the inclination to carry out.   
            Courts already have the authority to order a hearing to  
            determine whether a defendant is mentally competent to stand  
            trial, and now would be put in the position of evaluating  
            evidence of mental illness to determine appropriate placements  
            and programming for these individuals.  We do not believe the  
            court should be involved in post-conviction treatment issues.

          "While the initial blurring of the lines between judge and  
            mental health evaluator is of great concern at the time of  
            sentencing, so too is the continuing jurisdiction that the  
            court would retain over every one of these cases as a result  
            of the bill allowing defendants and prosecutors to return to  
            the court 'at any time' for a change in the placement order or  
            discharge plans.  This puts an unknown, but significant,  
            burden on trial court resources, and marks a drastic departure  
            from the traditional role of the court.

          "Finally, we believe that the determination of whether a  
            convicted defendant would pose an unreasonable risk of danger  











                                                                    AB 2262


                                                                     Page P


            to public safety, for purposes of determining eligibility for  
            residential mental health treatment, is based on an  
            unreachable standard.  Penal Code section 1170.18(c) currently  
            defines "unreasonable risk of danger to public safety" as an  
            unreasonable risk that the person will commit one of the few  
            enumerated violent felonies in PC 667(e)(2)(C)(iv).  

          "Those crimes are limited to sexually violent offenses, murder,  
            certain sex crimes with children under 14 years old, assault  
            with a machine gun on a peace officer, possession of weapons  
            of mass destruction, or a crime punishable by death or life  
            imprisonment.  Put another way, those crimes do not include,  
            and it would not be enough to show a likelihood that the  
            individual would commit, any of the following violent offenses  
            (and this is a partial list):

             Carjacking
             Armed robbery
             Assault on a peace officer with something other than a  
            machine gun
             Most felonies in which the defendant personally uses a  
            firearm
             Assault with a deadly weapon by an inmate
             Kidnapping
             Holding a hostage by10) a state prison inmate
             A felony where the defendant personally inflicted great  
            bodily injury

          Moreover, to be eligible for residential mental health  
            treatment, the defendant must not be subject to the Three  
            Strikes Law.  So, in order to render someone ineligible to  
            serve their sentence in a residential facility, a court would  
            have to determine that someone who has not committed a strike  
            in the past, now poses an unreasonable risk of committing one  
            of these few heinous offenses in the future.  

          "There are no tests, no assessments, and no fortune-telling  
            devices that foresee when a person is likely to commit a  
            murder, or a rape, or possess a weapon of mass destruction.   











                                                                    AB 2262


                                                                     Page Q


            Even the most finely tuned assessment tool, at best, can say  
            that an offender has a likelihood of violently recidivating -  
            but not which type of crime he or she will commit.  These  
            assessment tools are simply scales based on other offenders  
            with similar characteristics and backgrounds - essentially a  
            criminal actuarial table.  They can predict a possibility of  
            committing a crime in the future compared to others with the  
            same data points, but cannot predict which crime or whether  
            the crime will occur.  Nor are they intended for this purpose,  
            but as a guide to assist in planning the appropriate level of  
            supervision and treatment to reduce that likelihood to  
            recidivate.  

          "Surely there is a use for these tools under the model  
            contemplated by AB 2262, but it should not be to predict  
            whether someone will commit a particular, fact-specific  
            offense as criteria for a placement in a lower security  
            facility.

          "In practice, we believe that the "unreasonable risk" standard  
            is insufficient to ensure that violent individuals are not  
            placed in residential treatment facilities."

          11)Related Legislation:  AB 1006 (Levine), of the 2015-2016  
            Legislative Session, would have allowed the court to order the  
            defendant to serve part of his or her sentence in a  
            residential mental health treatment facility or order the  
            defendant placed in a mental health program in the state  
            prison or county jail, if the defendant had a diagnosable  
            mental condition.  AB 1006 was held in the Assembly  
            Appropriations Committee.

          12)Prior Legislation: SB 1323 (Cedillo), of the 2005-2006  
            Legislative Session, would have appropriated $350,000 from the  
            General Fund for allocation, over 5 years, to the County of  
            Los Angeles, for the purpose of funding one position to work,  
            in conjunction with the Los Angeles County Superior Court, on  
            a 5-year Prototype Court Pilot Program for nonviolent felony  
            offenders in the state who have been identified as having both  











                                                                    AB 2262


                                                                     Page R


            serious mental health and substance abuse problems. SB 1323  
            was held in Senate Appropriations Committee.

          REGISTERED SUPPORT / OPPOSITION:

          Support

          Steinberg Institute (Co-sponsor)
          National Alliance on Mental Illness, California 
          1 Private Individual 

          Opposition
          
          California District Attorneys Association
          Alameda County District Attorney  

          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744