BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1295 Hearing Date: April 19, 2016
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|Author: |Nielsen |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Mentally Ill Prisoners
HISTORY
Source: California District Attorneys Association
Prior Legislation:SB 279 (Dunn) Ch. 16, Stats. 1999
SB 34 (Peace) Ch. 761, Stats. 1995
SB 1296 (McCorquodale) Ch.1419, Stats. 1985
Support: Unknown
Opposition:None known
PURPOSE
The purpose of this bill is to allow documentary and other
specified hearsay evidence to prove that an alleged mentally
disordered offender's (MDO) crime of commitment to prison
qualified as a violent crime under the MDO law.
Existing law states a legislative finding and declaration that
the Department of Corrections and Rehabilitation (CDCR) should
evaluate each prisoner for severe mental disorders during the
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first year of the prisoner's sentence, and that severely
mentally disordered prisoners should be provided with an
appropriate level of mental health treatment while in prison and
when returned to the community. (Pen. Code § 2960.)
Existing law requires, as a condition of parole, a prisoner who
meets the following criteria be treated by the State Department
of State Hospitals (DSH) and DHS to provide the necessary
treatment:
The prisoner has a severe mental disorder, as defined,
that is not in remission, as defined, or cannot be kept in
remission without treatment;
The severe mental disorder was one of the causes of or
was an aggravating factor in the commission of a crime, as
specified, for which the prisoner was sentenced to prison;
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; and,
Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or
psychologist from the DSH or a chief psychiatrist of CDCR,
as applicable, have evaluated the prisoner at a CDCR
facility or state hospital, as applicable, and a chief
psychiatrist of CDCR has certified to BPH that the prisoner
meets the above criteria and that by reason of his or her
severe mental disorder the prisoner represents a
substantial danger of physical harm to others. (Pen. Code
§ 2962.)
Existing law requires BPH to order a further examination by two
independent professionals, as specified, if the professionals
doing the evaluation above do not concur that the inmate meets
the criteria for MDO commitment. The certification by a chief
psychiatrist to BPH that the inmate is an MDO shall stand if at
least one of the independent professionals who evaluate the
prisoner concurs with the chief psychiatrist's certification.
(Pen. Code § 2962, subds. (d)(2)- (3).)
Existing law allows BPH, upon a showing of good cause, to order
an inmate to remain in custody for up to 45 days past the
scheduled release date for a full MDO evaluation. (Pen. Code §
2963.)
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Existing law allows the prisoner to challenge the MDO
determination both administratively (at a hearing before the
board) and judicially (via a superior court jury trial). (Pen.
Code § 2966.)
Existing law provides that if the MDO determination made by BPH
is reversed by a judge or jury, the court shall stay the
execution of the decision for five working days to allow for an
orderly release of the person. (Pen. Code § 2966.)
Existing law requires MDO treatment to be inpatient treatment
unless there is reasonable cause to believe that the parolee can
be safely and effectively treated on an outpatient basis.
Existing law allows a parolee to request a hearing to determine
whether outpatient treatment is appropriate if the hospital does
not place the parolee on outpatient treatment within 60 days of
receiving custody of the parolee. (Pen. Code § 2964, subds.
(a)-(b).)
Existing law provides that a person involuntarily confined for
treatment of mental illness as a MDO can be involuntarily
treated with antipsychotic medication in a non-emergency
situation where the MDO is determined by a court to be either 1)
incompetent to refuse medication (unable to make rational
medical decisions); or 2) a danger to others within the meaning
of Welfare and Institutions Code section 5300 (the LPS section
for 180 day commitments of dangerous persons). (In re Qawi,
supra, (2004) 32 Cal.4th 1, 27-28.)
Existing law requires the director of the hospital to notify BPH
and discontinue treatment if the parolee's severe mental
disorder is put into remission during the parole period and can
be kept that way. (Pen. Code § 2968.)
Existing law allows the district attorney to file a petition in
the superior court seeking a one-year extension of the MDO
commitment, subject to the same procedural and substantive rules
of the original commitment trial. (Pen. Code § 2970.)
