BILL ANALYSIS �
AB 2190
Page 1
Date of Hearing: April 22, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2190 (Maienschein) - As Introduced: February 20, 2014
SUMMARY : Allows the court to place a person found to be
incompetent to stand trial (IST) or not guilty by reason of
insanity (NGI) on outpatient status without prior confinement
for a specified period within a mental health treatment
facility, as specified, and requires a conservatorship
investigator to submit a copy of his or her report, upon the
request of the defendant or his or her attorney, to specified
entities in a criminal case. Specifically, this bill :
1)Provides that outpatient status may be available to a person
who otherwise is required to be confined in a state hospital
or other treatment facility for 180 days or more for the
commission of a specified felony offense if 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, including the victim and his or her
family.
2)Requires the court to consider all of the following criteria
before it may place any person who has been found IST or NGI
for a specified felony offense (listed in Existing Law #1) on
outpatient status:
a) Whether the state hospital director or other treatment
facility to which the person has been committed advises the
committing court and the prosecutor that the defendant
would no longer be a danger to the health and safety of
others, including himself or herself, while under
supervision and treatment in the community and the
defendant will benefit from that status; and,
b) Whether the community program director advises the court
that the defendant will benefit from that status and
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identifies an appropriate program of supervision and
treatment.
3)Requires the prosecutor, before release of a person as
specified above, to provide notice of the hearing date and
pending release to the committing-offense victim (or his or
her next of kin) where a request for the notice has been filed
with the court.
4)Requires the court to consider all of the following criteria
before it may place any person who has been found IST or NGI
for a misdemeanor or non-specified felony offense on
outpatient status:
a) In the case of a person who is an inpatient, whether the
state hospital director or other treatment facility to
which the person has been committed advises the court that
the defendant will not be a danger to the health and safety
of others while on outpatient status and that he or she
will benefit from such outpatient status; and,
b) In all cases, whether the community program director or
a designee advises the court that the defendant will not be
a danger to the health and safety of others while on
outpatient status, will benefit from such status, and
identifies an appropriate program of supervision and
treatment.
5)Requires the court, prior to determining whether to place the
person on outpatient status, to provide actual notice to the
prosecutor, defense attorney, and victim and to hold a hearing
at which the court may specifically order outpatient status
for the person.
6)Requires the officer providing a conservatorship
investigation, when a court with jurisdiction over a person in
a criminal case orders an evaluation of the person's mental
condition, as specified, to serve a copy of the report upon
the defendant or his or her attorney. Requires, upon request
of the defendant or his or her attorney, the officer providing
the conservatorship investigation to submit a copy of the
report to the court hearing the criminal case, the district
attorney, and the county probation department.
7)Requires that the conservatorship investigation report, and
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the information contained in it, to be kept confidential and
not further disclosed to anyone without the prior written
consent of the defendant.
8)Requires the court to place all copies of the report in a
sealed file after disposition of the criminal case, except
that the defendant and his or her attorney may retain their
copies and, if the defendant is placed on probation status,
the probation department may retain a copy for the purpose of
supervision until probation is terminated, at which time the
department is required to return its copy to the court for
placement in the sealed file.
9)Makes legislative findings and declarations relative to a
conservatee's privacy rights.
EXISTING LAW :
1)Prohibits any person charged with and found incompetent on a
charge of, convicted of, or found NGI of the following
felonies from being released on outpatient status unless the
person has been confined in a state hospital or other
treatment facility for at least 180 days:
a) Murder;
b) Mayhem;
c) Aggravated mayhem;
d) Kidnapping, kidnapping for ransom, or kidnapping during
the commission of a carjacking and the victim suffered the
intentional infliction of great bodily harm (GBI);
e) Robbery or carjacking with a deadly or dangerous weapon
and the victim suffers GBI;
f) Arson that causes GBI or causes an inhabited structure
or property to burn;
g) Rape accomplished by means of force by giving the victim
an intoxicating, anesthetic substance or controlled
substance or retaliation has been threatened against the
victim, as specified;
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h) Rape of a spouse accomplished by means of force or
threat of retaliation;
i) Burglary in the first degree;
j) Assault with intent to commit mayhem, rape, sodomy, oral
copulation rape in concert with another, lascivious acts
upon a child, or penetration of genitals or anus with a
foreign object which result in GBI to the victim;
aa) Lewd and lascivious acts;
bb) Carrying or placing an explosive or destructive devise
on a passenger vessel, aircraft, car or other vehicle;
cc) Possession of an explosive or destructive devise in
public places such as a theatre, hall, college, church,
hotel, other public building or in, on, or near specified
public transportation;
dd) Wrongful possession of an explosive or destructive
devise with intent to injure or intimidate; or,
ee) Any felony involving death, GBI, or an act which poses a
serious threat of bodily injury to another person. (Pen.
