BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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6
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AB 2625 (Achadjian) 5
As Amended April 24, 2014
Hearing date: June 10, 2014
Penal Code
JM:sl
PERSONS INCOMPETENT TO STAND TRIAL OR FACE JUDGMENT
HISTORY
Source: Department of State Hospitals
Prior Legislation: AB 1907 (Lowenthal) Ch. 814, Stats. 2012
AB 366 (Allen) Ch. 654, Stats. 2011
SB 1794 (Perata) - Ch. 486, Stats. 2004
Support:California Association of Psychiatric Technicians;
California District Attorneys Association; California
State Sheriffs' Association; Judicial Council of
California; Los Angeles County Sheriff
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUES
SHOULD A DEFENDANT IN TREATMENT WHO WILL NOT LIKELY REGAIN
COMPETENCE BE RETURNED TO COURT WITHIN 10 DAYS OF THE COURT'S
RECEIPT OF THE REPORT CONCLUDING THAT THE DEFENDANT WILL NOT REGAIN
COMPETENCE?
SHOULD THE TREATMENT FACILITY DIRECTOR NOTIFY THE PROSECUTOR AND
DEFENSE COUNSEL OF THE REPORT AND NOTIFY THE SHERIFF IN THE
COMMITTING COUNTY THAT THE DEFENDANT NEEDS TRANSPORTATION TO COURT?
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SHOULD AN INCOMPETENT DEFENDANT BE RETURNED TO COURT NO LATER THAN
90 DAYS PRIOR TO THE END OF THE PERIOD THAT HE OR SHE CAN BE HELD
FOR TREATMENT?
PURPOSE
The purpose of this bill is to 1) require the committing court
to order an incompetent (IST) defendant returned to court from
the treating facility within 10 days of the court's receipt of a
report concluding that the IST defendant will not regain
competence within the foreseeable future; 2) direct the court to
institute conservatorship proceedings upon the IST defendant's
return to court; 3) require the director of the treating
facility to notify defense counsel and the prosecutor of the
finding that the IST defendant will not regain competence and
inform the sheriff in the county of commitment that the
defendant must be transported to court; and 4) require that a
defendant be returned to court no later than 90 days prior to
the end of the period during which he or she can be held for
treatment.
Existing law states that a person cannot be tried or adjudged to
punishment while he or she is mentally incompetent (IST -
incompetent to stand trial). (Pen. Code Section 1367, subd.
(a).)
Existing law provides that a defendant is IST where he or she
has a mental disorder or developmental disability that renders
him or her unable to understand the nature of the criminal
proceedings or assist counsel in his or her defense. (Pen. Code
� 1367, subd. (a).)
Existing law states that if the court has a doubt as to whether
or not a defendant is IST, the court shall state that doubt on
the record and shall seek defense counsel's opinion as to the
defendant's competence. (Pen. Code � 1368, subd. (a).)
Existing law provides the following hearing procedures to
determine whether the defendant is mentally competent or not:
The court shall appoint a psychiatrist or psychologist
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to examine the defendant. If the defendant is not seeking
a finding of mental incompetence, the court shall appoint
two psychiatrists or psychologists. The examining expert
shall evaluate the nature of the defendant's mental
disorder; his or her ability to understand the proceedings
or assist counsel in the conduct of a defense; and whether
or not treatment with medications is medically appropriate
and likely to restore the defendant to competency.
The counsel for the defendant shall offer evidence in
support of the allegation of mental incompetence.
The prosecution shall present its case regarding the
issue of the defendant's present mental competence.
Each party may present rebutting testimony, unless the
court, for good reason in furtherance of justice, also
permits other evidence in support of the original
contention. (Pen. Code � 1369)
Existing law states that if the defendant is found mentally
competent, the criminal process shall resume. (Pen. Code �
1370, subd. (a)(1)(A).)
Existing law states that if the defendant is found IST, the
matter shall be suspended until the person becomes mentally
competent. (Pen. Code � 1370, subd. (a)(1)(B).)
Existing law states that an incompetent defendant charged with a
violent felony (Pen. Code � 667.5, subd. (c) may not be
delivered to a state hospital or treatment entity that does not
have a secured perimeter or a locked and controlled treatment
facility. The court must determine that public safety will be
protected. (Pen. Code � 1370, subd. (a)(1)(D).)
Existing law states that prior to committing an IST defendant
for treatment, the court shall determine whether the defendant
consents to the administration of antipsychotic medications.
(Pen. Code � 1370, subd. (a)(2)(B).)
