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 defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate.

This bill would, on or before July 1, 2017, require the State Department of State Hospitals, through the use of a workgroup representing specified groups, to adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court. The bill would provide that if there is no reasonably available expert who meets the guidelines, the court shall have discretion to appoint an expert who does not meet the guidelines.

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 defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate.

This bill would, on or before July 1, 2017, require the State Department of State Hospitals, through the use of a workgroup representing specified groups, to adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court. The bill would provide that if there is no reasonably available expert who meets the guidelines, the court shall have discretion to appoint an expert who does not meet the guidelines.

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 defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate.

This bill would, on or before July 1, 2017, require the State Department of State Hospitals, through the use of a workgroup representing specified groups, to adopt guidelines establishing minimum for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court. The bill would provide that if there is no reasonably available expert who meets the guidelines, the court shall have discretion to appoint an expert who does not meet the guidelines.

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 defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate.

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 defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate.

This bill would require psychiatrists, licensed psychologists, and any other expert the court deems appropriate to have forensic experience.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1962

Author:(Dodd)

As Amended Ver:June 6, 2016

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Requires the establishment of guidelines on education and training for psychologists and psychiatrists to be appointed by the court to determine a defendant's mental competence.

The Senate amendments:

1. Specify that the court shall appoint experts who meet the guidelines established in accordance with this subdivision or experts with equivalent experience and skills.
2. Give the court the discretion to appoint an expert who does not meet the guidelines, if there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills.
3. Make technical, non-substantive changes.

EXISTING LAW:

1. Provides person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent.
2. States that a defendant is mentally incompetent for purposes of this chapter 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.
3. Specifies that if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.
4. Provides that if counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing.
5. Requires a trial by court or jury of the question of mental competence to proceed in the following order:
   1. The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant;
   2. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof;
   3. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution;
   4. The examining psychiatrists or licensed psychologists shall 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 as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence;
   5. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant;
   6. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others;
   7. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail;
   8. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital;
   9. The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment;
   10. The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence;
   11. If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so;
   12. The prosecution shall present its case regarding the issue of the defendant's present mental competence;
   13. Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention;
   14. When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury;
   15. In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and
   16. Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole.

AS PASSED BY THE ASSEMBLY, this bill would have:

1. Required the Department of State Hospitals to adopt guidelines establishing minimum education and training standards for a psychiatrist of licensed psychologist to be considered for appointment by the court to conduct examinations of defendants regarding mental incompetence.
2. Required the Department of State Hospitals to consult with the Judicial Council of California and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accredit bodies for psychologists and psychiatrists, and other interested stakeholders in the development of guidelines.

FISCAL EFFECT:

According to the Senate Appropriations Committee:

1. Workgroup/guidelines: Minor and absorbable one-time costs (General Fund) to the Department of State Hospitals (DSH) to convene the workgroup and develop the education and training guidelines. Minor, absorbable costs to workgroup members including the Judicial Council.
2. DSH caseload: Potential future decrease in DSH commitment costs (General Fund) to the extent the provisions of this measure result in fewer patients being unnecessarily referred to the DSH for treatment. While the caseload impact cannot be determined with certainty, for every DSH patient found competent to stand trial in lieu of Incompetent to Stand Trial (IST), DSH could avoid treatment costs of about $200,000 (General Fund) per patient per year. Staff notes reducing the number of IST referrals would not necessarily reduce the DSH budget due to the existing waitlist for DSH beds.
3. State prisons/County jails: Potential future increase in state (General Fund) and local (Local Funds) incarceration costs for commitments to state prison and county jail to the extent persons that otherwise would have been found IST are instead found competent and subject to a resumed trial resulting in a felony or misdemeanor conviction.
4. Court-appointed evaluator costs: Potential increase in costs (General Fund*) to the courts for more experienced IST evaluators resulting from the imposition of the education and training standards as yet to be established by the DSH. Based on an estimated 15,000 mental competency filings statewide each year, even a small percentage of filings that include IST evaluations could increase overall costs in the hundreds of thousands of dollars annually.
5. Court workload: Potential future cost savings (General Fund*) to the extent additional court hearings are not required in cases when a non-licensed/authorized psychiatrist or psychologist is challenged for court-appointment.

*Trial Court Trust Fund

COMMENTS: "It is crucial that we ensure that the psychiatrists and psychologists who determine mental competency of criminal defendants have the experience to be able to provide an accurate determination. Without adequate training, experience, and standards, these evaluators may incorrectly determine a malingerer is incompetent to stand trial and place them in our state hospital system. The Department of State Hospitals estimates that between 15-20% of the patients referred to them as incompetent to stand trial are patients who are faking mental illness to avoid being sentenced to prison (malingerers). This represents a significant unneeded cost to the state, and also a safety risk to employees and patients, as malingerers can prey on patients and staff once they arrive. Assaults occur on state hospital staff or other patients on a daily basis, sometimes resulting in serious injury, and ensuring evaluators are adequately trained will reduce erroneous commitments. Additionally, ensuring evaluators have the proper experience will ensure those who truly need treatment in our state hospitals are placed there to get the help they need and are not unnecessarily victimized."