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Existing law provides that proof of qualifying nature of an
alleged sexually violent predator's qualifying prior convictions
may be established by documentary evidence: "The details
underlying the commission of an offense that led to a prior
conviction, including a predatory relationship with the victim,
may be shown by documentary evidence, including, but not limited
to, preliminary hearing transcripts, trial transcripts,
probation and sentencing reports, and evaluations by [DSH]."
(Welf. & Inst. Code § 6600, subd. (a)(3).)
This bill would allow evidence of the qualifying violent nature
of an alleged MDO's crime of commitment to prison to include
"documentary evidence or pursuant to the testimony of the
[mental health expert] who evaluated the alleged MDO."
This bill provides that documentary evidence to establish the
qualifying violent nature of the inmate's offense or offenses
includes, but is not limited to, preliminary hearing and trial
transcripts, probation and sentencing reports and DSH
evaluations.
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.
COMMENTS
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1.Need for This Bill
According to the author:
SB 1295 seeks to relieve crime victims from being
required to give traumatic testimony during a parole
hearing of their mentally disordered attacker. The
bill would amend the Mentally Disordered Offender
(MDO) Act to allow mental health experts to provide
testimony based on probation reports, trial
transcripts, and other documentary evidence. Under a
1994 court ruling, proof of an offender's force,
violence, or threat could be admitted into a parole
hearing through the testimony of an expert evaluator
(generally psychologists or psychiatrists) relying on
probation reports, DSH evaluations and trial
transcripts. This means the evidence could be
presented in an MDO parole hearing without prosecutors
re-victimizing crime victims.
A 2015 California Supreme Court decision overturned
the allowance of expert testimony. Since then, expert
testimony based on documentary evidence could not be
used to prove the force, violence, or threat of an
MDO's prior crime during a parole hearing. This poses
a problem because it forces the prosecution to choose
between victim "re-victimization" and holding a
hearing without full evidence. The absence of this
testimony could lead to the release of a parolee who
with full evidence would be shown to be an MDO.
Consequently, prosecutors are put in a tough place
during an MDO parole hearing: ask a victim to relive a
traumatic experience, or risk releasing a dangerous
person who requires in-patient treatment.
Fortunately, in its opinion, the California Supreme
Court paved the way for a solution. The ruling
acknowledged that the Legislature is free to create
exceptions to the rules of evidence as it has done in
the SVP (Sexually Violent Predator) context. SB 1295
is that solution. This bill will protect victims in
two ways - by relieving them of the obligation to
provide traumatic testimony in a parole hearing, and
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by helping to prevent the release of dangerous
offenders. This bill will once again allow mental
health evaluators to play a critical role in the
parole hearings of mentally disordered offenders.
2.Background on the Mentally Disordered Offender Act (Pen. Code
§ 2960 et seq.)
A MDO commitment is a post-prison civil commitment. The MDO Act
is designed to confine as mentally ill an inmate who is about to
be released on parole when it is deemed that he or she has a
mental illness which contributed to the commission of a violent
crime. Rather than release the inmate to the community, CDCR
paroles the inmate to the supervision of the state hospital, and
the individual remains under hospital supervision throughout the
parole period. The MDO law actually addresses treatment in
three contexts - first, as a condition of parole (Pen. Code, §
2962); then, as continued treatment for one year upon
termination of parole (Pen. Code § 2970); and, finally, as an
additional year of treatment after expiration of the original,
or previous, one-year commitment (Pen. Code § 2972). (People v.
Cobb (2010) 48 Cal.4th 243, 251.)
Penal Code section 2962 lists six criteria that must be proven
for an initial MDO certification, namely, whether: (1) the
inmate has a severe mental disorder; (2) the inmate used force
or violence in committing the underlying offense; (3) the severe
mental disorder was one of the causes or an aggravating factor
in the commission of the offense; (4) the disorder is not in
remission or capable of being kept in remission without
treatment; (5) the inmate was treated for the disorder for at
least 90 days in the year before the inmate's release; and (6)
by reason of the severe mental disorder, the inmate poses a
serious threat of physical harm to others. (Pen. Code § 2962,
subds. (a)-(d); People v. Cobb, supra, 48 Cal.4th at p.
251-252.)
