AB 2190, as amended, Maienschein. Criminal defendants: gravely disabled persons.
(1) Existing law prohibits outpatient status for a person who is charged with and found incompetent on a charge of, convicted of, or found not guilty by reason of insanity of certain crimes, including, but not limited to, murder, mayhem, aggravated mayhem, or any felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person, until the person has actually been confined in a state hospital or other treatment facility for at least 180 days.
Existing law permits outpatient status, without first being confined in a state hospital or other treatment facility, for a person charged with, and found incompetent on a charge of, or convicted of, any misdemeanor or any felony other than those described above, or found not guilty of any misdemeanor by reason of insanity, if specified conditions are met.
This bill would exempt from this 180-day prohibition cases where the court finds a suitable placement, including, but not limited to, an outpatient placement program, that would provide the person with more appropriate mental health treatment and the court finds that the placement would not pose a danger to the health or safety of others.
(2) Existing law establishes other conditions under which the above-described persons are eligible for outpatient status, including, but not limited to, that both the director of the treatment facility and the community program director advise the court that the person no longer poses a danger and would benefit from outpatient status.
This bill would remove these conditions and would, instead, require that the court consider whether those advisements had been made, and would make conforming changes.
(3) Existing law, the Lanterman-Pertis-Short Act, authorizes the appointment of a conservatorship for a person who is gravely disabled as a result of mental disorder or impairment by chronic alcoholism. Existing law requires the officer providing the conservatorship investigation to investigate all available alternatives to conservatorship and to recommend conservatorship to the court only if no suitable alternatives are available, and to render a written report to the court. Existing law authorizes a court to order a person alleged, as a result of mental disorder, to be a danger to others, or to himself or herself, or to be gravely disabled, to be given an evaluation of his or her condition.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would, when a court with jurisdiction over a person in a criminal case orders an evaluation of the person’s mental condition,begin insert and that evaluation leads to a conservatorship investigation,end insert require the officer providing the conservatorship investigation to serve a copy of the report on the defendant or the defendant’s counsel.
The bill would require the investigating officer, upon the prior written request of the defendant or the defendant’s counsel, to submit a copy of the report to the court hearing the criminal case, the district attorney, and the county probation department. The bill would require that the conservatorship investigation report and the information contained therein be kept confidential and not be further disclosed to anyone without the prior written consent of the defendant. The bill would, with certain exceptions, require that after disposition of the criminal case, the court place all copies of the report in a sealed file. By increasing the duties of local officials, this bill would impose a state-mandated local program.
This bill would make legislative findings to the effect that any limitation on the public’s right of access to the report is outweighed by the need to protect the privacy interests of the proposed conservatee and to prevent the chilling effect that would result from disclosure.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 1601 of the Penal Code is amended to
2read:
(a) In the case of any person charged with and found
4incompetent on a charge of, convicted of, or found not guilty by
5reason of insanity of murder, mayhem, aggravated mayhem, a
6violation of Section 207, 209, or 209.5 in which the victim suffers
7intentionally inflicted great bodily injury, robbery or carjacking
8with a deadly or dangerous weapon or in which the victim suffers
9great bodily injury, a violation of subdivision (a) or (b) of Section
10451, a violation of paragraph (2), (3), or (6) of subdivision (a) of
11Section 261, a violation of paragraph (1) or (4) of subdivision (a)
12of Section 262, a violation of Section 459 in the first degree, a
13violation of Section 220 in which the victim suffers great bodily
14injury, a violation of Section 288, a violation
of Section 18715,
1518725, 18740, 18745, 18750, or 18755, or any felony involving
16death, great bodily injury, or an act which poses a serious threat
17of bodily harm to another person, outpatient status under this title
18shall not be available until that person has actually been confined
19in a state hospital or other treatment facility for 180 days or more
20after having been committed under the provisions of law specified
21in Section 1600, unless the court finds a suitable placement,
22including, but not limited to, an outpatient placement program,
P4 1that would provide the person with more appropriate mental health
2treatment and the court finds that the placement would not pose a
3danger to the health or safety of others, including, but not limited
4to, the safety of the victim and the victim’s family.
5(b) In the case of any person charged with, and
found
6incompetent on a charge of, or convicted of, any misdemeanor or
7
any felony other than those described in subdivision (a), or found
8not guilty of any misdemeanor by reason of insanity, outpatient
9status under this title may be granted by the court prior to actual
10confinement in a state hospital or other treatment facility under
11the provisions of law specified in Section 1600.
Section 1602 of the Penal Code is amended to read:
(a) Before any person subject to the provisions of
14subdivision (b) of Section 1601 may be placed on outpatient status,
15the court shall consider all of the following criteria:
16(1) In the case of a person who is an inpatient, whether the
17director of the state hospital or other treatment facility to which
18the person has been committed advises the court that the defendant
19will not be a danger to the health and safety of others while on
20outpatient status, and will benefit from such outpatient status.
21(2) In all cases, whether the community program director or a
22designee advises the court that the
defendant will not be a danger
23to the health and safety of others while on outpatient status, will
24benefit from such status, and identifies an appropriate program of
25supervision and treatment.
26(b) Prior to determining whether to place the person on
27outpatient status, the court shall provide actual notice to the
28prosecutor and defense counsel, and to the victim, and shall hold
29a hearing at which the court may specifically order outpatient status
30for the person.