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0004179

 THIRD READING  

Bill No: AB 1962

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 79-0, 4/21/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: AFL-CIO

Union of American Physicians and Dentists

DIGEST: This bill directs the Department of State Hospitals (DSH) to adopt guidelines for training and education standards for a psychiatrist or psychologist appointed to evaluate a defendant who may be incompetent to stand trial (IST); 2 ) to direct DSH to convene a workgroup of interested and knowledgeable entities, as specified, to develop the guidelines; and 3) to provide that the court shall appoint IST experts who meet the guidelines, or experts with equivalent experience and skills, as specified.

ANALYSIS:

Existing law:

1. Provides that a person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).)
   
2. States that a defendant is mentally incompetent for purposes of this chapter 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. (Pen. Code § 1367, subd. (a).)
   
3. Specifies that if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. (Pen. Code § 1368, subd. (a).)
   
4. Provides that if counsel informs the court that he or she believes the defendant is or may be mentally incompetent; the court shall order that the question of the defendant's mental competence is to be determined in a hearing. (Pen. Code § 1368, subd. (b).)
   
5. Requires a trial by court or jury of the question of mental competence to proceed in the following order:
   1. The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant; (Pen. Code § 1369, subd. (a).)
   2. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof; (Pen. Code § 1369, subd. (a).)
   3. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution; (Pen. Code § 1369, subd. (a).)
   4. The examining psychiatrists or licensed psychologists shall 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 as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence; (Pen. Code § 1369, subd. (a).)
   5. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant; (Pen. Code § 1369, subd. (a).)
   6. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others; (Pen. Code § 1369, subd. (a).)
   7. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail; (Pen. Code § 1369, subd. (a).)
   8. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital; (Pen. Code § 1369, subd. (a).)
   9. The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment; (Pen. Code § 1369, subd. (a).)
   10. The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence; (Pen. Code § 1369, subd. (b)(1).)
   11. If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so; (Pen. Code § 1369, subd. (b)(2).)
   12. The prosecution shall present its case regarding the issue of the defendant's present mental competence; (Pen. Code § 1369, subd. (c).)
   13. Each party may offer 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, subd. (d).)
   14. When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury; (Pen. Code § 1369, subd. (e).)
   15. In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and (Pen. Code § 1369, subd. (f).)
   16. Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen. Code § 1369, subd. (g).)
       
6. Specifies that a person cannot be tried, or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent.
   
7. States that an incompetent defendant charged with a violent felony (Pen. Code § 667.5, subd. (c)), may not be delivered to a state hospital or treatment entity that does not have a secured perimeter or a locked and controlled treatment facility. The court must determine that public safety will be protected. (Pen. Code § 1370, subd. (a)(1)(D).)

This bill:

1. Provides that DSH shall, on or before July 1, 2017, adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court to evaluate a defendant who is possibly IST.
2. Directs DSH to convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders to develop the guidelines for education and training standards for psychiatrist and psychologists in IST cases.
3. Provides that the court shall appoint IST experts who meet the established guidelines, or experts with equivalent experience and skills. If there is no reasonably available expert who meets the criteria or who has equivalent qualifications, the court may appoint an expert who does not meet the guidelines.

Background

According to the author:

Existing law prohibits a person from being tried or adjudged to punishment if that person is deemed mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated, which includes requiring the court to appoint a psychiatrist, licensed psychologist or other expert.

An individual who is incompetent to stand trial (IST) lacks the mental competency required to participate in legal proceedings. There is a monthly statewide IST waitlist that averages between 200 and 300 defendants who are waiting for an available bed in a state hospital so they can undergo evaluation treatment.

It is estimated that between 15 and 20% of patients that are IST are malingering. Malingerers are patients who fake mental illness – specifically, in this case, to avoid going to prison. Malingerers in state hospitals are threats to both hospital staff and patients.

Currently, there are no standards for court-appointed psychologists and psychiatrists in IST cases. It is important to aid the Department of State Hospitals, by ensuring correct diagnoses of patients. Having qualified experts diagnosing defendants will help reduce violence in state hospitals, while ensuring that those who require hospitalization receive needed help and treatment.

