Bill Text: CA SB1400 | 2023-2024 | Regular Session | Amended
Bill Title: Criminal procedure: competence to stand trial.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced) 2024-04-23 - From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 0.) (April 23). Re-referred to Com. on APPR. [SB1400 Detail]
Download: California-2023-SB1400-Amended.html
|
Amended
IN
Senate
April 11, 2024 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Senate Bill
No. 1400
| Introduced by Senator Stern (Coauthors: Senators Archuleta, Eggman, and Hurtado) |
February 16, 2024 |
An act to amend Section 1370.01 Sections 1001.36 and 1370.01 of the Penal Code, relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 1400, as amended, Stern.
Criminal procedure: competence to stand trial.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated and if the defendant is found incompetent to stand trial, the proceedings are suspended while the defendant receives treatment, with the goal of restoring the defendant to competency.
Existing law, in the case of a misdemeanor charge in which the defendant is found incompetent, requires the court to either dismiss the case or hold a hearing to determine if the defendant is eligible for diversion. Under existing law, if the defendant not eligible for diversion, the court may hold another hearing to decide if the defendant should be referred for outpatient treatment, conservatorship, or the CARE program, or if the defendant’s treatment plan
should be modified. Existing law also requires the court, if the defendant is already on a grant of diversion for a misdemeanor case, to dismiss the current case and return the defendant to supervision.
This bill would remove the option for the court to dismiss the case and would instead require the court to hold a hearing to determine if the defendant is eligible for diversion. If the defendant is not eligible for diversion, the bill would require the court to hold a hearing to determine whether the defendant will be referred to outpatient treatment, conservatorship, or the CARE program, or if the defendant’s treatment plan will be modified.
This bill would also remove the requirement that the court dismiss the case if the defendant is already on a grant of diversion for a misdemeanor case.
Existing
law prohibits a court from suspending proceedings of a prosecution on a charge of driving under the influence of an alcoholic beverage for the purpose of allowing the defendant to participate in education, training, or treatment programs.
This bill would allow for a mentally incompetent defendant who is charged with misdemeanor driving under the influence to be placed in a mental health diversion program, as specified.
If a mentally incompetent defendant is charged with a felony and a misdemeanor and is committed to mental health treatment, as specified, the bill would require the misdemeanor offense to be dismissed.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1001.36 of the Penal Code, as added by Section 1.2 of Chapter 687 of the Statutes of 2023, is amended to read:1001.36.
(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).(b) A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:
(1) The defendant has been diagnosed with a mental disorder as
identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.
(2) The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a
significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
(c) For any defendant who satisfies the eligibility requirements in subdivision (b), the court must consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met:
(1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.
(2) The defendant consents to diversion and waives the defendant’s right to a speedy trial, unless or a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 or subparagraph (A) of paragraph (1) of subdivision (b) of Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot
consent to diversion or give a knowing and intelligent waiver of the defendant’s right to a speedy trial.
(3) The defendant agrees to comply with treatment as a condition of diversion, unless or the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iv) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 1370 or subparagraph (A) of paragraph (1) of subdivision (b) of Section 1370.01 and, as a result of the defendant’s mental incompetence, cannot agree to comply with treatment.
(4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(d) A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1) Murder or voluntary manslaughter.
(2) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3) Rape.
(4) Lewd or lascivious act on a child under 14 years of age.
(5) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(6) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(7) Continuous sexual abuse of a child, in violation of Section 288.5.
(8) A violation of subdivision (b) or (c) of Section 11418.
(e) At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and
the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.
(f) As used in this chapter, the following terms have the following meanings:
(1) “Pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
(A) (i) The court is satisfied that the recommended inpatient or outpatient program of mental health
treatment will meet the specialized mental health treatment needs of the defendant.
(ii) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
(iii) If the court refers the defendant to a county
mental health agency pursuant to this section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.
(B) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.
(C) The period during which criminal proceedings against the defendant may be diverted is limited as follows:
(i) If the defendant is
charged with a felony, the period shall be no longer than two years.
(ii) If the defendant is charged with a misdemeanor, the period shall be no longer than one year.
(D) Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendant’s inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(2) “Qualified mental health expert” includes, but is not limited to, a psychiatrist, psychologist, a person described in Section 5751.2 of the Welfare and Institutions Code, or a person
whose knowledge, skill, experience, training, or education qualifies them as an expert.
(g) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:
(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
(2) The
defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3) The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A) The defendant is performing unsatisfactorily in the assigned program.
(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
(h) If the
defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in
subdivisions (j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).
(i) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(j) The defendant shall be advised that, regardless of the defendant’s completion of diversion, both of the following apply:
(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice
to any peace officer application request and that, notwithstanding subdivision (i), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(k) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, including, but not limited to, any finding that the defendant be prohibited from owning or controlling a firearm because they are a danger to themselves or others pursuant to subdivision (m), or any other
records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(l) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records,
including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.
