BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1412 (Nielsen) 2
As Introduced: February 21, 2014
Hearing date: April 29, 2014
Penal Code
JM:sl
PERSONS INCOMPETENT TO STAND TRIAL:
MANDATORY SUPERVISION AND POST RELEASE SUPERVISION REVOCATION
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 366 (Allen) Ch. 654, Stats. 2011
SB 1794 (Perata) - Ch. 486, Stats. 2004
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD THE LAWS AND PROCEDURES CONCERNING PERSONS WHO ARE
INCOMPETENT TO STAND TRIAL BE APPLIED TO PERSONS ON POST RELEASE
COMMUNITY SUPERVISION AND MANDATORY SUPERVISION?
PURPOSE
The purpose of this bill is to provide that where a person who
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faces revocation of mandatory supervision or post release
community supervision (PRCS), may be mentally incompetent, the
laws and procedures concerning defendants who are incompetent to
stand trial or face judgment shall apply.
Realignment, Felony Jail Terms, Mandatory Supervision for Split
Jail Sentences and Postrelease Community Supervision of
Specified Released Prison Inmates
Existing law - commonly described as criminal justice
realignment - provides that numerous, specified felonies are
punishable by a sentence of felony imprisonment in county jail -
not prison - unless the crime of conviction or the defendant's
criminal history makes the defendant ineligible for serving his
or her felony sentence in jail. A felony jail term is for 16
months, two years or three years, or the term specified in
statute. (Pen. Code � 1170 subd. (h).)
Existing law provides that the following felons are
categorically prohibited from serving an executed felony
sentence in county jail:
The defendant has a prior or current felony conviction
for:
o a serious felony described in subdivision (c) of
Section 1192.7, or
o a violent felony described in subdivision (c) of
Section 667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a
serious or violent felony in California, as specified;
The defendant is required to register as a sex offender;
or
The defendant is convicted of a crime and as part of the
sentence receives an aggravated while collar crime
enhancement, as specified. (Pen. Code � 1170, subd.
(h)(3).)
Existing law provides that where a court sentences a defendant
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for a jail felony pursuant to Penal Code Section 1170,
subdivision (h), the court may impose the sentence as follows:
The full lower, middle or upper term for the offense.
The term for the offense, but with the last portion of
the term spent under mandatory supervision by the probation
department in the community. (Pen. Code �1170, subd.
(h)(5)(A)-(B).)
Existing law provides that specified inmates released from
prison after serving a determinate term are subject to PRCS.
PRCS shall be provided by a county agency designated by the
board of supervisors and shall be consistent with evidence-based
practices. (Pen. Code � 3451, subd. (a).)
Existing law provides that any prison inmate pending release,
who is in one of the following categories may not be placed on
postrelease community supervision:
An inmate imprisoned for serious or violent felony.
An inmate sentenced to a life term under the Three Strikes
law.
An inmate classified as a high-risk sex offender.
A mentally disordered offender. (Pen. Code � 3451, subd.
(b).)
Existing law provides that PRCS shall not extend beyond three
years from the date of the person's initial entry into PRCS,
except where the period is tolled, as specified. PRCS is
required to be 'implemented by a county agency according to a
strategy designated by each county's board of supervisors.
(Pen. Code �� 3451, subd. (c)(1) and 3455.)
Existing law sets out mandatory conditions of release to PRCS
including, among others, the following:
The defendant shall report to the supervising agency
within two days of release and as directed thereafter.
The defendant shall follow the directives of the agency.
The defendant shall report to the agency during the
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supervision period as directed.
The defendant shall inform the agency of his or her
place of residence, employment, education or training.
The defendant shall be subject to search and seizure
without a warrant.
The defendant shall report to the agency any anticipated
changes in residence, employment, education or training.
The defendant shall obtain prior approval before
traveling more than 50 miles from his or her residence and
shall obtain a travel pass to leave the state or country
for more than two days.
The defendant shall immediately inform the agency if he
or she is arrested or receives a citation for any offense.
The defendant shall not be in the presence of a firearm
or ammunition. (Penal Code � 3453.)
Existing law provides for "intermediate" and "appropriate"
sanctions for violations of the terms of PRSC before PRCS is
revoked. The sanctions include 'flash incarceration' for up to
10 days. (Pen. Code � 3454.)
Current law generally provides that persons released from state
prison on or after October 1, 2011, for any of the following
crimes are subject to parole supervision by the Department of
Corrections and Rehabilitation (CDCR):
A serious felony as described in subdivision (c) of
Section 1192.7;
A violent felony as described in subdivision (c) of
Section 667.5;
A crime for which the person has been sentenced to a
life term under the 3-strikes law;
Any crime where the person eligible for release from
prison is classified as a HighRisk Sex Offender;
Any crime where the person is required, as a condition
of parole, to undergo treatment by the Department of Mental
Health as a mentally ill offender; or,
Any felony committed while the person was on parole for
a period exceeding three years where the person was
required to register as a sex offender or was subject to
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parole for life, as specified. (Pen. Code � 3000.08; see
also Penal Code � 3451, subd. (b).)
Existing law authorizes parole officials to "impose additional
and appropriate conditions of supervision," upon a finding of
good cause that the parolee has committed a violation of law or
violated his or her conditions of parole; those may include
"rehabilitation and treatment services and appropriate
incentives for compliance, and impose immediate, structured, and
intermediate sanctions for parole violations, including flash
[short term] incarceration in a county jail. . . . (Penal
Code � 3000.08, subd. (d).)
Existing law provides that the parole agent or peace officer may
bring a parolee before the court for a violation of the
conditions of parole. If the court finds that the parolee has
violated a condition of parole, the court may impose any of the
following sanctions for parole violations, as specified:
Return the person to parole supervision with
modifications of conditions, if appropriate, including a
period of incarceration in county jail;
Revoke parole and order the person to confinement in the
county jail;
Refer the person to a reentry court pursuant to Section
3015 or other evidence-based program in the court's
discretion; or,
Confinement shall not exceed a period of 180 days in the
county jail. (Penal Code � 3000.08, subd. (f).)
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 incompetent to stand
trial (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).)
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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
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
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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
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 the he
or she has inflicted, attempted to inflict, or made a
serious threat of inflicting substantial physical 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
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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,
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 antipsychotic 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 applies the procedures and standards now applicable to
persons incompetent to stand trial to cases where a defendant on
PRCS or mandatory supervision faces revocation of his or her
conditional release.
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.
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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
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
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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 February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in 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:
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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:
For decades, California law has prohibited a person
from being tried or punished while that person is
mentally incompetent. The statutes governing
competency to stand trial apply not only to criminal
trials, but also to probation revocation hearings. In
the wake of realignment, two new classes of
supervision were created - mandatory supervision and
post-release community supervision (PRCS). Mandatory
supervision is the portion of a local prison sentence
served in the community under the supervision of a
probation officer. Every day served on mandatory
supervision is deducted from the original prison term.
PRCS effectively replaced parole for persons who were
sentenced to state prison for non-violent, nonserious,
and non-sexual crimes. Rather than being supervised
by a state parole agent upon release from state
prison, they are released on PRCS and supervised by
county probation departments. Unfortunately, while
the existing statutes apply to criminal trials and
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probation revocation hearings, they are silent with
respect to revocation hearings for offenders on PRCS
and mandatory. When these two classes of supervision
were created in AB 109, there were no corresponding
changes made to the laws governing competence.
As a result, there is no lawful mechanism to assist
these offenders when a judge or attorney suspects the
offender may not be competent to understand the
proceedings or assist their attorney in a PRCS or
mandatory supervision revocation hearing. SB 1412
takes the existing process for evaluating and treating
mentally incompetent defendants in criminal trials and
probation revocation hearings, and creates a similar
process for use in PRCS and mandatory supervision
revocation hearings.
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 create 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.)
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3. Prohibition on Trial or Punishment of Incompetent Persons -
Principles and Issues
The principles underlying the law concerning persons who are
incompetent to stand trial 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 violates 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) Proceeding 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. Jury Trial or Court Trial in IST Determinations
Prior to 1974, the governing law specifically provided that a
defendant has a right to a jury trial in a competency matter
upon demand. Penal Code � 1369 now simply refers to "a trial by
court or jury" without any further direction or explanation.
Courts still construe Section 1369 to confer a statutory right
to jury trial in a competency hearing. A defendant, however,
does not have a constitutional right to a jury trial, as a
competency hearing is a civil matter. (People v. Weaver (2001)
26 Cal.4th 876, 903-904; People v. Rojas (1981) 118 Cal.App.3d
278, 282-283)
There have been numerous discussions among interested parties on
this bill as to whether IST defendants on PRCS or mandatory
supervision should have the option of a jury trial. While a
defendant does not have a constitutional right to an IST jury
trial, providing IST jury trials to defendants facing jury trial
on guilt or innocence, but not to those facing revocation of
supervision status, could present questions of equal protection
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and due process. In determining an equal protection claim, the
court first determines whether the two classes of defendants are
similarly situated. If the defendants are similarly situated,
the court must determine if a fundamental constitutional right
is affected by the classifications. If a fundamental interest
or right is involved, different treatment of similarly situated
defendants will face strict scrutiny. If not, or if the persons
affected are not similarly situated, the state must simply show
a valid state interest. McGinnis v. Royster (1973) 410 U.S.
263; Tigner v. Texas (1940) 310 U.S. 141, 147.)
5. 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.)
6. 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
insurance fraud, found to be competent and released on bail.
Bail was revoked when Sell threatened a witness. He was then
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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. of 2004 adapted the Sell
standards to the California IST law. Involuntary administration
of anti-psychotic medication to IST defendants is allowed as
follows:
The defendant is a danger to self or others.
The defendant is gravely disabled.
The defendant faces trial for a serious offense against
a person or property. (Health & Saf. Code �1370, subd.
(a)(2)(B)(ii)(I)-(III).)
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For each of these grounds, the court must also find that the
medication is necessary and appropriate and that less intrusive
means or 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. (Health & Saf. Code �1370, subd. (a)(2)(B)(ii)(III).)
7. Amendments Requested by Judicial Council
The Judicial Council is keenly interested in this bill. Trial
courts must hear revocation proceedings for persons on mandatory
supervision, PRCS and parole. Each is a new class of supervisee
for courts. It has been noted frequently that many inmates and
persons on criminal justice supervision suffer from mental
illness, drug abuse problems or both. Mentally ill persons on
mandatory supervision, post release community supervision and
parole are coming before the courts on a daily basis. While the
defense attorney can opine as to whether a defendant or
supervised person is competent, the main responsibility to
express a doubt as to a person's competence falls to the court.
The court must appoint an expert to examine the possibly IST
person and then holding a hearing to determine IST status.
Judicial Council requests that the bill be amended to include
the following:
Apply the existing scheme to felony probation and parole
matters;
Create a new, shorter alternative for PRCS and parole
cases;
Delete 1367.1 - concerning special misdemeanor
provisions in IST cases - which was held unconstitutional
in Pederson v. Superior Court (2003) 105 Cal.App.4th
931;<1>
Authorize the defense to make a motion to dismiss a
--------------------------
<1> Penal Code Section 1367.1 is not included or amended in this
bill.
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revocation for lack of reasonable cause, as currently
authorized for felonies; and,
Provide that persons on supervision who face an IST
trial shall receive a trial before the court, not a jury.
As for the new procedure for parole and PRCS cases,
the intent is to empower courts with alternatives to
employ on a case-by-case basis. Specifically, under
the proposal, if a person on parole or PRCS is found
competent, the proceedings would resume but the formal
hearing must happen within a reasonable time and the
person may not be detained longer than 180 days from
the date of arrest. If incompetent, the court can (a)
if it seems practical, try to have the person restored
under our existing scheme but with shorter deadlines,
(b) dismiss the petition and return the person to
supervision with power to modify the terms to include
appropriate mental health treatment, (c) dismiss the
petition, return the person to supervision, and
initiate conservatorship proceedings, or (d) refer the
matter to any local mental health, reentry, or other
collaborative justice court available for improving
the mental health of the person.
8. IST Issues for Persons on Parole and Probation
As noted by the Judicial Council in Comment # 7, this bill does
not provide procedures for cases in which a person on parole
after serving a determinate prison term may be incompetent to
face a revocation proceeding. Such circumstances may not be
especially unusual, as many prison inmates suffer from mental
illness. Under criminal justice realignment, local courts hear
parole revocation allegations for persons released from prison
after serving a determinate term for a specified felony. Trial
courts could perhaps apply the procedures for persons facing
revocation of post release community supervision, as it could be
argued that the two classes of former prison inmates are
similarly situated. That is, persons on parole and PRCS are
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being supervised in the community, face revocation proceedings
in front of a superior court judge and can be incarcerated in
county jail for upon revocation. However, it could be argued
that excluding parolees from this bill indicates a legislative
decision to not include parolees in IST procedures.
The California District Attorneys Association (CDAA) - the
sponsor of the bill - appears to agree that parolees should be
included in this bill. However, CDAA argues that including
probationers facing revocation would be confusing, because
"[p]robation is already covered under Penal Code section1368
because probation occurs during the pendency of an action. A
case is not closed until a person has been sentenced to a term
of imprisonment."
However, Penal Code section 1368 may not be as clear as CDAA
believes. The section states: "If during pendency of an action
and prior to judgment" the person may be IST, the proceedings
shall be suspended and incompetence examined. In many cases,
judgment and sentence has been imposed, but only execution of
the sentence has been stayed when a person is placed on
probation. Assuming that probation occurs during pendency of
the action, it often occurs after judgment and sentencing.
Further, a grant of probation is a final judgment for purposes
of a defendant's right to appeal from a final judgment. (Pen.
Code � 1237.) Penal Code section 1368 could be amended to
clarify that it did include probationers, as follows: "If
during pendency of an action and prior to judgment, including a
term of probation, a doubt arises" as to the competence of the
defendant, IST proceedings should be instituted.
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