31(c) The community program director or a designee shall prepare
32and submit the evaluation and the treatment plan specified in
33paragraph (2) of subdivision (a) to the court within 15 calendar
34days after notification by the court to do so, except that in the case
35of a person who is an inpatient, the evaluation and treatment
plan
36shall be submitted within 30 calendar days after notification by
37the court to do so.
38(d) Any evaluations and recommendations pursuant to
39paragraphs (1) and (2) of subdivision (a) shall include review and
40consideration of complete, available information regarding the
P5 1circumstances of the criminal offense and the person’s prior
2criminal history.
Section 1603 of the Penal Code is amended to read:
(a) Before any person subject to subdivision (a) of
5Section 1601 may be placed on outpatient status the court shall
6consider all of the following criteria:
7(1) Whether the director of the state hospital or other treatment
8facility to which the person has been committed advises the
9committing court and the prosecutor that the defendant would no
10longer be a danger to the health and safety of others, including
11himself or herself, while under supervision and treatment in the
12community, and will benefit from that status.
13(2) Whether the community program director advises the court
14that the defendant
will benefit from that status, and identifies an
15appropriate program of supervision and treatment.
16(b) (1) Prior to release of a person under subdivision (a), the
17prosecutor shall provide notice of the hearing date and pending
18release to the victim or next of kin of the victim of the offense for
19which the person was committed where a request for the notice
20has been filed with the court, and after a hearing in court, the court
21shall specifically approve the recommendation and plan for
22outpatient status pursuant to Section 1604. The burden shall be on
23the victim or next of kin to the victim to keep the court apprised
24of the party’s current mailing address.
25(2) In any case in which the victim or next of kin to the victim
26has filed a request for notice with the
director of the state hospital
27or other treatment facility, he or she shall be notified by the director
28at the inception of any program in which the committed person
29would be allowed any type of day release unattended by the staff
30of the facility.
31(c) The community program director shall prepare and submit
32the evaluation and the treatment plan specified in paragraph (2)
33of subdivision (a) to the court within 30 calendar days after
34notification by the court to do so.
35(d) Any evaluations and recommendations pursuant to
36paragraphs (1) and (2) of subdivision (a) shall include review and
37consideration of complete, available information regarding the
38circumstances of the criminal offense and the person’s prior
39criminal history.
Section 5354 of the Welfare and Institutions Code is
2amended to read:
(a) The officer providing conservatorship investigation
4shall investigate all available alternatives to conservatorship and
5shall recommend conservatorship to the court only if no suitable
6alternatives are available. This officer shall render to the court a
7written report of investigation prior to the hearing. The report to
8the court shall be comprehensive and shall contain all relevant
9aspects of the person’s medical, psychological, financial, family,
10vocational, and social condition, and information obtained from
11the person’s family members, close friends, social worker, or
12
principal therapist. The report shall also contain all available
13information concerning the person’s real and personal property.
14The facilities providing intensive treatment or comprehensive
15evaluation shall disclose any records or information which may
16facilitate the investigation. If the officer providing conservatorship
17investigation recommends against conservatorship, he or she shall
18set forth all alternatives available. A copy of the report shall be
19transmitted to the individual who originally recommended
20conservatorship, to the person or agency, if any, recommended to
21serve as conservator, and to the person recommended for
22conservatorship. The court may receive the report in evidence and
23may read and consider the contents thereof in rendering its
24judgment.
25(b) Notwithstanding Section 5328, when a court with
jurisdiction
26over a person in a criminal case orders an evaluation of the person’s
27mental condition pursuant to Section 5200,begin insert and that evaluation
28leads to a conservatorship investigation,end insert the officer providing the
29conservatorship investigation shall serve a copy of the report
30required under subdivision (a) upon the defendant or the
31defendant’s counsel. Upon the prior written request of the
32defendant or the defendant’s counsel, the officer providing the
33conservatorship investigation shall also submit a copy of the report
34to the court hearing the criminal case, the district attorney, and the
35county probation department. The conservatorship investigation
36report and the information contained in that report, shall be kept
37confidential and shall not be further disclosed to anyone without
38the prior written consent
of the defendant. After disposition of the
39criminal case, the court shall place all copies of the report in a
40sealed file, except as follows:
P7 1(1) The defendant and the defendant’s counsel may retain their
2copy.
3(2) If the defendant is placed on probation status, the county
4probation department may retain a copy of the report for the
5purpose of supervision of the defendant until the probation is
6terminated, at which time the probation department shall return
7its copy of the report to the court for placement into the sealed file.
Pursuant to paragraph (2) of subdivision (b) of Section
93 of Article I of the California Constitution, the Legislature finds
10and declares all of the following:
11(a) Any limitations to public access to conservator investigation
12reports pursuant to subdivision (b) of Section 5354 of the Welfare
13and Institutions Code as proposed by this act are necessary to
14protect the privacy rights of the proposed conservatee pursuant to
15Section 1 of Article I of the California Constitution.
16(b) The interests in protecting the privacy rights of the proposed
17conservatee in this situation strongly outweigh the public
interest
18in having access to personally identifiable information about the
19
person and his or her need for and access to mental health services.
20Moreover, protection of the person’s privacy rightsbegin delete areend deletebegin insert is end insert necessary
21to prevent the chilling effect on access to needed mental health
22services that would occur if the information were to be made
23public.
If the Commission on State Mandates determines that
25this act contains costs mandated by the state, reimbursement to
26local agencies and school districts for those costs shall be made
27pursuant to Part 7 (commencing with Section 17500) of Division
284 of Title 2 of the Government Code.
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