(m) (1) The prosecution may request an order from the court that the defendant be prohibited from owning or possessing a firearm until they successfully complete diversion because they are a danger to themselves or others pursuant to subdivision (i) of Section 8103 of the Welfare and Institutions Code.
(2) The prosecution shall bear the burden of proving, by clear and convincing evidence, both of the following are true:
(A) The defendant poses a significant danger of causing personal injury to themselves or another by having in their custody or control, owning, purchasing, possessing, or receiving a
firearm.
(B) The prohibition is necessary to prevent personal injury to the defendant or any other person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant.
(3) (A) If the court finds that the prosecution has not met that burden, the court shall not order that the person is prohibited from having, owning, purchasing, possessing, or receiving a firearm.
(B) If the court finds that the prosecution has met the burden, the court shall order that the person is prohibited, and shall inform the person that they are prohibited, from owning or controlling a firearm until they successfully complete diversion because they are a danger to themselves or others.
(4) An order imposed pursuant to this subdivision shall be in effect until the defendant has successfully completed diversion or until their firearm rights are restored pursuant to paragraph (4) of subdivision (g) of Section 8103 of the Welfare and Institutions Code.
(n) This section shall become operative on July 1, 2024.
SECTION 1.SEC. 2.
Section 1370.01 of the Penal Code is amended to read:1370.01.
(a) If the defendant is found mentally competent, the criminal process shall resume, and the trial on the offense charged or hearing on the alleged violation shall proceed.(b) (1) (A) If the defendant is found mentally incompetent, the trial, judgment, or hearing on the alleged violation shall be suspended and the court
shall conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to Section 1001.36 for a period not to exceed one year from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter.
(B) Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a mental health diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code. However, this section does not limit the authority of the Department of Motor Vehicles to take
administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.
(2) The hearing shall be held no later than 30 days after the finding of incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing.
(3) If the defendant performs satisfactorily on diversion pursuant to this section, at the end of the period of diversion, the court shall dismiss the criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.
(4) If the court finds the defendant ineligible for diversion based on the circumstances set forth
in subdivision (b), (c), (d), or (g) of Section 1001.36, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine which one of the following actions the court will take:
(A) Order modification of the an existing mental health diversion treatment plan in accordance with a recommendation from the treatment provider.
(B) Refer the defendant to assisted outpatient treatment pursuant to Section 5346 of the Welfare and Institutions Code. A referral to assisted outpatient treatment may only occur in a county where services are available pursuant to Section 5348 of
the Welfare and Institutions Code, and the agency agrees to accept responsibility for treatment of the defendant. A hearing to determine eligibility for assisted outpatient treatment shall be held within 45 days after the date of the referral. finding of incompetency. If the hearing is delayed beyond 45 days, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into assisted outpatient treatment, the charges shall be dismissed pursuant to Section 1385.
(C) Refer the defendant to the county conservatorship investigator in the county of commitment for possible conservatorship
proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. A defendant shall only be referred to the conservatorship investigator if, based on the opinion of a qualified mental health expert, the defendant appears to be gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institution Code. Any hearings required in the conservatorship proceedings shall be held in the superior court in the county of commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the county mental health director or the director’s designee and shall notify the county mental health director or their designee of the outcome of the proceedings. Before establishing a conservatorship, the public guardian shall investigate all
available alternatives to conservatorship pursuant to Section 5354 of the Welfare and Institutions Code. If a petition is not filed within 60 30 days of the referral, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending conservatorship proceedings. If the outcome of the conservatorship proceedings results in the establishment of conservatorship, the charges shall be
dismissed pursuant to Section 1385. The charges shall be dismissed pursuant to Section 1385 upon the filing of either a temporary or permanent conservatorship petition.
(D) Refer the defendant to the CARE program pursuant to Section 5978 of the Welfare and Institutions Code. A hearing to determine eligibility for CARE shall be held within 14 court days after the date on which the petition for the referral is filed. If the hearing is delayed beyond 14 court days, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into CARE, the charges shall be dismissed pursuant to Section 1385.
(c) If the defendant is found mentally incompetent on a misdemeanor offense and felony offense and committed to treatment pursuant to Section 1370 or this section, the misdemeanor offense shall be dismissed.
(c)
(d) It is the intent of the Legislature that a defendant subject to the terms of this section receive mental health treatment in a treatment facility and not a jail. A term of four days will be deemed to have been served for every two days spent in actual custody against the maximum term of diversion. A defendant not in actual custody
shall otherwise receive day for day credit against the term of diversion from the date the defendant is accepted into diversion. “Actual custody” has the same meaning as in Section 4019.
(d)
(e) This section shall apply only as provided in subdivision (b) of Section 1367.
(f) Nothing in this section limits a court’s discretion pursuant to Section 1385.