According to DSH, the state hospital patient population has shifted over the past 20 years, from a 20 percent forensic population in 1994 to the current 96 percent. Forensic patients are committed for a variety of reasons, including IST, NGI (Not Guilty by Reason of Insanity), mentally disordered offenders (MDO), and sexually violent predators. DSH housed and treated approximately 9,400 patients in 2014. According to the April 4, 2016 weekly census there were approximately 6,730 patients in DSH, excluding those on leave. Of the total, 1,200 were MDO patients and 1,381 were NGI patients.

Violence among the IST population is part of an ongoing problem with violence in DSH facilities. According to DSH, in 2013, there were a total of 3,344 patient-on-patient assaults and 2,586 patient-on-staff assaults at state hospitals. Of the total patient population, 62 percent are non-violent, 36 percent committed 10 or fewer violent acts, and 2 percent committed 10 or more violent acts. Of all the violent acts committed, 65 percent are committed by those with 10 or fewer violent acts, and 35 percent are committed by those with 10 or more violent acts. A small subset of the population, 116 people, commits the majority of aggressive acts.

An IST jail inmate often must wait a substantial period of time before being admitted to DSH for treatment. An untreated IST defendant could decompensate and become more difficult to return to competency. Such a defendant would also be more likely to need to be placed in a conservatorship if not timely and adequately treated.

Numerous court cases have considered treatment delays for IST. The Second District Court of Appeal in Freddy Mille v. Los Angeles County (2010)182 Cal.App. 4th 635, 649-650, ruled that a person determined to be IST must be transferred to a state hospital within a “reasonable amount of time” to allow DSH to report to the trial court on the likelihood of restoring the IST to competence. Penal Code Section 1370 (b)(1) requires the initial report to be made within 90 days. Disability Rights California has reported that this 90-day report timeline is routinely missed. The IST defendant in Mille was only transferred to DSH on the 84th day following the finding of his incompetence.

Litigation on delays in treatment for IST patients is ongoing. There appear to be federal court orders concerning the waitlist for IST defendants to be admitted to DSH. The ACLU has filed a lawsuit in Alameda County – Stiavetti v. Ahlin. On April 26, 2016, the court dismissed a motion by DSH to strike the complaint.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Workgroup/guidelines: Minor and absorbable one-time costs (General Fund) to the DSH to convene the workgroup and develop the education and training guidelines. Minor, absorbable costs to workgroup members including the Judicial Council.
• DSH caseload: Potential future decrease in DSH commitment costs (General Fund) to the extent the provisions of this bill result in fewer patients being unnecessarily referred to for treatment. While the caseload impact cannot be determined with certainty, for every DSH patient found competent to stand trial in lieu of IST, DSH could avoid treatment costs of about $200,000 (General Fund) per patient per year. Staff notes reducing the number of IST referrals would not necessarily reduce the DSH budget due to the existing waitlist for DSH beds.
• State prisons/County jails: Potential future increase in state (General Fund) and local (Local Funds) incarceration costs for commitments to state prison and county jail to the extent persons that otherwise would have been found IST are instead found competent and subject to a trial resulting in a felony or misdemeanor conviction.
• Court-appointed evaluator costs: Potential increase in costs (General Fund) to the courts for more experienced IST evaluators resulting from the imposition of the education and training standards as yet to be established by the DSH. Based on an estimated 15,000 mental competency filings statewide each year, even a small percentage of filings that include IST evaluations could increase overall costs in the hundreds of thousands of dollars annually.
• Court workload: Potential future cost savings (General Fund) to the extent additional court hearings are not required in cases when a non-licensed/authorized psychiatrist or psychologist is challenged for court-appointment.

SUPPORT: (Verified 8/11/16)

AFL-CIO (co-source)

Union of American Physicians and Dentists (co-source)

American Federation of State, County and Municipal Employees Local 2620

California Association of Psychiatric Technicians

California District Attorneys Association

California Psychiatric Association

Judicial Council of California

Peace Officers Research Association of California

OPPOSITION: (Verified 8/11/16)

None received

ASSEMBLY FLOOR: 79-0, 4/21/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Ridley-Thomas

Prepared by:

8/15/16 20:17:24

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1962 (Dodd) - Criminal proceedings: mental competence

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1962 would require the Department of State Hospitals (DSH), on or before July 1, 2017, to adopt guidelines for education and training standards for psychiatrists or licensed psychologists appointed by the court to evaluate defendants who may be incompetent to stand trial (IST). This bill would require the DSH to convene a workgroup to develop the guidelines and would additionally require the court to appoint experts who meet the adopted guidelines, as specified.