The initial determination that the inmate meets the MDO criteria
is made administratively. The person in charge of treating the
prisoner and a practicing psychiatrist or psychologist from the
DSH will evaluate the inmate. If it appears that the inmate
qualifies, the chief psychiatrist then will certify to the Board
of Parole Hearings (BPH) that the prisoner meets the criteria
for an MDO commitment
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The inmate may request a hearing before BPH to require proof
that he or she is an MDO. If BPH determines that the defendant
is an MDO, the inmate may file, in the superior court of the
county in which he or she is incarcerated or is being treated, a
petition for a jury trial on whether he or she meets MDO
criteria. The jury must unanimously agree beyond a reasonable
doubt that the inmate is an MDO. If the jury, or the court if a
jury trial is waived, reverses the determination of BPH, the
court is required to stay the execution of the decision for five
working days to allow for an orderly release of the prisoner.
MDO treatment must be on an inpatient basis, unless there is
reasonable cause to believe that the parolee can be safely and
effectively treated on an outpatient basis. But if the parolee
can no longer be safely and effectively treated in an outpatient
program, he or she may be taken into custody and placed in a
secure mental health facility. An MDO commitment is for one
year; however, the commitment can be extended. (Pen. Code §
2972, subd. (c).) When the individual is due to be released
from parole, the state can petition to extend the MDO commitment
for another year. The state can file successive petitions for
further extensions, raising the prospect that, despite the
completion of a prison sentence, the MDO may never be released.
The trial for each one-year commitment is done according to the
same standards and rules that apply to the initial trial.
3.Evidence That the Parolee's Crime of Commitment Involved
Violence
The determination whether the inmate committed a qualifying
violent crime is essentially a formality if he or she was
convicted of an offense specified in the governing statute.
These include voluntary manslaughter, robbery in which the
inmate personally used a weapon, forced or coerced sex crimes
and others. (Pen. Code § 2962, subd. (e)(2)(A)-(O).) Proof of
the violent nature of a crime is less clear if it is based on
the defendant's conduct in any felony "in which the prisoner
used force or violence, or caused serious bodily injury? or made
a credible threat to cause "substantial physical harm?." (Id.,
at subparagraphs (P)-(Q).)
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Proof of an inmate defendant's violent conduct has been done
through live testimony by the victim or witnesses, or through
hearsay testimony from the state's mental health expert.
Presenting live testimony risks traumatizing the victims.
Hearsay - a statement made out of court to prove a fact in a
trial or hearing - is a less reliable form of evidence and is
generally inadmissible unless an exception to the hearsay rule
applies.
4.California Supreme Court Decision Barring Hearsay by an Expert
to Establish That an Alleged MDO Committed a Qualifying
Violent Crime
The Court of Appeal produced conflicting opinions as to whether
the state could validly use hearsay evidence to prove the facts
of an inmate's allegedly violent commitment offense. (People v.
Miller (1994) 25 Cal.App.4th 913 and People v. Baker (2014) 204
Cal.App.4th 1234.) The California Supreme Court resolved the
conflict by finding that hearsay is not admissible to prove the
facts of the conviction. (People v. Stevens (2015) 64 Cal.4th
325.) The court acknowledged the settled rules that expert
opinion is admissible to help the jury understand an issue
beyond common experience and that hearsay is admissible if it
"reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates." (Id.,
at p. 336. quoting Evid. Code § 801, subd. (b).)
The Supreme Court agreed that an expert psychiatrist or
psychologist may properly use hearsay in forming and stating an
opinion as to whether a defendant's mental disorder was one of
the causes or an aggravating factor in the commission of the
underlying crime. "But proof of a qualifying conviction under
the MDO Act is based on facts rather than on defendant's
psychological condition, and thus does not call for a mental
health expert's opinion testimony." (Stevens, at p. 336)
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The court in Stevens noted that the Legislature had authorized
an expert in an MDO case to rely on certified records to
establish the requirement that the inmate received 90 days of
treatment in the prior year. The court then ruled:
We conclude that in a commitment hearing under the MDO
Act, the People may not prove the facts underlying the
commitment offense (that are necessary to establish
the qualifying offense) through a mental health
expert's opinion testimony. We note that the
Legislature is free to create exceptions to the rules
of evidence as it has done in the SVP context. We
therefore reverse the Court of Appeal judgment, and
remand the matter for proceedings consistent with our
conclusion. (Id., at p. 338.)
