BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1295|
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UNFINISHED BUSINESS
Bill No: SB 1295
Author: Nielsen (R)
Amended: 6/27/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/19/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
SENATE FLOOR: 39-0, 5/31/16
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block,
Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall,
Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson,
Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning,
Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Stone,
Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Runner
ASSEMBLY FLOOR: 78-1, 8/22/16 - See last page for vote
SUBJECT: Mentally ill prisoners
SOURCE: California District Attorneys Association
DIGEST: This bill allows documentary and other specified
hearsay evidence to prove that an alleged mentally disordered
offenders (MDO) crime of commitment to prison qualified as a
violent crime under the MDO law.
Assembly Amendments strike a provision providing that a treating
psychiatrist's certification creates a rebuttable presumption
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that an alleged mentally disordered offender has received 90
days of treatment while in custody, one of the requirements for
commitment of an MDO for involuntary treatment on parole.
ANALYSIS:
Existing law:
1) States a legislative finding and declaration that the
Department of Corrections and Rehabilitation (CDCR) should
evaluate each prisoner for severe mental disorders during the
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.)
2) Requires, as a condition of parole, a prisoner who meets the
following criteria be treated by the State Department of
State Hospitals (DSH):
a) The prisoner has a severe mental disorder, as defined,
that is not in remission, as defined, or cannot be kept in
remission without treatment;
b) 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;
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; and,
d) Prior to release on parole, the person in charge of
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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 the Board of Parole
Hearings (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.)
3) 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).)
4) 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.)
5) 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.)
6) 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.)
7) 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
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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).)
8) Provides that a person involuntarily confined for treatment
of mental illness as an MDO can be involuntarily treated with
antipsychotic medication in a non-emergency situation where
the MDO is determined by a court to be either a) incompetent
to refuse medication (unable to make rational medical
decisions); or b) 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.)
9) 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.)
10) 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.)
11) 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:
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1) Allows evidence of the qualifying violent nature of an
alleged MDO's crime of commitment to prison to include
documentary evidence.
2) 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.
Background
According to the author:
SB 1295 would 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, an
offender's violent acts could be proved through the
testimony of a psychologist or psychiatrist relying on
probation reports, DSH evaluations and trial transcripts,
without the victim's testimony.
A 2015 California Supreme Court decision held that
hearsay testimony from an expert based on documentary
evidence could not be used to prove the force, violence,
or threat of an MDO's prior crime. The prosecution must
now make a victim testify or hold a hearing without full
evidence. The court noted 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.
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An MDO commitment is a post-prison civil commitment designed to
confine as mentally ill a parolee when it is found that he or
she has a mental illness which contributed to the commission of
a violent crime and predisposes the parolee to further violence.
CDCR paroles an MDO to treatment in the state hospital
throughout parole. 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 mental
disorder was one of the causes or an aggravating factor of the
offense; (4) the disorder is not in remission; (5) the inmate
was treated for the disorder for at least 90 days in the year
before 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 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 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 hearing - is a less
reliable form of evidence and is generally inadmissible without
an exception to the hearsay rule.
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 violent offense. 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 Supreme Court agreed that a psychologist
or psychiatrist may properly use hearsay within the area of his
or her expertise - the alleged MDO's mental disorder as a
factor in the 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) The
court 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 and could do the same in MDO matters. (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 Fifth Amendment bars
admission of hearsay presented by an expert to prove specific
facts that constitute the basis of the expert's opinion.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Assembly Appropriations Committee:
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1)Potential future trial court cost savings (General Fund) to
the extent the admissibility of documentary evidence reduces
the amount of time spent in trial, including the number and
complexity of appeals to decide evidentiary issues.
2)Minor, if any, fiscal impact to the BPH and its existing MDO
process.
3)Minor fiscal impact, if any on the DSH.
SUPPORT: (Verified 8/17/16)
California District Attorneys Association (source)
Crime Victims United of California
OPPOSITION: (Verified8/17/16)
None received
ASSEMBLY FLOOR: 78-1, 8/22/16
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, 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, Mullin, Nazarian, Obernolte, O'Donnell,
Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Rendon
NOES: Frazier
NO VOTE RECORDED: Melendez
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Prepared by:Jerome McGuire / PUB. S. /
8/22/16 22:15:49
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