Fiscal Impact:

• Workgroup/guidelines: Minor and absorbable one-time costs (General Fund) to the DSH to convene the workgroup and develop the education and training guidelines. Minor, absorbable costs to workgroup members including the Judicial Council.
• DSH caseload: Potential future decrease in DSH commitment costs (General Fund) to the extent the provisions of this measure result in fewer patients being unnecessarily referred to the DSH for treatment. While the caseload impact cannot be determined with certainty, for every DSH patient found competent to stand trial in lieu of IST, DSH could avoid treatment costs of about $200,000 (General Fund) per patient per year. Staff notes reducing the number of IST referrals would not necessarily reduce the DSH budget due to the existing waitlist for DSH beds.
• State prisons/County jails: Potential future increase in state (General Fund) and local (Local Funds) incarceration costs for commitments to state prison and county jail to the extent persons that otherwise would have been found IST are instead found competent and subject to a resumed trial resulting in a felony or misdemeanor conviction.
• Court-appointed evaluator costs: Potential increase in costs (General Fund*) to the courts for more experienced IST evaluators resulting from the imposition of the education and training standards as yet to be established by the DSH. Based on an estimated 15,000 mental competency filings statewide each year, even a small percentage of filings that include IST evaluations could increase overall costs in the hundreds of thousands of dollars annually.
• Court workload: Potential future cost savings (General Fund*) to the extent additional court hearings are not required in cases when a non-licensed/authorized psychiatrist or psychologist is challenged for court-appointment.

*Trial Court Trust Fund

Background:

Existing law provides that a person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision (PRCS), or parole revoked while that person is mentally incompetent.

Existing law states that a defendant is mentally incompetent for purposes of this chapter 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. (Penal Code § 1367 (a).)

Existing law specifies that if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant, whether, in the opinion of the attorney, the defendant is mentally competent. If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing. (Penal Code § 1368 (a), (b).)

Existing law requires a trial by court or jury of the question of mental competence to proceed in a specified order. Existing law requires the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution. (Penal Code § 1369.)

Proposed Law:

This bill requires the Department of State Hospitals (DSH) to, on or before July 1, 2017, adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court to evaluate defendants who may be IST. Specifically, this bill:

• Requires the DSH to convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders.
• When making appointments pursuant to this section, requires the court to appoint experts who meet the guidelines established in accordance with this subdivision or experts with equivalent experience and skills. If there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills, the court shall have the discretion to appoint an expert who does not meet the guidelines.

Prior Legislation:

SB 1412 (Nielsen) Chapter 759/2014 applies procedures relative to persons who are IST to persons who may be mentally incompetent and face revocation of probation, mandatory supervision, PRCS, or parole.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1962 Hearing Date: June 21, 2016

Subject: Criminal Proceedings: Mental Competence

HISTORY

Source: Union of American Physicians and Dentists; American Federation of State, County and Municipal Employees (AFSCME), Local 2620

Prior Legislation: SB 1412 (Nielsen) – Ch. 759, Stats. 2014
AB 2212 (Fuentes) – Ch. 671Stats. 2010
AB 366 (Allen) – Ch. 654, Stats. 2011
SB 1794 (Perata) – Ch. 486, Stats. 2004

Support: California District Attorneys Association; American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); California Association of Psychiatric Technicians; California Psychiatric Association; Peace Officers Research Association of California; Judicial Council of California

Opposition: None known

Assembly Floor Vote: 79 - 0

PURPOSE

The purpose of this bill is 1) to direct the Department of State Hospitals (DSH) to adopt guidelines for training and education standards for a psychiatrist or psychologist appointed to evaluate a defendant who may be incompetent to stand trial (IST); 2 ) to direct DSH to convene a workgroup of interested and knowledgeable entities, as specified, to develop the guidelines; 3) to provide that the court shall appoint IST experts who meet the guidelines, or experts with equivalent experience and skills, as specified.

Existing law provides that a person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).)

Existing law states that a defendant is mentally incompetent for purposes of this chapter 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. (Pen. Code, § 1367, subd. (a).)

Existing law specifies that if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. (Pen. Code, § 1368, subd. (a).)

Existing law provides that if counsel informs the court that he or she believes the defendant is or may be mentally incompetent; the court shall order that the question of the defendant's mental competence is to be determined in a hearing. (Pen. Code, § 1368, subd. (b).)

Existing law requires a trial by court or jury of the question of mental competence to proceed in the following order:

• 1. The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant; (Pen. Code § 1369, subd. (a).)
  2. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof; (Pen. Code § 1369, subd. (a).)
  3. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution; (Pen. Code § 1369, subd. (a).)
  4. The examining psychiatrists or licensed psychologists shall 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 as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence; (Pen. Code § 1369, subd. (a).)
  5. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant; (Pen. Code § 1369, subd. (a).)
  6. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others; (Pen. Code § 1369, subd. (a).)
  7. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail; (Pen. Code § 1369, subd. (a).)
  8. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital; (Pen. Code § 1369, subd. (a).)
  9. The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment; (Pen. Code § 1369, subd. (a).)
  10. The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence; (Pen. Code § 1369, subd. (b)(1).)
  11. If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so; (Pen. Code § 1369, subd. (b)(2).)
  12. The prosecution shall present its case regarding the issue of the defendant's present mental competence; (Pen. Code § 1369, subd. (c).)
  13. Each party may offer 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, subd. (d).)
  14. When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury; (Pen. Code § 1369, subd. (e).)
  15. In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and (Pen. Code § 1369, subd. (f).)
  16. Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen. Code § 1369, subd. (g).)
      

