Bill Text: CA SB1095 | 2017-2018 | Regular Session | Amended

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Bill Title: Criminal proceedings: mentally incompetent offenders.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2018-05-25 - May 25 hearing: Held in committee and under submission. [SB1095 Detail]

Download: California-2017-SB1095-Amended.html

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Amended  IN  Senate  April 17, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill

No. 1095

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Introduced by Senator Anderson

February 13, 2018

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An act to amend Section 1370.02 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL'S DIGEST

SB 1095, as amended, Anderson. Criminal proceedings: mentally incompetent offenders.

Existing law prohibits a person from having his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. A defendant is mentally incompetent for these purposes if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. If a defendant is found mentally incompetent during postrelease community supervision or parole revocation hearings, existing law requires the court to dismiss the pending revocation matter and return the defendant to supervision, and authorizes the court take other action, including referring the matter to the public guardian of the county of commitment to initiate conservatorship proceedings only if there are no other reasonable alternatives to meet the defendant’s mental health needs, as specified.

This bill would delete the authority of the court to dismiss the pending revocation matter and would delete the above-described restriction on the court’s authority to order the matter to the public guardian. The bill would establish a process for delivering a defendant who is found mentally incompetent to a public or private treatment facility for up to 180 days or until the parolee’s date of discharge, whichever comes first, for the purpose of restoring the defendant’s competency, including procedures for involuntarily administering antipsychotic medication. provide a court with discretion when a defendant is found mentally incompetent during a postrelease community supervision or parole revocation hearing to either dismiss the pending revocation matter, as specified, or, 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, order the county sheriff to deliver the defendant to either a State Department of State Hospitals facility, as specified, or a public or private treatment facility, as specified, for treatment to restore the defendant to mental competency. The bill would require the defendant be returned to court to resume the revocation proceedings if the defendant is restored to competency within 180 days of arrest or before the defendant’s date of discharge, whichever is earlier. The bill would alternatively require the court to dismiss the pending revocation matter and return the defendant to supervision, as specified, if the defendant is not restored to competency within 180 days of arrest or before the defendant’s date of discharge, whichever comes first.

By increasing the duties of local officials, including the county mental health director and county public guardian, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1370.02 of the Penal Code is amended to read:

1370.02.

 (a) If the defendant is found mentally competent during a postrelease community supervision or parole revocation hearing, the revocation proceedings shall resume. The formal hearing on the revocation shall occur within a reasonable time after resumption of the proceedings, but a defendant who is found to be mentally competent may shall not be detained in custody for over 180 days from the date of arrest.

(b) If the defendant is found mentally incompetent, the court may, using the least restrictive option to meet the mental health needs of the defendant, do any of the following: shall have discretion to do either of the following:

(1) Dismiss the pending revocation matter and may, using the least restrictive option to meet the mental health needs of the defendant, also do any of the following:

(1)

(A) Modify the terms and conditions of supervision to include appropriate mental health treatment.

(2)

(B) Refer the matter to any local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant.

(3)

(C) Refer the matter to the public guardian of the county of commitment to initiate conservatorship proceedings pursuant to Sections 5352 and 5352.5 of the Welfare and Institutions Code. The public guardian shall investigate all available alternatives to conservatorship pursuant to Section 5354 of the Welfare and Institutions Code. The court shall order the matter to the public guardian pursuant to this subparagraph only if there are no other reasonable alternatives to the establishment of a conservatorship to meet the mental health needs of the defendant.

(2) (A) If the court determines, after considering the opinions in the report prepared pursuant to subdivision (a) of Section 1369 and any other relevant information, 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 arrest, or before the defendant’s date of discharge, whichever is earlier, the court shall order the county sheriff to deliver the defendant to one of the following facilities for treatment pursuant to Section 1370 for the purpose of restoring the defendant to mental competency:

(i) A State Department of State Hospitals facility, as defined in Section 4100 of the Welfare and Institutions Code, for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals.

(ii) A public or private treatment facility, including a jail restoration of competency program or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code, if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director.

