BILL ANALYSIS
AB 2858
Page 1
Date of Hearing: May 9, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2858 (Leno) - As Introduced: February 24, 2006
As Proposed to be Amended in Committee
SUMMARY : States that where a defendant has been found mentally
incompetent to stand trial, the district attorney shall be
notified if the offender is placed on an out-patient status, as
specified. Specifically, this bill :
1)Provides if the court places a defendant charged with a
violent felony on out-patient status, as specified, the court
must serve copies of the placement order on defense counsel,
the sheriff on the county where the defendant will be placed
and the district attorney for the county in which the violent
felony charged are pending against the defendant.
2)Requires notice of any conservatorship proceedings and outcome
thereof to be served on the sheriff and the district attorney
of the county in which the criminal charges are pending and
the defendant's counsel of record.
3)States that if a change in placement is proposed for a
defendant committed pursuant existing law related to
conservatorships, the court shall provide notice and an
opportunity to be heard with respect to the proposed placement
of the defendant to the sheriff and the district attorney of
the county in which criminal charges are pending.
4)Specifies where the defendant is confined in a treatment
facility, a copy of any report to the committing court
regarding the defendant's progress toward recovery of mental
competence shall be provided by the committing court to the
prosecutor and to the defense counsel of record.
5)Prohibits the court from appointing a proposed conservator if
the court determines that appointment of the proposed
conservator will not result in the adequate protection of the
public.
AB 2858
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EXISTING LAW :
1)Provides at the end of three years from the date of commitment
or a period of commitment equal to the maximum term of
imprisonment provided by law for the most serious offense
charged in the information, indictment, or misdemeanor
complaint, whichever is shorter, a defendant who has not
recovered mental competence shall be returned to the
committing court. The court shall notify the community
program director or a designee of the return and of any
resulting court orders. [Penal Code Section 1370(c)(1).]
2)States whenever any defendant is returned to the court
pursuant to existing law and it appears to the court that the
defendant is gravely disabled, as specified, the court shall
order the conservatorship investigator of the county of
commitment of the defendant to initiate conservatorship
proceedings for the defendant. Any hearings required in the
conservatorship proceedings shall be held in the superior
court in the county that ordered the commitment. The court
shall transmit a copy of the order directing initiation of
conservatorship proceedings to the community program director
or a designee and shall notify the community program director
or a designee of the outcome of the proceedings. [Penal Code
Section 1370(c)(2).]
3)Requires that, where the defendant is confined in a treatment
facility, a copy of any report to the committing court
regarding the defendant's progress toward recovery of mental
competence shall be provided by the committing court to the
prosecutor and to the defense counsel. [Penal Code Section
1370(c)(3).]
4)States the criminal action remains subject to dismissal in the
interest of justice. If the criminal action is dismissed, the
court shall transmit a copy of the order of dismissal to the
community program director or a designee. [Penal Code Section
1370(d).]
5)Specifies that if the criminal charge against the defendant is
dismissed, the defendant shall be released from any commitment
ordered under this section, but without prejudice to the
initiation of any proceedings that may be appropriate under
existing law. [Penal Code Section 1370(e).]
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6)States a conservator of the person, of the estate, or of the
person and the estate may be appointed for any person who is
gravely disabled as a result of mental disorder or impairment
by chronic alcoholism. The procedure for establishing,
administering, and terminating a conservatorship under this
chapter shall be the same as that provided in existing law,
except as follows [Welfare and Institutions Code (WIC) Section
5350]:
a) A conservator may be appointed for a gravely disabled
minor.
b) Appointment of a conservator under this part, including
the appointment of a conservator for a person who is
gravely disabled, as specified, unless the officer
providing conservatorship investigation recommends
otherwise to the superior court.
c) In appointing a conservator, as defined in current law,
the court shall consider the purposes of protection of the
public and the treatment of the conservatee. [W&I Code
5350(a) and (b).]
7)Specified that no conservatorship of the estate pursuant to
this chapter shall be established if a conservatorship or
guardianship of the estate exists under the Probate Code.
When a gravely disabled person already has a guardian or
conservator of the person appointed under the Probate Code,
the proceedings under this chapter shall not terminate the
prior proceedings but shall be concurrent with and superior
thereto. The superior court may appoint the existing guardian
or conservator of the person or another person as conservator
of the person under this chapter. [W&I Code Section 5350(c).]