The purpose of this bill to create the hearsay exception to
which the Stevens court referred.
It appears that the Legislature is free to enact the hearsay
exception in this bill because an MDO proceeding is civil in
nature. In a criminal case there is developing consensus that
the 5th Amendment bars admission of hearsay presented by an
expert to prove specific facts that constitute the basis of the
expert's opinion. This development is part of the relatively
slow implementation and application of the decision of the
United States Supreme Court in Crawford v. Washington (2004) 541
U.S. 36. The California Supreme Court has explained:
[T]he prosecution's use of testimonial out-of-court
statements "ordinarily violates the defendant's right
to confront the maker of the statements unless the
declarant is unavailable to testify and the defendant
had a prior opportunity for cross-examination."
Although the high court has not agreed on a
definition of "testimonial," testimonial out-of-court
statements have two critical components. First, to be
testimonial the statement must be made with some
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degree of formality or solemnity. Second, the
statement is testimonial only if its primary purpose
pertains in some fashion to a criminal prosecution.
The high court justices have not, however, agreed on
what the statement's primary purpose must be.
(People v. Dungo (2012) 55 Cal.4th 608, 619, italics
added.)
5.Parallel Evidentiary Provisions in the SVP Law and the MDO
Law, as Amended by this Bill, are not Consistent
The author's statement notes that documentary evidence is
authorized in SVP cases. The provision in this bill concerning
documentary evidence in MDO cases appears to be directly drawn
from the parallel SVP provision. The relevant provision in the
SVP law states:
Conviction of one or more of the crimes enumerated in
this section shall constitute evidence that may
support a court or jury determination that a person is
a sexually violent predator, but shall not be the sole
basis for the determination. The existence of any
prior [sexually violent] convictions may be shown with
documentary evidence. The details underlying the
commission of an offense that led to a prior
conviction, including a predatory relationship with
the victim, 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. (Welf. & Inst. Code §
6600, subd. (a)(3).)
The documentary evidence provision in this bill for MDO cases is
nearly the same as in the SVP law. However, this bill includes
an arguably confusing and uncertain phrase concerning the
testimony of an expert who evaluated the inmate and gave an
opinion that the inmate was an SVP. The provision in this bill
reads as follows:
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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.
It is unclear why this bill includes a specific reference to the
testimony of an expert evaluator. Testimony about the sexually
violent and predatory nature of a prior conviction or
convictions in an SVP is typically presented through the
testimony, as in an MDO case. The real issue as to the
testimony of the expert is what the testimony can be based on
and consider, not the fact of the expert's appearance as a
witness. In that sense, the reference to testimony by an expert
appears to be unnecessary. As to the violent nature of a prior
conviction, apart from the testimony of a victim or direct
witness to the crime, the expert evaluator is in no better or
worse position to testify about the facts of the prior offense.
Allowing the expert to testify about the facts of the prior
offense would appear to be efficient, as the expert would be
expected to give an expert opinion that is based on the nature
of the prior conviction and the alleged MDO's mental disorder.
However, courts interpreting this bill would need to determine
if there is a substantive purpose for the reference to expert
testimony. A maxim of statutory construction holds that
statutory terms must be presumed to not be unnecessary
"surplasage." (People v. Black (1982) 32 Cal.3d 1, 5.) This
could lead to litigation and inconsistent standards for SVP and
MDO cases on the same issue, although "the purpose of the MDO
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Act and the SVPA is the same: to protect the public from
dangerous felony offenders with mental disorders and to provide
mental health treatment for their disorders." (People v.
Harrison (2013) 57 Cal.4th 1211, 1226 -1228; quoting People v.
McKee (2010) 47 Cal.4th 1172, 1203.)
If there is no compelling need for the specific reference to
expert testimony in this bill, it is suggested that that
provision be stricken from the bill. The amendment would make
the MDO law and the SVP law consistent on the same evidentiary
issue. The author has agreed to amend the bill in this fashion.
SHOULD AUTHOR'S AMENDMENTS BE ADOPTED TO MAKE THE EVIDENTIARY
RULES FOR PROVING THE FACTS OF AN UNDERLYING MDO CONVICTION THE
SAME AS THE RULES THAT APPLY TO AN EQUIVALENT DETERMINATION IN
AN SVP CASE?
-- END -