Code, � 1601, subd. (a).)
2)Allows any person subject to the provision above to be placed
on outpatient status if all of the following conditions are
satisfied:
a) The director of the state hospital or other treatment
facility to which the person has been committed advises the
committing court and the prosecutor that the defendant
would no longer be a danger to the health and safety of
others, including himself or herself, while under
supervision and treatment in the community and will benefit
from that status;
b) The community program director advises the court that
the defendant will benefit from that status and identifies
an appropriate program of supervision and treatment; and,
c) Requires the prosecutor to provide notice of the hearing
date and pending release to the committing-offense victim
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(or his or her next of kin) where a request for the notice
has been filed with the court, and after a hearing in
court, the court specifically approves the recommendation
and plan for outpatient status, as specified. (Pen. Code,
� 1603.)
3)Authorizes a court to grant outpatient status, prior to actual
confinement in a state hospital or other treatment facility,
to any person charged with and found incompetent on a charge
of, or convicted of, any misdemeanor or any non-specified
felony or found NGI of any misdemeanor. (Pen. Code, � 1601,
subd. (b).)
4)Allows any person subject to provision above to be placed on
outpatient status if all of the following conditions are
satisfied:
a) In the case of a person who is an inpatient, the
director of the state hospital or other treatment facility
to which the person has been committed advises the court
that the defendant will not be a danger to the health and
safety of others while on outpatient status and will
benefit from such outpatient status;
b) In all cases, the community program director or a
designee advises the court that the defendant will not be a
danger to the health and safety of others while on
outpatient status, will benefit from such status, and
identifies an appropriate program of supervision and
treatment; and,
c) After actual notice to the prosecutor and defense
attorney, and after a hearing in court, the court
specifically approves the recommendation and plan for
outpatient status. (Pen. Code, � 1602, subd. (a).)
5)Provides that any person alleged, as a result of mental
disorder, to be a danger to himself or others or to be gravely
disabled may be given an evaluation of his condition under a
superior court order, as specified. Requires that the
evaluation be carried out with the utmost consideration for
the privacy and dignity of the person for whom a court-ordered
evaluation is requested. (Welf. & Inst. Code, � 5200.)
6)Provides that a conservator of the person, of the estate, or
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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. (Welf. & Inst. Code, �
5350.)
7)Requires the officer providing 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 set forth all
alternatives available if he or she recommends against
conservatorship. Requires this officer, prior to the hearing,
to render to the court a comprehensive written report that
contains all relevant aspects of the person's medical,
psychological, financial, family, vocational and social
condition; information obtained from the person's family
members, close friends, social worker or principal therapist;
and all available information concerning the person's real and
personal property. Requires the facilities providing
intensive treatment or comprehensive evaluation to disclose
any records or information that may facilitate the
investigation. (Welf. & Inst. Code, � 5354.)
8)Requires a copy of the officer's report to be transmitted to
the individual who originally recommended conservatorship, to
the person or agency, if any, recommended to serve as
conservator, and to the person recommended for
conservatorship. Allows the court that is determining
conservatorship to receive the report in evidence and to read
and consider its contents in rendering its judgment. (Welf. &
Inst. Code, � 5354.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "By giving the
courts the option to place offenders with mental disorders in
an outpatient setting, offenders can be given the treatment
that is most appropriate for them. Not only does this give the
courts more tools to properly treat mentally disordered
offenders but there is substantial evidence for cost saving as
well. Also, by permitting defendants to authorize the release
of their conservatorship reports to criminal courts, we can
improve coordination and treatment efforts between
conservatorship courts and criminal courts."
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2)Outpatient Status for Mentally Disordered &
Developmentally-Disabled Offenders : In 2008, then-California
Chief Justice George established the Task Force for Criminal
Justice Collaboration on Mental Health Issues, charging it
with crafting policy recommendations to improve the state's
responses to offenders with mental illness. In its final
report, the task force stated, "Courts, in collaboration with
state hospitals and local mental health treatment facilities,
should create and employ methods that prevent prolonged delays
in case processing and ensure timely access to restoration
programs for defendants found incompetent to stand trial."
(Task Force for Criminal Justice Collaboration on Mental
Health Issues, Judicial Council of California, Final Report
(Apr. 2011) p. 27
[as of Apr. 14, 2014].) Among the
recommendations proffered by the task force are that the
"[s]tate hospitals and mental health outpatient programs
should be adequately funded to ensure effective and timely
restoration of competency"; increase community placement
options through the Forensic Conditional Release Program and
other community-based programs for IST defendants charged with
nonviolent offenses; and modify existing law to provide courts
hearing competency matters more alternative procedural and
disposition tools, including "the jurisdiction to
conditionally release a defendant found incompetent to stand
trial to the community, where appropriate, rather than in a
custodial or hospital setting, to receive mental health
treatment with supervision until competency is restored."
(Id. at p. 29.) This bill seeks to codify the task force
recommendation of allowing courts to place IST defendants on
outpatient status if the court finds the placement would
provide the person with more appropriate mental health
treatment and would not pose a danger to the health or safety
of others.
3)Conservatorship Investigator Report for Gravely-Disabled
Persons : The Task Force for Criminal Justice Collaboration on
Mental Health Issues also recognized that "[s]ome criminal
defendants with mental illness may be conserved or may be
involved in conservatorship proceedings at the same time that
their criminal case is being processed. Because these cases
are currently heard by different judicial officers on
different calendars, judicial officers hearing either the
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civil or criminal case often do not have all applicable
information, which can result in conflicting orders and other
complications for the defendant." (Task Force Final Report at
p. 22.) This bill also seeks to address this concern raised
by the task force by providing a court with criminal
jurisdiction over a person, when requesting that person to
undergo a mental evaluation and at the defendant or his or her
attorney's request, to be able to review the information
gathered for the evaluation and use it in guiding the
disposition of the person's criminal case.
4)Argument in Support : The Judicial Council states that "[b]y
permitting courts to place certain mentally disordered
offenders in outpatient settings AB 2190 permits courts to
make placements that are most appropriate for an individual
defendant, which can result in cost savings, while still
protecting the public." Additionally, "[b]y permitting
defendants to authorize release of conservatorship reports to
criminal courts, the bill increases the options available to
criminal courts when handling cases involving mentally
disordered offenders, and improves coordination between
conservatorship courts and the criminal courts."
5)Argument in Opposition : The California Public Defenders
Association opposes "the proposed Penal Code section 1602(b).
The provisions of Penal Code section 1602 apply only to
persons who have been charged with non-violent felonies or
misdemeanors. It is a waste of scarce judicial resources to
add notice and hearing requirements before placing such
individuals on outpatient status." Additionally, the
Association opposes "the proposed Welfare & Institutions Code
section 5354(b) because it is an encroachment on the privacy
rights of the proposed conservatee. Defendant and defense
counsel will be subjected to pressure to provide the
conservatorship report in order to obtain a better disposition
for the defendant. Although defense counsel may informally
show the report to the parties now, knowing that the parties
will have their own hard copies will have a chilling effect on
the individual seeking mental health treatment and cooperating
with the mental health evaluator."
6)Current Legislation :
a) AB 2186 (Lowenthal) seeks to change the process of the
involuntary administration of antipsychotic mediation of
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individuals who are found to be incompetent to stand trial.
AB 2186 is pending in this committee.
b) AB 2625 (Achadjian) would require the return to court,
as specified, of a defendant who was confined to a state
hospital for treatment to regain competency if the treating
facility reports that there is no substantial likelihood
that the defendant will regain competence in the
foreseeable future. AB 2625 is pending in this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council (Sponsor)
Californians for Safety and Justice
Legal Services for Prisons with Children
National Association of Social Workers, California Chapter
Opposition
California Public Defenders Association
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744