Existing law specifies that a person cannot be tried, or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent.

Existing law states that an incompetent defendant charged with a violent felony (Pen. Code § 667.5, subd. (c), may not be delivered to a state hospital or treatment entity that does not have a secured perimeter or a locked and controlled treatment facility. The court must determine that public safety will be protected. (Pen. Code § 1370, subd. (a)(1)(D).)

This bill provides that the State Department of State Hospitals (DSH) shall, on or before July 1, 2017, adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court to evaluate a defendant who is possibly IST

This bill directs DSH to convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders to develop the guidelines for education and training standards for psychiatrist and psychologists in IST cases.

This bill provides that the court shall appoint IST experts who meet the established guidelines, or experts with equivalent experience and skills. If there is no reasonably available expert who meets the criteria or who has equivalent qualifications, the court may appoint an expert who does not meet the guidelines.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

Need for This Bill

According to the author:

Existing law prohibits a person from being tried or adjudged to punishment if that person is deemed mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate.

By definition, an individual who is incompetent to stand trial (IST) lacks the mental competency required to participate in legal proceedings. In California, there is a monthly statewide waitlist that averages between 200 and 300 individuals alleged to have committed felonies who the courts have deemed mentally incompetent to stand trial. These individuals are waiting for a bed to become available in a state hospital so they can undergo evaluation and receive treatment to restore them to competency.

It is estimated that between 15 and 20 percent of patients that are deemed mentally incompetent and unable to stand trial, and thereby sent to a state hospital, are malingering. Malingerers are patients who fake mental illness – specifically, in this case, to avoid going to prison. Malingerers in state hospitals are threats to both hospital staff and patients.

Currently, there are no standards that court-appointed psychologists and psychiatrists must meet specific to evaluating mental competence and identifying malingering. It is important to aid the Department of State Hospitals, by ensuring correct diagnoses of patients. Having qualified experts diagnosing defendants will help reduce violence in state hospitals, while ensuring that those who require hospitalization receive needed help and treatment.

Violence in DSH Facilities – Asserted Links to Substandard Evaluations of Potential Forensic Patients by Appointed Experts in IST Cases

The sponsors have stated that a significant percentage of the IST defendants in DSH who are faking their symptoms and that these defendants are particularly likely to be violent. The sponsors have concluded that this problem is caused or exacerbated by substandard evaluations of potential ISTs by appointed experts at the trial court level. The sponsors argue that raising the standards for expert evaluators will reduce violence in DSH facilities by limiting the number of malingering IST patients committed for treatment.

Violence among the IST population is part of an ongoing problem with violence in DSH facilities. According to DSH, in 2013, there were a total of 3,344 patient-on-patient assaults and 2,586 patient-on-staff assaults at state hospitals. Of the total patient population, 62 percent are non-violent, 36 percent committed 10 or fewer violent acts, and 2 percent committed 10 or more violent acts. Of all the violent acts committed, 65 percent are committed by those with 10 or fewer violent acts, and 35 percent are committed by those with 10 or more violent acts. A small subset of the population, 116 people, commits the majority of aggressive acts.

The Division of Occupational Safety and Health, known as Cal/OSHA, within the California Department of Industrial Relations, has had significant and ongoing involvement with DSH as a result of insufficient protections for staff. According to a Los Angeles Times article from March 2, 2012, Cal/OSHA has issued nearly $100,000 in fines against Patton and Atascadero, alleging that they have failed to protect staff and have deficient alarm systems. These citations are similar to citations levied in 2011 against Napa and Metropolitan. Cal/OSHA found an average of 20 patient-caused staff injuries per month at Patton from 2006 through 2011 and eight per month at Atascadero from 2007 through 2011, including severe head trauma, fractures, contusions, lacerations, and bites. DSH states they have been working closely with Cal/OSHA to resolve the issues and take all necessary corrective measures to protect staff at all of the state hospital facilities.

Wait List for IST Patients to be Treated by DSH – Consequences and Litigation

An IST jail inmate often must wait a substantial period of time before being admitted to DSH for treatment. An untreated IST defendant could decompensate and become more difficult to return to competency. Such a defendant would also be more likely to need to be placed in a conservatorship if not timely and adequately treated.

