BILL ANALYSIS �
SB 1412
Page 1
Date of Hearing: June 17, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1412 (Nielsen) - As Amended: June 9, 2014
As Proposed to be Amended in Committee
SUMMARY : Applies procedures relative to persons who are
incompetent to stand trial (IST) to persons who may be mentally
incompetent and face revocation of probation, mandatory
supervision, postrelease community supervision (PRCS), or
parole. Specifically, this bill :
1)Provides that only a court trial is required to determine
competency in any proceeding for a violation of probation,
mandatory supervision, PRCS, or parole.
2)Allows the court, except as specified, to order any of the
following if the defendant is found mentally incompetent
during a PRCS or parole revocation hearing:
a) Order the defendant to undergo treatment, as authorized,
for restoring the defendant to competency if the court
determines that there is a reasonable likelihood that the
defendant may be restored to competency and returned to
court to face the revocation proceedings no later than 180
days from the date of his or her arrest;
b) Dismiss the pending revocation matter and return the
defendant to supervision, and either of the following:
i) Modify the terms and conditions of supervision to
include appropriate mental health treatment; or,
ii) Refer the matter to the public guardian of the
county of commitment to initiate conservatorship
proceedings; or,
c) Refer the matter to any local mental health court,
reentry court, or other collaborative justice court
available for improving the defendant's mental health.
SB 1412
Page 2
3)Repeals law held unconstitutional relative to misdemeanor-only
provisions in IST cases.
4)Makes conforming changes to apply procedures relative to
persons who are IST to persons who may be mentally incompetent
and face revocation of probation, mandatory supervision, PRCS,
or parole.
EXISTING LAW :
1)Provides that numerous, specified felonies are punishable by a
sentence of imprisonment in county jail-not prison-unless the
crime of conviction or the defendant's criminal history makes
him or her ineligible for serving the felony sentence in jail.
Provides that a felony jail term is for 16 months, two years,
or three years, unless otherwise specified. (Pen. Code, �
1170, subd. (h).)
2)Provides that the following felons are prohibited from serving
an executed felony sentence in county jail:
a) A defendant who has a prior or current conviction for a
serious felony, as described, or a violent felony, as
described;
b) A defendant who has a prior conviction in another
jurisdiction for an offense that has all the elements of a
serious or violent felony in California, as specified;
c) A defendant who is required to register as a sex
offender; and,
d) A defendant who 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).)
3)Provides that where a court sentences a defendant for a jail
felony pursuant to realignment, the court may impose the full
lower, middle, or upper term for the offense or 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).)
SB 1412
Page 3
4)Provides that specified inmates released from prison after
serving a determinate term are subject to PRCS. Requires PRCS
to be provided by a county agency designated by the board of
supervisors and to be consistent with evidence-based
practices. (Pen. Code, � 3451, subd. (a).)
5)Prohibits a person from being tried or adjudged to punishment
while that person is mentally incompetent. (Pen. Code, �
1367, subd. (a).)
6)Defines "mental incompetency" as when an individual who, as a
result of mental disorder or developmental disability, is
unable to understand the nature of the criminal proceedings or
to assist counsel in the conduct of a defense in a rational
manner. (Pen. Code, � 1367, subd. (a).)
7)Requires, if during the pendency of an action and prior to
judgment, a doubt arises in the mind of the judge as to the
mental competence of the defendant, the judge to state that
doubt on the record and inquire of the defendant's attorney
whether, in the opinion of that attorney, the defendant is
mentally competent. Requires the court, at the request of the
defendant or his or her attorney, to recess the proceeding for
as long as may be reasonably necessary to permit counsel to
confer with the defendant and to form an opinion as to the
mental competence of the defendant. (Pen. Code, � 1368, subd.
(a).)
8)Requires the trial to determine mental competency to proceed
as follows:
a) Requires the court to appoint a psychiatrist or licensed
psychologist to examine the defendant and to appoint two
psychiatrists or licensed psychologists if the defendant is
not seeking a finding of mental incompetence. Requires the
examining psychiatrist or licensed psychologist to evaluate
the nature of the defendant's mental disorder, if any; the
defendant's ability or inability to understand the nature
of the criminal proceedings or assist counsel in the
conduct of a defense in a rational manner; and whether
treatment with antipsychotic medications is medically
appropriate for the defendant and whether antipsychotic
medication is likely to restore the defendant to
competency.
SB 1412
Page 4
b) Requires the defendant's attorney to offer evidence in
support of the allegation of mental incompetence.
c) Requires the prosecution to present its case regarding
the issue of the defendant's present mental competence.
d) Allows each party to 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.)