8)Requires the person for whom conservatorship is sought have
the right to demand a court or jury trial on the issue whether
he or she is gravely disabled. Demand for court or jury trial
shall be made within five days following the hearing on the
conservatorship petition. If the proposed conservatee demands
a court or jury trial before the date of the hearing as
provided for in existing law, the demand shall constitute a
waiver of the hearing. The court or jury trial shall commence
within 10 days of the date of the demand, except that the
court shall continue the trial date for a period not to exceed
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15 days upon the request of counsel for the proposed
conservatee. This right shall also apply in subsequent
proceedings to reestablish conservatorship. [W&I Code Section
5350(d).]
FISCAL EFFECT : None
COMMENTS :
1)Author' Statement : According to the author, "This bill is a
carefully limited measure that puts public safety first while
respecting the due process rights of mentally ill defendants.
This bill increases notice to prosecutors and public safety
agencies when a defendant charged with a violent felony is
placed on out-patient status, when the conservatorship
proceedings are initiated and concluded, and when a change in
placement is proposed for a defendant in a 'Murphy'
conservatorship. This bill also provides prosecutors with an
opportunity to be heard with respect to a proposed change in
placement for a defendant in a Murphy conservatorship. This
bill requires the court to determine whether the proposed
conservator would adequately protect public safety in
supervising the defendant.
"Under existing law, dangerous, mentally ill persons charged
with rape and murder can be released into the community. Once
declared incompetent to stand trial, defendants are treated to
restore competency to stand trial for a three-year maximum
period of commitment after which they are transferred into the
civil conservatorship system - where they slip through the
cracks. Once in the civil conservatorship system, these
defendants: (a) are never treated to restore trial
competency; (b) are never again evaluated for trial
competency; and, (c) may be simply released into the community
without adequate notice, supervision or any communication with
the criminal courts and public safety agencies. "
2)Mental Competency Defined in California Law : Under existing
law if an offender has been charged with a crime and is not
able to understand the nature of the criminal proceedings
and/or is not able to assist counsel in his or her defense,
the court may determine that the offender is not competent to
proceed. When that occurs, the court will require the
defendant to be examined by three doctors. If two out of
three doctors agree the offender cannot understand the charges
AB 2858
Page 5
against him or her or cannot assist in his or her own defense,
the defendant is referred to the Department of Mental Health
and the criminal proceedings are suspended. [Penal Code
Section 1368(c).] The treating agency shall submit reports to
the court periodically on the offender' status. The initial
report must be made within 90 days of the offender's
commitment. [Penal Code Section 1370(b)(1).] The report
shall specify what, if any, progress the treating agency has
made in restoring the offender's competency. If the report
states that the offender is not likely to regain competency,
then the offender is ordered to remain the custody of the
treating agency and a subsequent report must be filed every
six months. However, after a period of three years has
passed, if the offender still has not regained competence to
proceed with the criminal case, the offender must be returned
to the committing court where a subsequent civil commitment
may be ordered. [Penal Code Section 1370(c)(2).]
3)Murphy and LPS Conservatorships : If the offender has not
regained competence after the statutory three years where the
treating agency finds that there is no reason to believe the
offender will regain competence, the court may initiate
conservatorship proceedings. [ In re Davis (1973) 8 Cal.3rd
798]. Pursuant to the Lanterman-Petris-Short (LPS) Act, a
civil commitment hearing may be held to hold the defendant in
a mental health facility until it is determined he or she is
no longer a threat to him or herself or others. [W&I Code
Section 50000 et seq.] However, if the offender is charged
with a felony involving death, great bodily injury or serious
threat to another and the statutory three years has past, the
court may initiate a Murphy conservatorship. The criminal
charges must still be pending against the criminal defendant
for the court to initiate a Murphy conservatorship. The
defendant must also remain a danger to him or herself or the
public. When the defendant is held under a Murphy
conservatorship he or she is ordinarily not released from
confinement in the state hospital. A Murphy conservatee would
not be released because of the pending serious felony. [W&I
Code Section 5008(h)(1); Conservatorship of Hofferber (1980)
28 Cal.3rd 161.] Under existing law, if an offender is
referred to the Department of Mental Health pursuant to a
Murphy conservatorship, he or she may not be released. If the
offender is no longer a danger to society and the criminal
information has been dismissed, a Murphy conservatorship may
be substituted for a LPS conservatorship which may allow
AB 2858
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supervised release under certain circumstances.
4)Related Legislation : SB 570 (Migden), Chapter 265, Statutes
of 2005, states that if it appears to the court, or upon a
motion by the prosecutor, that the juvenile has a serious
mental disorder or a developmental disability, the court may
refer the minor be referred for evaluation.
5)Prior Legislation : SB 1744 (Scott), of the 2001-2002
Legislative Session, would have established specified
procedures for conducting a hearing regarding mental
competence of a minor under juvenile court law, and
temporarily suspend any other proceeding until the competency
of the minor is determined. SB 1744 was held in the Senate
Rules Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744