Numerous court cases have considered treatment delays for IST. The Second District Court of Appeal in Freddy Mille v. Los Angeles County (2010)182 Cal.App. 4th 635, 649-650, ruled that a person determined to be IST must be transferred to a state hospital within a “reasonable amount of time” to allow DSH to report to the trial court on the likelihood of restoring the IST to competence. Penal Code Section 1370 (b)(1) requires the initial report to be made within 90 days. Disability Rights California has reported that this 90-day report timeline is routinely missed. The IST defendant in Mille was only transferred to DSH on the 84^th day following the finding of his incompetence.

Litigation on delays in treatment for IST is ongoing. In several counties, attorneys have asked the court for orders to show cause and some have filed class action lawsuits. There appear to be federal court orders concerning the waitlist for IST defendants to be admitted to DSH. The ACLU has filed a lawsuit in Alameda County – Stiavetti v. Ahlin. On April 26, 2016, the court dismissed a motion by DSH to strike the complaint. The court also overruled a demurrer, which is essentially an argument that a complaint or lawsuit does not state a valid legal claim.

Background on Change in DSH Population to Nearly Only Forensic Patients – Those Committed Through or From the Criminal Justice System

According to DSH, the state hospital patient population has shifted over the past 20 years, from a 20 percent forensic population in 1994 to the current 96 percent. Forensic patients are committed for a variety of reasons, including IST, NGI, mentally disordered offenders (MDO), and SVP. DSH housed and treated approximately 9,400 patients in 2014. According to the April 4, 2016 weekly census there were approximately 6,730 patients in DSH, excluding those on leave. Of the total, 1,200 were MDO patients and 1,381 were NGI patients^[1]

The 2104 DSH Violence Report^[2], published in October of 2105, included the following summary:

During 2014, the Department of State Hospital’s (DSH) five freestanding hospitals treated almost 9400 patients (depicted above in Figure 1). While most of these patients were not violent (shown in green above, approximately 77%), violent patients comprised 23% of those treated in 2014. Of the violent patients, a very small number had 10 or more violent acts during 2014 (designated as “repeatedly violent patients”). While numbering only 123 patients total during 2014, these repeatedly violent patients were responsible for 36.6% of all the assaults on patients as well as staff assaults during 2014.

Existing law includes procedures and substantive rules for involuntary commitment to DSH of a person from the criminal justice system of a defendant who has a mental disorder that renders him or her incompetent to stand trial or too dangerous to release without treatment. The major categories of forensic patients are described below:

• Incompetent to Stand Trial: A criminal defendant who, because of a mental disorder, can neither understand the court process nor assist his attorney in conducting his defense is incompetent to stand trial or face punishment. An IST defendant is returned to court upon restoration of competency. (Pen Code § 1367 et seq.)
• Not Guilty by Reason of Insanity (NGI): One is NGI if he or she has a mental disorder rendering him or her incapable of knowing or understanding the nature and quality of the charged act, or he or she could not distinguish right from wrong at the time of the offense. (Pen. Code §§ 25 and 1026 et seq.)
  • An NGI defendant is committed to a state hospital for treatment. He or she can be held as long as the sentence for crime for which the not guilty by reason of insanity verdict was rendered.
  • An NGI defendant can petition for release on the grounds that his or her sanity has been restored. The NGI defendant has the burden of proof in a hearing in the superior court in which the defendant was tried. (Pen. Code §§ 1026, subd. (b), 1026.2 )
  • An NGI patient can be confined for as long as the maximum sentence for the underlying offense. At the expiration of the normal maximum confinement time, the commitment can be extended if the person’s mental disorder makes him or her a danger of substantial harm to others. (Pen. Code § 1026.5, subd. (b).)
• Mentally Disordered Offenders (MDO)

An MDO is an inmate who committed a specified violent crime that was caused or exacerbated by his or her mental disorder and who cannot be safely released into society. An MDO is involuntary committed for treatment during parole. The commitment can be extended without limitation in one-year increments. (Pen. Code § 2960 et seq.)

• Sexually Violent Predators

An SVP is a person who has committed a specified sex crime and has a mental disorder that renders him likely to violent sex crimes if released. At the time an SVP would otherwise be released on parole, he is indeterminately committed for treatment in a state hospital. Annual evaluations are performed to assess the person’s status as an SVP.

-- END –

1. There are also 1,444 IST patients and 896 SVP patients, apparently including those pending trial, in DSH as of April 4, 2016 ↑

2. http://www.dsh.ca.gov/Publications/docs/Docs/Violence_Report_2015.pdf ↑

Date of Hearing: April 13, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1962

Author:(Dodd) – As Amended Ver:March 30, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the Department of State Hospitals (DSH) to consult with the Judicial Council of California and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders in the development of guidelines regarding minimum education and training standards for psychiatrists and psychologists to be considered for appointment by the court to conduct evaluations of defendants’ mental competence.