If the defendant consents, the commitment order shall
confirm that medication may be given to the defendant.
If the defendant does not consent to the administration
of medication, the court shall hear and determine whether
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any of the following is true:
o The defendant lacks capacity to make decisions
regarding medication, the defendant's mental disorder
requires treatment with medication, and, if the
defendant's mental disorder is not so treated, it is
probable that serious harm to the physical or mental
health of the patient will result. Probability of
serious harm is shown by evidence that the defendant is
presently suffering adverse effects to his or her
physical or mental health, or has previously suffered
these effects as a result of a mental disorder and his or
her condition is substantially deteriorating;
o The defendant is a danger to others, in that he or
she has inflicted, attempted to inflict, or made a
serious threat of inflicting substantial physical harm on
another while in custody, or the defendant had inflicted,
attempted to inflict, or made a serious threat of
inflicting such harm on another, for which the defendant
was taken into custody, and he or she presents, as a
result of mental disorder or mental defect, a
demonstrated danger of inflicting such harm on others.
Demonstrated danger may be based on the defendant's
present mental condition, including a consideration of
behavior within six years of the time the defendant
attempted to inflict, inflicted, or threatened to inflict
substantial physical harm on another, and other relevant
evidence;
o The defendant has been charged with a serious crime
against a person or property; involuntary administration
of anti-psychotic medication is substantially likely to
render the defendant competent; the medication is
unlikely to have side effects that interfere with the
defendant's ability to understand the criminal
proceedings or to assist counsel in the conduct of a
defense; less intrusive treatments are unlikely to have
substantially the same results; and anti-psychotic
medication is in the patient's best medical interest in
light of his or her medical condition. (Pen. Code �
1370, subd. (a)(2)(B)(ii)(I)-(III).); or,
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o If the court finds any of these grounds to be true,
the court shall authorize the treatment facility to
involuntarily administer anti-psychotic medication to the
defendant when and as prescribed by the defendant's
treating psychiatrist. (Pen. Code � 1370, subd.
(a)(2)(B)(iii).)
Existing law includes detailed procedures for review of orders
for involuntary anti-psychotic medication and to determine
whether a person committed as IST without a medication order
should be medicated. (Pen. Code � 1370, subd. (a)- (h).)
This bill changes the requirement that the medical director of
the state hospital or other treatment facility to which a
defendant is confined for treatment make a written report to the
court and county community program director concerning the
defendant's progress toward recovery of mental competence, from
within 90 days of the order of commitment to within 90 days of
admission .
This bill requires the following actions and procedures where a
progress report concerning an IST defendant concludes that there
is no substantial likelihood that he or she will regain
competence within the foreseeable future:
The committing court, within 10 days of its receipt of
the report, shall order that the IST defendant be returned
to court for initiation of conservatorship proceedings.
The medical director of the state hospital or other
treatment facility to which a defendant is confined for
treatment to regain mental shall do the following:
o Promptly notify and provide a copy of the
report to the defendant's attorney and the district
attorney; and,
o Provide a separate notification, in compliance
with applicable privacy laws, to the committing
county's sheriff that transportation will be needed
for the patient.
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This bill requires that a defendant committed to a state
hospital for treatment to regain mental competency, but who has
not recovered competence, to be returned to the committing court
no later than 90 days before the expiration of the defendant's
term of commitment.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
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currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
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out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Currently, patients are taken into Department of State
Hospitals (DSH) custody in order to assist in the
patients' restoration of competency. IST is a program
DSH administers to get a patient to the point that
they may stand trial. Some patients are deemed as
unable to regain competency and are supposed to be
sent back into the custody of the committing county.
Many counties end up not retrieving their patients and
those people remain at a State Hospital, which costs
the state approximately $200,000 per year, per
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patient. AB 2625 simply establishes guidelines for
getting the patient back in possession of their
county. First, the bill requires the medical director
of the state hospital to notify the defense counsel
and the district attorney of the committing county if
the inmate is unable to regain competence and that
they must be returned to the committing county within
10 days of this notification. They must also notify
the county's sheriff that transportation for the
patient is needed. Also, the bill provides that,
prior to the expiration of the three-year statutory
limit on being treated in the State Hospital, an IST
who has not recovered competence must be returned to
their committing county no later than 90 days prior to
the expiration of the three-year limit.
2. Basic Constitutional Issues in Mental Health Commitments
Commitment to a mental hospital involves a "massive curtailment
of liberty." (Humphrey v. Cady (1972) 405 U.S. 504, 509.) Such
commitment also creates severe social stigma. As such, due
process is required and proof must be by clear and convincing
evidence. (Addington v. Texas (1978) 441 U.S. 418, 425-433.)
However, "consistent with 'substantive' due process ? the state
may involuntarily commit persons who, as the result of mental
impairment, are unable to care for themselves or are dangerous
to others. Under these circumstances, the state's interest in
providing treatment and protecting the public prevails over the
individual's interest in being free from compulsory
confinement." (Hubbart v. Superior Court (1999) 19 Cal.4th
1138, 1151, citing Addington and other cases.) Nevertheless,
civilly committed persons are not subject to punishment.
(Kansas v. Hendricks (521 U.S. 346, 361-371.) While a
commitment statute is not invalidly punitive if treatment for a
person's is unavailable, treatment shall be provided or
attempted. (Kansas v. Hendricks (1997) 521 U.S. 346, 361-369;
Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1164-1178.)
3. Prohibition on Trial or Punishment of Incompetent Persons -
Principles and Issues
The principles underlying the law concerning persons who are IST
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or face punishment are different from, but related to, the due
process interests at stake in involuntary mental health
treatment, per se. A person is IST if a mental disorder renders
him or her incapable of understanding the charges or assisting
in his or her defense. (Pen. Code �1367, subd. (a).)
Convicting or adjudging to punishment a person who is IST is a
denial of due process. The conviction of a person who is
incompetent must be reversed. (Drope v. Missouri (1975) 420
U.S. 160, 179-183; Pate v. Robinson (1966) 383 U.S. 375,
383-386) Proceedings or findings in any critical portion of a
criminal case are invalid if the defendant was incompetent,
including preliminary hearing and imposition of sentence.
(People v. Humphrey (1975) 45 Cal.App.3d 32, 36, 38 People v.
Duncan (2000) 78 Cal.App.4th 765, 772
4. United States Supreme Court Decision Setting Constitutional
Requirements in Cases of Involuntary Administration of
Anti-psychotic Medication to Prison Inmates
In Washington v. Harper (1990) 494 U.S. 210, the U.S. Supreme
Court held that involuntary administration of anti-psychotic
medication to a prison inmate must comply with Fourteenth
Amendment due process, including the following: 1) If a
psychiatrist determines that the inmate needs anti-psychotic
medication, but the inmate does not consent, the state may
involuntary medicate the inmate only if he or she has a mental
disorder, and is gravely disabled or poses a danger to self or
others; 2) The inmate is entitled to a hearing before a
committee of health professionals not involved in his or her
treatment to determine if the required ground for involuntary
medication exists; 3) The inmate is entitled to an explanation
of why the medication is necessary; 4) The inmate is entitled to
present evidence and cross-examine staff witnesses and the
assistance of a knowledgeable lay advisor who has not been
involved in the inmate's case. (Ibid.) Fourth, there must be
periodic review of the order. (Id., at pp. 215-216.)
5. Sell v. United States - 2003 United States Supreme Court Case
on Involuntary Medication of IST Defendants
Sell concerned Charles Sell, a former practicing dentist with a
long history of mental illness. Sell was initially charged with
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insurance fraud, found to be competent and released on bail.
Bail was revoked when Sell threatened a witness. He was then
charged with two attempted murders. Sell moved for
reconsideration of the finding that he was competent to stand
trial. After evaluation, he was found IST. After two months he
refused anti-psychotic medication. Hospital staff sought
judicial authorization to involuntarily administer medication.
It appears that Sell, unlike many mentally ill defendants, had
capacity to make medical decisions. The court found that Sell
was not currently dangerous. Thus, he could not have been
involuntarily medicated on that basis.
SB 1794 (Perata) Ch. 486, Stats. 2004 adapted the Sell standards
to the California IST law. Involuntary administration of
anti-psychotic medication to IST defendants is allowed if one of
the following is shown:
The defendant is a danger to self or others;
The defendant is gravely disabled; or,
The defendant faces trial for a serious offense against
a person or property.
For each of these grounds, the court must also find that the
medication is necessary and appropriate and that less intrusive
means of treatment are not effective. Where the medication is
given to render a person competent for trial on a serious
offense, the court must find that the medication is unlikely to
have side effects that would interfere with the defendant's
ability to understand the criminal proceedings and assist
counsel. (Pen. Code � 1370, subd. (a)(2)(B)(ii)(III).)
6. Incompetency and Conservatorship
Under California law, an IST defendant may be committed to the
treatment facility for three years or the period equal to the
maximum term of imprisonment for the most serious underlying
offense with which he or she is charged, whichever is shorter.
(Pen. Code, � 1370, subd. (c)(1).) If the treatment facility
determines that there is no substantial likelihood that the
defendant will regain mental competence in the foreseeable
future or if the patient has not regained competency after this
period, the defendant is returned to the committing court.
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(Pen. Code, � 1370, subds. (b) & (c).)
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When a defendant is returned to the court as described above,
the court may determine if a conservatorship is the appropriate
course of action for the defendant. Before the court can
establish a conservatorship pursuant to Penal Code section 1370,
the court must make certain findings, namely that the defendant
is "gravely disabled" and that "by reason of a mental disease,
defect, or disorder, the person represents a substantial danger
of physical harm to others." (Conservatorship of Hofferber
(1980) 28 Cal.3d 161, 176-77.) The following conditions are
required for the court to find a defendant "gravely disabled":
(i) the indictment or information pending against the person at
the time of commitment charges a felony involving death, great
bodily harm, or a serious threat to the physical well-being of
another person; (ii) the indictment or information has not been
dismissed; and (iii) as a result of a mental health disorder,
the person is unable to understand the nature and purpose of the
proceedings taken against him or her and to assist counsel in
the conduct of his or her defense in a rational manner. (Welf.
& Inst. Code, � 5008, subd. (h)(1)(B).) Once these findings
have been made by the court, it may order the conservatorship
investigator of the committing county to initiate
conservatorship proceedings. (Pen. Code, � 1370, subd. (c)(2).)
If the defendant becomes mentally competent after a
conservatorship has been established, the conservator must
certify that fact to the sheriff, district attorney, committing
court, and defendant's attorney of record (Pen. Code, � 1372,
subd. (b).), as failure to resume court proceedings promptly
after the defendant regains competency may result in the
deprivation of the constitutional right to a speedy trial. (See
People v. Simpson (1973) 30 Cal.App.3d 177.)
7. Related Pending Bills: SB 1412 (Nielsen) and AB 2186
(Lowenthal)
There are two related bills that make significant changes to the
law governing persons who are incompetent to stand trial or
adjudged to punishment. These include AB 2186 (Lowenthal) and
SB 1412 (Nielsen). SB 1412 is pending in Assembly Public Safety
and AB 2186 is set for hearing on June 10, 2014 in this
Committee with this bill.
SB 1412 applies IST laws to cases involving persons on
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supervision under realignment, including those on mandatory
supervision after serving the custody portion of a split
sentence, former prison inmates on post release community
supervision and parolees supervised by state parole agents, but
subject to revocation of parole by the courts. The bill also
formally extends IST laws to persons on probation, many of whom
have been convicted of a crime but not yet adjudged to
punishment because the sentencing court stayed imposition of
judgment and sentence. There are thousands of persons on these
forms of supervision, but there is no law that specifically
governs IST procedures for these persons. However, subjecting
an incompetent person on supervision to a revocation hearing and
imposing penalties for a violation of the conditions of release
violates the federal constitution. Courts, however, have no
guidance for handling cases involving incompetent persons on
supervision under realignment.
AB 2186 (Lowenthal) largely concerns involuntary administration
of anti-psychotic medication. The bill requires courts to
consider the experts' reports on the basic issue of competence
when determining if the IST defendant should be involuntarily
medicated. Perhaps most important, SB 2186 provides that an
order for involuntary medication is valid at any facility
housing the defendant for purposes of return to competency and
resumption of criminal proceedings. This provision is intended
to address unfortunate circumstances where a defendant is
returned to competence at a state hospital, partly through the
use of involuntary medication, but the defendant is not
medicated when he or she returns to court and is housed in jail.
This occurs because existing law authorized administration of
medication through a court order at the facility where the IST
defendant is being treated. Defendants who are held in county
jail without medication - often for relatively long periods of
time as the criminal case resumes - can decompensate, reversing
the benefits of treatment and exacerbating the defendant's
underlying mental illness. Withdrawal from anti-psychotics can
be physically and emotionally difficult. If her or she loses
competence and is returned to DSH for treatment, the medication
may no longer be effective and could produce more problematic
side effects than in prior treatment.
AB 2186 also changes procedures for hearings on involuntary
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medication that are held after the need for medication arises
during treatment at a DSH or other facility, including authority
for the court to extend the treating psychiatrist's
certification of the necessity of medication until a full court
hearing can be held. The bill also broadens the ability of
prosecutors, county counsel and representatives of the facility
where the defendant is housed to petition for a medication
order.
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