9)States that if the defendant is found mentally competent, the
criminal process shall resume, the trial on the offense
charged shall proceed, and judgment may be pronounced. (Pen.
Code, � 1370, subd. (a)(1)(A).)
10)Requires, if the defendant is found mentally incompetent, the
trial or judgment to be suspended until the person becomes
mentally competent. (Pen. Code, � 1370, subd. (a)(1)(B).)
11)Allows, until January 1, 2016 and upon the concurrence of the
county board of supervisors, the county mental health
director, and the county sheriff, a county jail to be
designated a "treatment facility" and to provide
medically-approved medicine to defendants found to be mentally
incompetent and unable to provide consent due to a mental
disorder, provided that the defendant's treatment does not
exceed 6 months, except as specified, and does not abrogate or
limit provisions of law enacted to ensure the defendant's
constitutional due process rights. (Pen. Code, �� 1369.1 &
1370, subd. (a)(2)(A).)
12)Requires a court to issue an order authorizing the treatment
facility to involuntarily administer antipsychotic medication
to a defendant when prescribed by the defendant's treating
psychiatrist if the court finds any of the following
conditions to be true:
a) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder
requires medical treatment with antipsychotic medication,
and, if the defendant's mental disorder is not treated with
antipsychotic medication, it is probable that serious harm
to the physical or mental health of the patient will
result.
SB 1412
Page 5
i) Probability of serious harm to the physical or
mental health of the defendant requires evidence that the
defendant is presently suffering adverse effects to his
or her physical or mental health or the defendant has
previously suffered these effects as a result of a mental
disorder and his or her condition is substantially
deteriorating.
ii) The fact that a defendant has a diagnosis of a
mental disorder does not alone establish probability of
serious harm to the physical or mental health of the
defendant.
b) The defendant is a danger to others, in that the
defendant 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 substantial physical harm on another that
resulted in his or her being taken into custody, and the
defendant presents, as a result of a mental disorder or
mental defect, a demonstrated danger of inflicting
substantial physical harm on others.
i) Demonstrated danger may be based on an assessment of
the defendant's present mental condition, including a
consideration of past behavior of the defendant within
six years prior to the time the defendant last attempted
to inflict, inflicted, or threatened to inflict
substantial physical harm on another, and other relevant
evidence.
c) The people have charged the defendant with a serious
crime against a person or property, involuntary
administration of antipsychotic medication is substantially
likely to render the defendant competent to stand trial,
the medication is unlikely to have side effects that
interfere with the defendant's ability to understand the
nature of the criminal proceedings or to assist counsel in
the conduct of a defense in a reasonable manner, less
intrusive treatments are unlikely to have substantially the
same results, and antipsychotic medication is in the
patient's best medical interest in light of his or her
medical condition. (Pen. Code, � 1370, subd. (a)(2)(B).)
SB 1412
Page 6
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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 probation revocation hearings, they are
silent with respect to revocation hearings for offenders on
PRCS and mandatory [supervision]. 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)Competency to Stand Trial : The standard in American
jurisprudence regarding a person's mental fitness to stand
trial was laid out by the U.S. Supreme Court in Dusky v.
United States. The Court stated that "the test must be
whether [the defendant] has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
SB 1412
Page 7
understanding-and whether he has a rational as well as factual
understanding of the proceedings against him." (Dusky v.
United States (1960) 362 U.S. 402, 402 [internal quotations
omitted].) California has codified this standard in Penal
Code section 1367, subdivision (a), which bars a person from
being tried or adjudged to punishment if that person, "as a
result of mental disorder or developmental disability, ? is
unable to understand the nature of the criminal proceedings or
to assist counsel in the conduct of a defense in a rational
manner." (Pen. Code, � 1367, subd. (a).) If the court finds
a defendant mentally incompetent to stand trial, the person is
committed to a state hospital or other (inpatient or
outpatient) treatment facility for treatment to regain
competency in order to be brought back to court to face the
charges against him or her. (Pen. Code, � 1370, subd. (a).)
3)Involuntary Medication of Incompetent Defendants : In
Washington v. Harper, the U.S. Supreme Court held that a
mentally-ill prisoner who is a danger to himself or others can
be involuntarily medicated. (Washington v. Harper (1990) 494
U.S. 210.) Furthermore, the Court held in Riggins v. Nevada
that forced medication in order to render a defendant
competent to stand trial for murder was constitutionally
permissible. (Riggins v. Nevada (1992) 504 U.S. 127.) Read
together, the Court has stated that these two cases "indicate
that the Constitution permits the Government involuntarily to
administer antipsychotic drugs to a mentally ill defendant
facing serious criminal charges in order to render that
defendant competent to stand trial, but only if the treatment
is medically appropriate, is substantially unlikely to have
side effects that may undermine the fairness of the trial,
and, taking account of less intrusive alternatives, is
necessary significantly to the further important governmental
trial-related interests." (Sell v. United States (2003) 539
U.S. 166, 179.)
In Sell, the Court goes on to further specify the limited
circumstances when the U.S. Constitution permits the
government to administer drugs to a pretrial detainee against
the detainee's will. It finds that all of the following
conditions must apply:
a) A court must find that important governmental interests
are at stake. While bringing to trial a person accused of
a serious crime is an important government interest, and
SB 1412
Page 8
timely prosecution satisfies the literal aspect of this
element, that alone does not satisfy the purpose as there
may be special circumstances that lessen its importance in
a particular case. Consequently, this analysis must be
done on a case-by-case basis. (Id. at 180; Carter v.
Superior Court (2006) 141 Cal.App.4th 992, 1002.)
b) A "court must conclude that involuntary medication will
significantly further those concomitant state interests.
It must find that administration of the drugs is
substantially likely to render the defendant competent to
stand trial." (Sell, supra, 539 U.S. at 181.)
c) A court must find that the administration of the drugs
is "substantially unlikely" to have side effects that
interfere significantly with the person's ability to assist
his or her counsel in conducting a defense. (Id.)
d) A court must find that involuntary medication is
necessary to further those interests and that alternative,
less intrusive treatments are unlikely to achieve
substantially the same results. (Id.)
e) A court must find that administering the medication is
medically appropriate, that is to say, in the inmate's best
medical interest in light of his or her condition. (Id.)
Statute requires that before making the order to commit a
defendant to a state hospital or other treatment facility, the
court must make a determination on whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication. (Pen. Code, � 1370, subd.
(a)(2)(B)(i); see Existing Law #12.) Upon a finding of any of
the specified conditions, the court is required to issue an
order authorizing the treatment facility to involuntarily
administer medication to the defendant as prescribed by his or
her treating psychiatrist (Pen. Code, � 1370, subd.
(a)(2)(B)(ii).), with the defendant's capacity to make
decisions concerning antipsychotic medications being reported
to the court at six-month intervals. (Pen. Code, � 1370,
subd. (b)(2).) This bill would apply this same requirement
and procedure to defendants facing revocation of probation,
mandatory supervision, PRCS, or parole and whom the court
finds incompetent. It is questionable, however, if
involuntarily medicating a defendant to regain competency to
SB 1412
Page 9
face the possible revocation of misdemeanor probation meets
the "serious criminal charges" standard set by the Court in
Sell.
4)Competency Evaluation of Misdemeanor Defendants : In Pederson
v. Superior Court of Los Angeles County (2003) 105 Cal.App.4th
931, the court examined the validity of the statute-Penal Code
section 1367.1-that lays out the process to evaluate
competency for misdemeanor-only defendants. The court
determined that the statute was a violation of the defendant's
equal protection rights as it required the defendant to
undergo evaluation and treatment prior to a competency
determination that was not required for defendants charged
with felony offenses. Striking down the statute as
unconstitutional, the court held that the misdemeanor-only
competency evaluations should be handled the same as felony
competency evaluations, that is, according to Penal Code
section 1368. This bill would repeal Penal Code section
1367.1, which the court held was unconstitutional.
5)Argument in Support : According to the California State
Sheriffs' Association , this bill "clarifies the process by
which persons placed on postrelease community supervision or
mandatory supervision can be restored to competency in the
event the person is deemed mentally incompetent. This measure
will also ensure that medication necessary to restore a person
to competency may continue once a person is released from
custody."
6)Current Legislation :
a) AB 2186 (Lowenthal) would allow the representative of
any facility where a defendant found incompetent to stand
trial is committed, and specified others, to petition for
an order to involuntarily medicate the defendant and allow
any facility housing him or her to involuntary administer
the medication. AB 2186 is pending in the Senate Committee
on Appropriations.
b) AB 2190 (Maienschein) would allow the court to place a
person found to be incompetent to stand trial or not guilty
by reason of insanity on outpatient status without prior
confinement for a specified period within a mental health
treatment facility. AB 2190 is awaiting a hearing in the
Senate Committee on Health.
SB 1412
Page 10
c) AB 2625 (Achadjian) would require the return to court 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 the Senate Committee on
Appropriations.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
California Council of Community Mental Health Agencies
California State Sheriffs' Association
Mental Health America of California
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744