FISCAL EFFECT:

No cost to DHS or the courts.

COMMENTS:

Background/Purpose. Current law provides that a person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. Current law also provides that if counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing.

Current law allows courts to appoint a “psychiatrist, licensed psychologist, or other expert the court may deem appropriate” to examine a defendant regarding his mental competence. However, current law does not provide further guidance concerning the education and training required before a psychiatrist or licensed psychologist can be appointed to conduct an evaluation of a defendant’s mental competence. However, there are education and training requirements required to become a psychiatrist or a licensed psychologist. Any psychiatrist appointed by the court has graduated medical school, passed the medical boards, and completed the requisite training to be a psychiatrist. Likewise, a licensed psychologist has met the appropriate education and training requirements to become a licensed psychologist.

AB 1962 provides a process to establish educational and training requirements that might be particular to conducting mental competence evaluations that might not otherwise be addressed in the training and education for psychiatrists or psychologists.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: April 5, 2016

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON

, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Requires establishing guidelines regarding minimum education and training standards for psychiatrists and psychologists to be considered for appointment by the court to conduct evaluations of defendants’ mental competence. Specifically, this bill:

1. Requires the Department of State Hospitals to adopt guidelines establishing minimum education and training standards for a psychiatrist of licensed psychologist to be considered for appointment by the court to conduct examinations of defendants regarding mental incompetence.
   
2. Requires the Department of State Hospitals to consult with the Judicial Council of California and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accredit bodies for psychologists and psychiatrists, and other interested stakeholders in the development of guidelines.

EXISTING LAW:

1. Provides person cannot be tried to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).)
   
2. States that a defendant is mentally incompetent for purposes of this chapter 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. (Pen. Code, § 1367, subd. (a).)
   
3. Specifies that if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. (Pen. Code, § 1368, subd. (a).)
   
4. Provides that if counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing. (Pen. Code, § 1368, subd. (b).)
   
5. Requires a trial by court or jury of the question of mental competence to proceed in the following order:
   1. The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant; (Pen. Code § 1369, subd. (a).)
   2. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof; (Pen. Code § 1369, subd. (a).)
   3. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution; (Pen. Code § 1369, subd. (a).)
   4. The examining psychiatrists or licensed psychologists shall 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 as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence; (Pen. Code § 1369, subd. (a).)
   5. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant; (Pen. Code § 1369, subd. (a).)
   6. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others; (Pen. Code § 1369, subd. (a).)
   7. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail; (Pen. Code § 1369, subd. (a).)
   8. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital; (Pen. Code § 1369, subd. (a).)
   9. The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment; (Pen. Code § 1369, subd. (a).)
   10. The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence; (Pen. Code § 1369, subd. (b)(1).)
   11. If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so; (Pen. Code § 1369, subd. (b)(2).)
   12. The prosecution shall present its case regarding the issue of the defendant's present mental competence; (Pen. Code § 1369, subd. (c).)
   13. Each party may offer 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, subd. (d).)
   14. When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury; (Pen. Code § 1369, subd. (e).)
   15. In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous; and (Pen. Code § 1369, subd. (f).)
   16. Only a court trial is required to determine competency in any proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen. Code § 1369, subd. (g).)
       
6. Specifies that a person cannot be tried, or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent.
   
7. States that a defendant is mentally incompetent 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. (Pen. Code, § 1367, subd. (a).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "It is crucial that we ensure that the psychiatrists and psychologists who determine mental competency of criminal defendants have the experience to be able to provide an accurate determination. Without adequate training, experience, and standards, these evaluators may incorrectly determine a malingerer is incompetent to stand trial and place them in our state hospital system. The Department of State Hospitals estimates that between 15-20 percent of the patients referred to them as incompetent to stand trial are patients who are faking mental illness to avoid being sentenced to prison (malingerers). This represents a significant unneeded cost to the state, and also a safety risk to employees and patients, as malingerers can prey on patients and staff once they arrive. Assaults occur on state hospital staff or other patients on a daily basis, sometimes resulting in serious injury, and ensuring evaluators are adequately trained will reduce erroneous commitments. Additionally, ensuring evaluators have the proper experience will ensure those who truly need treatment in our state hospitals are placed there to get the help they need and are not unnecessarily victimized.”
   
2. Mental Incompetence: A defendant is mentally incompetent “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. (Pen. Code, § 1367.)
   
   Evidence of incompetence may come from several sources, including the defendant’s demeanor, irrational behavior, and prior mental examinations; however, to be entitled to a competency hearing, a defendant must exhibit more than “a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.” (People v. Rogers (2006) 39 Cal.4^th 826, 847.)
   
