BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 2858 (Leno) 8
As Amended May 10, 2006
Hearing date: June 27, 2006
Penal Code; Welfare and Institutions Code
MK:br
TRIALS: MENTAL COMPETENCE: DEFENDANT
HISTORY
Source: San Francisco District Attorney's Office
California District Attorneys Association
Prior Legislation: None
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 80 - Noes 0
KEY ISSUES
SHOULD THE LAW REQUIRE THE COURT TO NOTIFY THE DEFENSE COUNSEL,
SHERIFF AND DISTRICT ATTORNEY IF A DEFENDANT FOUND TO BE
MENTALLY INCOMPETENT TO STAND TRIAL ON A VIOLENT FELONY IS
PLACED ON OUTPATIENT STATUS?
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SHOULD THE DISTRICT ATTORNEY, SHERIFF AND DEFENSE COUNSEL RECEIVE
NOTICE OF THE INITIATION OF THE CONSERVATORSHIP PROCESS ON A PERSON
CHARGED WITH A VIOLENT FELONY FOLLOWING A FINDING OF MENTAL
INCOMPETENCE?
SHOULD THE LAW STATE THAT NOTWITHSTANDING OTHER PROVISIONS THE COURT
SHALL NOT APPOINT THE PROPOSED CONSERVATOR IF THE COURT DETERMINES
THAT APPOINTMENT OF THE PROPOSED CONSERVATOR WILL NOT RESULT IN
ADEQUATE PROTECTION OF THE PUBLIC?
PURPOSE
The purpose of this bill is to provide for notice to the defense
attorney, sheriff and district attorney if a defendant found
mentally incompetent to stand trial on a violent felony is
placed on outpatient status; provide for notice to those same
people when there is the initiation of the conservatorship; and
provide that the court shall not appoint a conservator if it
will not result in adequate protection of the public.
Existing law has specified procedures when a defendant's mental
competence to stand trial is questioned. (Penal Code 1367 et
seq.)
Existing law provides that if a defendant is found mentally
incompetent, the trial or judgment shall be suspended until the
person becomes mentally competent. (Penal Code
1370(a)(1)(B).)
Existing law provides that a defendant charged with a violent
felony may not be delivered to a state hospital or treatment
facility unless the sate hospital or treatment facility has a
secured perimeter or locked and controlled treatment facility,
and the judge determines that the public safety will be
protected. (Penal Code 1370(a)(1)(D).)
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Existing law defines violent felony as defined in Penal Code
Section 667.5 (c). (Penal Code 1370(a)(1)(D).)
Existing law provides that a defendant charged with a violent
felony may be placed on outpatient status only if the court
finds that the placement will not pose a danger to the health or
safety of others. (Penal Code 1370(a)(1)(F).)
This bill provides that if the court places a defendant charged
with a violent felony on outpatient status the court must serve
copies of the placement order on defense counsel, the sheriff in
the county where the defendant will be placed, and the district
attorney for the county in which the violent felony charges are
pending against the defendant.
Existing law 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 1370(d).)
Existing law 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 1370(e).)
Existing law 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 1370(c)(1).)
Existing law states whenever any defendant is returned to the
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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
1370(c)(2).)
This bill provides instead that the court shall transmit a copy
of the order directing initiation of conservatorship proceedings
to the community program director or a designee, the sheriff and
the district attorney of the county in which criminal charges
are pending, and the defendant's counsel of record. The court
shall notify the community program director or a designee and
the sheriff and district attorney of the county in which
criminal charges are pending, and the defendant's counsel of
record of the outcome of the conservatorship proceedings.
This bill provides that if a change in placement is proposed for
a defendant who is committed 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.
Existing law 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
1370(c)(3).)
Existing law states a conservator of the person, of the estate,
or of the person and the estate may be appointed for any person
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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:
A conservator may be appointed for a gravely
disabled minor.
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.
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. (Welfare
&Institutions Code 5350(a) and (b).)
Existing law specifies 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. (Welfare
&Institutions Code 5350(c).)
Existing law 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
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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 15 days upon the request of counsel for the proposed
conservatee. This right shall also apply in subsequent
proceedings to reestablish conservatorship. (Welfare &
Institutions Code 5350(d).)
This bill provides that notwithstanding any other provision the
court shall not appoint the proposed conservator if the court
determines that appointment of the proposed conservator will not
result in adequate protection of the public.
COMMENTS
1.Need for This Bill
According to the author:
Under existing law, dangerous, mentally ill
persons charged with rape and murder could
potentially 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 county mental health
system - where they slip through the cracks.
AB 2858 closes a troubling loophole in the law by
providing notice to prosecutors and public safety
agencies when a defendant charged with a violent
felony is placed on outpatient 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 an opportunity
to be heard with respect to a proposed change in
placement for a defendant in a "Murphy"
conservatorship.
AB 2858 also requires the court to determine
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whether the proposed conservator would adequately
protect public safety in supervising the defendant.
This bill will ensure that public safety officials
are given meaningful notice and an opportunity to
provide input in critical proceedings concerning
mentally incompetent defendants.
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2. Notification of Outpatient Status and Conservatorship
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
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 1368(c).)
If the defendant is found mentally incompetent, the trial or
judgment shall be suspended until the person becomes mentally
competent. (Penal Code 1370(a)(1)(B).) A defendant who was
found mentally incompetent who was charged with a violent
felony may only be placed in a state mental hospital or
treatment facility if it is locked or has a secured perimeter.
(Penal Code 1370(a)(1)(D).) The mentally incompetent
defendant charged with a violent offense may only be placed on
outpatient status if the court finds that the placement will
not pose a danger to the health or safety of others. (Penal
Code 1370(a)(1)(F).) This bill would further provide that if
the court places a defendant charged with a violent felony on
outpatient status the court must serve copies of the placement
order on defense counsel, the sheriff in the county where the
defendant will be placed and the district attorney for the
county in which the violent felony charges are pending against
the defendant.
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 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 in custody of
the treating agency and a subsequent report must be filed every
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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 1370(c)(2).) If conservatorship proceedings are initiated
after a defendant is returned to court, specified persons must be
noticed. (Penal Code 1370(c)(2).) This bill changes the notice
to include the sheriff and the district attorney of the county in
which criminal charges are pending and the defendant's counsel of
record and requires notice not only of the initiation of the
proceedings but also the outcome of the proceedings.
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 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 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
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conservatorship may be substituted for a LPS conservatorship
which may allow supervised release under certain circumstances.
In general when a Murphy conservatorship is appointed, the court
shall consider the purposes of protection of the public and the
treatment of the conservatee. (W&I Code 5330) This bill
further provides that notwithstanding any other provision the
court shall not appoint the proposed conservator if the court
determines that appointment of the proposed conservator will not
result in adequate protection of the public.
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