(B) If the defendant is restored to competency within 180 days of arrest or before the defendant’s date of discharge, whichever is earlier, the defendant shall be returned to court and the revocation proceedings shall resume.

(C) If the defendant is not restored to competency within 180 days of arrest or before the defendant’s date of discharge, whichever is earlier, the court shall dismiss the pending revocation matter and return the defendant to supervision. The court may proceed with any of the options described in paragraph (1).

(4)Order the defendant to be delivered by the county sheriff to a public or private treatment facility, including a jail restoration of competency program or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code, if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director, to promote the defendant’s restoration to mental competence as soon as possible, for up to an additional 180 days from the day the defendant is found by the court to be mentally incompetent, or up to the parolee’s date of discharge, whichever comes first, for the purpose of restoring the defendant’s competency.

(A)The court shall hear and determine whether the defendant lacks the mental capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (a) of Section 1369, as applicable to the issue of whether the defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed, as follows:

(i)The court shall hear and determine whether either of the following is true:

(I)The defendant lacks the capacity to make decisions regarding the administration of 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 defendant will result. 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. The fact that a defendant has a diagnosis of a mental disorder does not alone establish the probability of serious harm to the physical or mental health of the defendant.

(II)The defendant is a danger to others because 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 to inflict substantial physical harm on another that resulted in his or her being taken into custody, and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. 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.

(ii)If the court finds either of the conditions described in clause (i) to be true, the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendant’s treating psychiatrist at any facility housing the defendant for purposes of this chapter.

(iii)In all cases, the treating facility or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency, as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code.

(iv)If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with the advice of his or her counsel, consents, the court order of commitment shall include confirmation that antipsychotic medication may be given to the defendant as prescribed by a treating psychiatrist with the defendant’s consent. The commitment order shall also indicate that if the defendant withdraws consent for antipsychotic medication after the treating psychiatrist complies with the requirements of subclause (II) of clause (i), the defendant shall be returned to court for a hearing in accordance with this subparagraph regarding whether antipsychotic medication shall be administered involuntarily.

(B)The court shall set a review hearing prior to the expiration of the additional 180 day period to review the progress in restoring the defendant’s competency. At the review hearing, if the defendant is found mentally competent, the defendant shall be returned to parole supervision, If the defendant’s mental competency has not been restored, the court shall dismiss the pending revocation matter and return the defendant to supervision. If the revocation matter is dismissed, the court may, using the least restrictive option to meet the mental health needs of the defendant, proceed with any of the options described in paragraphs (1) to (3), inclusive.

(C)The court shall transmit a copy of the order to the Department of Corrections and Rehabilitation, the district attorney’s office, and the defendant’s counsel.

(c) (1) Notwithstanding any other law, if a person subject to parole pursuant to Section 3000.1 or paragraph (4) of subdivision (b) of Section 3000 is found mentally incompetent, the court shall order the parolee to undergo treatment pursuant to Section 1370 for restoring the person to competency, except that if the parolee is not restored to competency within the maximum period of confinement and the court dismisses the revocation, the court shall return the parolee to parole supervision.

(2) If the parolee is returned to parole supervision, the court may, using the least restrictive option to meet the mental health needs of the parolee, do any of the following:

(A) Modify the terms and conditions of parole to include appropriate mental health treatment.

(B) Refer the matter to any local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the parolee.

(C) Refer the matter to the public guardian of the county of commitment to initiate conservatorship proceedings pursuant to Sections 5352 and 5352.5 of the Welfare and Institutions Code. The public guardian shall investigate all available alternatives to conservatorship pursuant to Section 5354 of the Welfare and Institutions Code. The court shall order the matter to the public guardian pursuant to this subparagraph only if there are no other reasonable alternatives to the establishment of a conservatorship to meet the mental health needs of the parolee.

(d) If a conservatorship is established for a defendant or parolee pursuant to subdivision (b) or (c), the county or the Department of Corrections and Rehabilitation shall not compassionately release the defendant or parolee or otherwise cause the termination of his or her supervision or parole based on the establishment of that conservatorship.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.