   When substantial evidence of incompetence exists, the trial court cannot proceed with the case against the defendant without first holding a competency hearing.
   
   Once the court declares a doubt about a defendant’s competence to stand trial, or whenever there is substantial evidence of incompetence, the trial court must appoint a psychiatrist or licensed psychologist to examine the defendant. If defense counsel opposes a finding of incompetence, the court must appoint two experts: one chosen by the defense, one by the prosecution. An examining psychiatrist or psychologist must evaluate the defendant’s alleged mental disorder and the defendant’s ability to understand the proceedings and assist counsel, as well as address whether anitpsychotic medication is medically appropriate. (Pen. Code, § 1369, subd. (a).)
   
   The court may appoint other kinds of experts, as appropriate, to assist with a determination of competency. For instance, some courts appoint attorneys with expertise in the area of incompetency to testify as experts after examining the defendant, especially when the defendant’s ability to cooperate with counsel is at issue or when there are especially complex legal issues that the defendant needs to understand.
   
3. Incompetence to Stand Trial is Determined in the Course of an Adversarial Process with Checks and Balances beyond the Evaluators:
   
   The existing process to determine Incompetent to Stand Trial (IST) involves mental health evaluations by experts who are psychiatrists or psychologists. But in addition to the evaluations by the experts, the process includes a judge, a district attorney, and a defense attorney. To the extent the parties have concerns or disagreements about the validity of the determinations reached by the evaluators, the parties can demand a trial to determine if the defendant meets the legal standard for Not Guilty be Insanity (NGI) or IST. The trial allows additional evidence to be presented, and existing evidence to be challenged, by the parties in order reach an accurate determination of NGI or IST, if there is not a consensus among the parties.
   
   The fact that the psychiatrists, psychologists, or other experts appointed by the court are providing opinions within an adversarial setting ensures that the opinions are being screened by the defense, the prosecution and the court. To the extent that those parties relying on the opinions of the experts, don’t have confidence in the quality of the evaluations, they can take appropriate action prevent the appointment of such experts in the future.
   
4. Current Standards for Training and Education of Experts Used to Evaluate Mental Incompetence: Current law allows courts to appoint a “psychiatrist, licensed psychologist, or other expert the court may deem appropriate” to examine a defendant regarding his mental competence. (Pen. Code, § 1369, subd. (a).)
   
   Current law does not provide further guidance concerning the education and training required before a psychiatrist or licensed psychologist can be appointed to conduct an evaluation of a defendant’s mental competence. However, there are education and training requirements required to become a psychiatrist or a licensed psychologist. Any psychiatrist appointed by the court has graduated medical school, passed the medical boards, and completed the requisite training to be a psychiatrist. Likewise, a licensed psychologist has met the appropriate education and training requirements to become a licensed psychologist.
   
   This bill provides a process to establish educational and training requirements that might be particular to conducting mental competence evaluations that might not otherwise be addressed in the training and education for psychiatrists or psychologists.
5. Argument in Support: According to AFSCME, Local 2620, “AB 1962 which requires psychiatrists and licensed psychologists to have forensic experience when examining the mental competence of a defendant. The evaluation of a defendant to determine whether they are fit to stand trial, is inherently forensic in nature. Naturally, having an expert with forensic experience is necessary in order to make an accurate evaluation. Thus, in mandating forensic experience, psychiatrists and psychologists will be able discern the difference between a defendant who is truly incompetent to stand trial, and a defendant abusing the California correctional system to receive a less restrictive punishment (malingerers), and in turn placing putting more lives in danger. These patients do not pose a threat to public safety and cease to benefit from treatment with the State Hospitals.”
   
6. Related Legislation:
   
   1. AB 1237 (Brown), would have required the Department of State Hospitals to establish, within the department, a pool of psychiatrists and psychologists with forensic skills, and would require the department to create evaluation panels from the pool of psychiatrists and psychologists. This bill would also have required the court to order an examination by an evaluation panel for a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. Never heard in Assembly Public Safety.
      
7. Prior Legislation:
   
   1. AB 2543 (Levine), Legislative Session of 2013-2014, would have required the State Department of State Hospitals to establish a pool of psychiatrists and psychologists with forensic skills who would evaluate a defendant who pleads not guilty by reason of insanity or who may be mentally incompetent. Held in Assembly Public Safety.

REGISTERED SUPPORT / OPPOSITION:

Support

Union of American Physicians and Dentists (Sponsor)
American Federation of State, County and Municipal Employees, Local 2620
California Association of Psychiatric Technicians
California Attorneys for Criminal Justice
Peace Officers Research Association of California

Opposition

None

Analysis Prepared by: