Amended in Senate March 28, 2016

Senate Bill No. 1295

Introduced by Senator Nielsen

February 19, 2016

An act to amend Section 2962 of the Penal Code, relating to mentally ill prisoners.

LEGISLATIVE COUNSEL’S DIGEST

SB 1295, as amended, Nielsen. Mentally ill prisoners.

Existing law requires, as a condition of parole, a prisoner who begin insert has a severe mental disorder that is not in remission and who end insert meets specified criteria to be treated by the State Department of State begin delete Hospitals. Existing law requires the department to provide end delete begin insert Hospitals and provided end insert the necessary treatment. begin insert In order for that commitment to occur, existing law requires, among other criteria, that the severe mental disorder be one of the causes of, or an aggravating factor in, the commission of the crime, as defined, for which the prisoner was sentenced to prison. Existing law also requires the prisoner to have been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner’s parole or release. Existing law establishes procedures for the evaluation of a prisoner under these provisions by specified health practitioners of the State Department of State Hospitals and the Department of Corrections and Rehabilitation. end insert

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This bill would make technical, nonsubstantive changes to that provision.

end delete begin insert

This bill would authorize the use of certain documentary evidence or testimony in those procedures for purposes of satisfying the criteria under the above-described provisions, as specified.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2962 of the Penal Code is amended to
read:

2962.  

As a condition of parole, a prisoner who meets the
following criteria shall be required to be treated by the State
Department of State Hospitals, and the State Department of State
Hospitals shall provide the necessary treatment:

(a) (1) The prisoner has a severe mental disorder that is not in
remission or that cannot be kept in remission without treatment.

(2) The term “severe mental disorder” means an illness or
disease or condition that substantially impairs the person’s thought,
perception of reality, emotional process, or judgment; or which
grossly impairs behavior; or that demonstrates evidence of an acute
brain syndrome for which prompt remission, in the absence of
treatment, is unlikely. The term “severe mental disorder,” as used
in this section, does not include a personality or adjustment
disorder, epilepsy, mental retardation or other developmental
disabilities, or addiction to or abuse of intoxicating substances.

(3) The term “remission” means a finding that the overt signs
and symptoms of the severe mental disorder are controlled either
by psychotropic medication or psychosocial support. A person
“cannot be kept in remission without treatment” if during the year
prior to the question being before the Board of Parole Hearings or
a trial court, he or she has been in remission and he or she has been
physically violent, except in self-defense, or he or she has made
a serious threat of substantial physical harm upon the person of
another so as to cause the target of the threat to reasonably fear
for his or her safety or the safety of his or her immediate family,
or he or she has intentionally caused property damage, or he or
she has not voluntarily followed the treatment plan. In determining
if a person has voluntarily followed the treatment plan, the standard
shall be whether the person has acted as a reasonable person would
in following the treatment plan.

(b) The severe mental disorder was one of the causes of, or was
an aggravating factor in, the commission of a crime for which the
prisoner was sentenced to prison.

(c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the prisoner’s
parole or release.

(d) (1) Prior to release on parole, the person in charge of treating
the prisoner and a practicing psychiatrist or psychologist from the
State Department of State Hospitals have evaluated the prisoner
at a facility of the Department of Corrections and Rehabilitation,
and a chief psychiatrist of the Department of Corrections and
Rehabilitation has certified to the Board of Parole Hearings that
the prisoner has a severe mental disorder, that the disorder is not
in remission, or cannot be kept in remission without treatment,
that the severe mental disorder was one of the causes or was an
aggravating factor in the prisoner’s criminal behavior, that the
prisoner has been in treatment for the severe mental disorder for
90 days or more within the year prior to his or her parole release
day, and that by reason of his or her severe mental disorder the
prisoner represents a substantial danger of physical harm to others.
For prisoners being treated by the State Department of State
Hospitals pursuant to Section 2684, the certification shall be by a
chief psychiatrist of the Department of Corrections and
Rehabilitation, and the evaluation shall be done at a state hospital
by the person at the state hospital in charge of treating the prisoner
and a practicing psychiatrist or psychologist from the Department
of Corrections and Rehabilitation.

(2) If the professionals doing the evaluation pursuant to
paragraph (1) do not concur that (A) the prisoner has a severe
mental disorder, (B) that the disorder is not in remission or cannot
be kept in remission without treatment, or (C) that the severe
mental disorder was a cause of, or aggravated, the prisoner’s
criminal behavior, and a chief psychiatrist has certified the prisoner
to the Board of Parole Hearings pursuant to this paragraph, then
the Board of Parole Hearings shall order a further examination by
two independent professionals, as provided for in Section 2978.

(3) If at least one of the independent professionals who evaluate
the prisoner pursuant to paragraph (2) concurs with the chief
psychiatrist’s certification of the issues described in paragraph (2),
this subdivision shall be applicable to the prisoner. The
professionals appointed pursuant to Section 2978 shall inform the
prisoner that the purpose of their examination is not treatment but
to determine if the prisoner meets certain criteria to be involuntarily
treated as a mentally disordered offender. It is not required that
the prisoner appreciate or understand that information.

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(4) The introduction into evidence of a certified copy of the chief
psychiatrist’s certification prepared pursuant to paragraph (2)
shall create a rebuttable presumption that the 90 days or more of
treatment required by subdivision (c) has been provided.

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(e) The crime referred to in subdivision (b) meets both of the
following criteria:

(1) The defendant received a determinate sentence pursuant to
Section 1170 for the crime.

(2) The crime is one of the following:

(A) Voluntary manslaughter.

(B) Mayhem.

(C) Kidnapping in violation of Section 207.

(D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as
provided in subdivision (b) of Section 12022, in the commission
of that robbery.

(E) Carjacking, as defined in subdivision (a) of Section 215, if
it is charged and proved that the defendant personally used a deadly
or dangerous weapon, as provided in subdivision (b) of Section
12022, in the commission of the carjacking.

(F) Rape, as defined in paragraph (2) or (6) of subdivision (a)
of Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.

(G) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.

(H) Oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person.

(I) Lewd acts on a child under 14 years of age in violation of
Section 288.

(J) Continuous sexual abuse in violation of Section 288.5.

(K) The offense described in subdivision (a) of Section 289
where the act was accomplished against the victim’s will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.

(L) Arson in violation of subdivision (a) of Section 451, or arson
in violation of any other provision of Section 451 or in violation
of Section 455 where the act posed a substantial danger of physical
harm to others.

(M) Any felony in which the defendant used a firearm which
use was charged and proved as provided in Section 12022.5,
12022.53, or 12022.55.

(N) A violation of Section 18745.

(O) Attempted murder.

(P) A crime not enumerated in subparagraphs (A) to (O),
inclusive, in which the prisoner used force or violence, or caused
serious bodily injury as defined in paragraph (4) of subdivision (f)
of Section 243.

(Q) A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in such a manner that a
reasonable person would believe and expect that the force or
violence would be used. For purposes of this subparagraph,
substantial physical harm shall not require proof that the threatened
act was likely to cause great or serious bodily injury.

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(f) For purposes of meeting the criteria set forth in this section,
the existence or nature of the crime, as defined in paragraph (2)
of subdivision (e), for which the prisoner has been convicted may
be shown with documentary evidence or pursuant to the testimony
of the psychologist or psychiatrist who evaluated the prisoner
regarding the mentally disordered offender criteria. The details
underlying the commission of the offense that led to the conviction,
including the use of force or violence, causing serious bodily injury,
or the threat to use force or violence likely to produce substantial
physical harm, may be shown by documentary evidence, including,
but not limited to, preliminary hearing transcripts, trial transcripts,
probation and sentencing reports, and evaluations by the State
Department of State Hospitals, or pursuant to the testimony of the
psychologist or psychiatrist who evaluated the prisoner regarding
the mentally disordered offender criteria.

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(f)

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begin insert (g) end insert  As used in this chapter, “substantial danger of physical harm”
does not require proof of a recent overt act.