BILL NUMBER: AB 2190 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Maienschein
FEBRUARY 20, 2014
An act to amend Sections 1601, 1602, and 1603 of the Penal Code,
and to amend Section 5354 of the Welfare and Institutions Code,
relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
AB 2190, as introduced, Maienschein. Criminal defendants: gravely
disabled persons.
(1) Existing law prohibits outpatient status for a person who is
charged with and found incompetent on a charge of, convicted of, or
found not guilty by reason of insanity of certain crimes, including,
but not limited to, murder, mayhem, aggravated mayhem, or any felony
involving death, great bodily injury, or an act which poses a serious
threat of bodily harm to another person, until the person has
actually been confined in a state hospital or other treatment
facility for at least 180 days.
Existing law permits outpatient status, without first being
confined in a state hospital or other treatment facility, for a
person charged with, and found incompetent on a charge of, or
convicted of, any misdemeanor or any felony other than those
described above, or found not guilty of any misdemeanor by reason of
insanity, if specified conditions are met.
This bill would exempt from this 180-day prohibition cases where
the court finds a suitable placement, including, but not limited to,
an outpatient placement program, that would provide the person with
more appropriate mental health treatment and the court finds that the
placement would not pose a danger to the health or safety of others.
(2) Existing law establishes other conditions under which these
persons are eligible for outpatient status, including, but not
limited to, that both the director of the treatment facility and the
community program director advise the court that the person no longer
poses a danger and would benefit from outpatient status.
This bill would remove these conditions and would, instead,
require that the court consider whether those advisements had been
made, and would make conforming changes.
(3) Existing law, the Lanterman-Pertis-Short Act, authorizes the
appointment of a conservatorship for a person who is gravely disabled
as a result of mental disorder or impairment by chronic alcoholism.
Existing law requires the officer providing the conservatorship
investigation to investigate all available alternatives to
conservatorship and to recommend conservatorship to the court only if
no suitable alternatives are available, and to render a written
report to the court. Existing law authorizes a court to order a
person alleged, as a result of mental disorder, to be a danger to
others, or to himself or herself, or to be gravely disabled, to be
given an evaluation of his or her condition.
Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would, when a court with jurisdiction over a person in a
criminal case orders an evaluation of the person's mental condition,
require the officer providing the conservatorship investigation to
serve a copy of the report on the defendant or the defendant's
counsel.
The bill would require the investigating officer, upon request of
the defendant or the defendant's counsel, to submit a copy of the
report to the court hearing the criminal case, the district attorney,
and the county probation department. The bill would require that the
conservatorship investigation report and the information contained
therein be kept confidential and not be further disclosed to anyone
without the prior written consent of the defendant. The bill would,
with certain exceptions, require that after disposition of the
criminal case, the court place all copies of the report in a sealed
file. By increasing the duties of local officials, this bill would
impose a state-mandated local program.
This bill would make legislative findings to the effect that any
limitation on the public's right of access to the report is
outweighed by the need to protect the privacy interests of the
proposed conservatee and to prevent the chilling effect that would
result from disclosure.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1601 of the Penal Code is amended to read:
1601. (a) In the case of any person charged with and found
incompetent on a charge of, convicted of, or found not guilty by
reason of insanity of murder, mayhem, aggravated mayhem, a violation
of Section 207, 209, or 209.5 in which the victim suffers
intentionally inflicted great bodily injury, robbery or carjacking
with a deadly or dangerous weapon or in which the victim suffers
great bodily injury, a violation of subdivision (a) or (b) of Section
451, a violation of paragraph (2), (3), or (6) of subdivision (a) of
Section 261, a violation of paragraph (1) or (4) of subdivision (a)
of Section 262, a violation of Section 459 in the first degree, a
violation of Section 220 in which the victim suffers great bodily
injury, a violation of Section 288, a violation of Section 18715,
18725, 18740, 18745, 18750, or 18755, or any felony involving death,
great bodily injury, or an act which poses a serious threat of bodily
harm to another person, outpatient status under this title shall not
be available until that person has actually been confined in a state
hospital or other treatment facility for 180 days or more after
having been committed under the provisions of law specified in
Section 1600 , unless the court finds a suitable placement,
including, but not limited to, an outpatient placement program, that
would provide the person with more appropriate mental health
treatment and the court finds that the placement would not pose a
danger to the health or safety of others, including, but not limited
to, the safety of the victim and the victim's family .
(b) In the case of any person charged with, and found incompetent
on a charge of, or convicted of, any misdemeanor or any felony other
than those described in subdivision (a), or found not guilty of any
misdemeanor by reason of insanity, outpatient status under this title
may be granted by the court prior to actual confinement in a state
hospital or other treatment facility under the provisions of law
specified in Section 1600.
SEC. 2. Section 1602 of the Penal Code is amended to read:
1602. (a) Any Before any person
subject to the provisions of subdivision (b) of Section 1601 may be
placed on outpatient status, if all of the following
conditions are satisfied: status, the court shall
consider all of the following criteria:
(1) In the case of a person who is an inpatient, whether
the director of the state hospital or other treatment facility
to which the person has been committed advises the court that the
defendant will not be a danger to the health and safety of others
while on outpatient status, and will benefit from such outpatient
status.
(2) In all cases, whether the community program
director or a designee advises the court that the defendant will not
be a danger to the health and safety of others while on outpatient
status, will benefit from such status, and identifies an appropriate
program of supervision and treatment.
(3) After
(b) Prior to determining whether to
place the person on outpatient status, the court shall provide
actual notice to the prosecutor and defense counsel, and to the
victim, and after shall hold a
hearing in court, at which the court
may specifically approves the recommendation and
plan for order outpatient status for the
person .
(b)
(c) The community program director or a designee shall
prepare and submit the evaluation and the treatment plan specified in
paragraph (2) of subdivision (a) to the court within 15 calendar
days after notification by the court to do so, except that in the
case of a person who is an inpatient, the evaluation and treatment
plan shall be submitted within 30 calendar days after notification by
the court to do so.
(c)
(d) Any evaluations and recommendations pursuant to
paragraphs (1) and (2) of subdivision (a) shall include review and
consideration of complete, available information regarding the
circumstances of the criminal offense and the person's prior criminal
history.
SEC. 3. Section 1603 of the Penal Code is amended to read:
1603. (a) Any Before any person
subject to subdivision (a) of Section 1601 may be placed on
outpatient status if all of the following conditions are
satisfied: the court shall consider all of the
following criteria:
(1) The Whether the
director of the state hospital or other treatment facility to which
the person has been committed advises the committing court and the
prosecutor that the defendant would no longer be a danger to the
health and safety of others, including himself or herself, while
under supervision and treatment in the community, and will benefit
from that status.
(2) The Whether the community
program director advises the court that the defendant will benefit
from that status, and identifies an appropriate program of
supervision and treatment.
(3) The
(b) (1) Prior to
release of a person under subdivision (a), the prosecutor shall
provide notice of the hearing date and pending release to the victim
or next of kin of the victim of the offense for which the person was
committed where a request for the notice has been filed with the
court, and after a hearing in court, the court shall
specifically approves approve the
recommendation and plan for outpatient status pursuant to Section
1604. The burden shall be on the victim or next of kin to the victim
to keep the court apprised of the party's current mailing address.
In
(2) In any case in which the
victim or next of kin to the victim has filed a request for notice
with the director of the state hospital or other treatment facility,
he or she shall be notified by the director at the inception of any
program in which the committed person would be allowed any type of
day release unattended by the staff of the facility.
(b)
(c) The community program director shall prepare and
submit the evaluation and the treatment plan specified in paragraph
(2) of subdivision (a) to the court within 30 calendar days after
notification by the court to do so.
(c)
(d) Any evaluations and recommendations pursuant to
paragraphs (1) and (2) of subdivision (a) shall include review and
consideration of complete, available information regarding the
circumstances of the criminal offense and the person's prior criminal
history.
SEC. 4. Section 5354 of the Welfare and Institutions Code is
amended to read:
5354. (a) The officer providing
conservatorship investigation shall investigate all available
alternatives to conservatorship and shall recommend conservatorship
to the court only if no suitable alternatives are available. This
officer shall render to the court a written report of investigation
prior to the hearing. The report to the court shall be comprehensive
and shall contain all relevant aspects of the person's medical,
psychological, financial, family, vocational and social condition,
and information obtained from the person's family members, close
friends, social worker or principal therapist. The report shall also
contain all available information concerning the person's real and
personal property. The facilities providing intensive treatment or
comprehensive evaluation shall disclose any records or information
which may facilitate the investigation. If the officer providing
conservatorship investigation recommends against conservatorship, he
or she shall set forth all alternatives available. A copy of the
report shall be transmitted to the individual who originally
recommended conservatorship, to the person or agency, if any,
recommended to serve as conservator, and to the person recommended
for conservatorship. The court may receive the report in evidence and
may read and consider the contents thereof in rendering its
judgment.
(b) Notwithstanding Section 5328, when a court with jurisdiction
over a person in a criminal case orders an evaluation of the person's
mental condition pursuant to Section 5200, the officer providing the
conservatorship investigation shall serve a copy of the report
required under subdivision (a) upon the defendant or the defendant's
counsel. Upon request of the defendant or the defendant's counsel,
the officer providing the conservatorship investigation shall also
submit a copy of the report to the court hearing the criminal case,
the district attorney, and the county probation department. The
conservatorship investigation report and the information contained in
that report, shall be kept confidential and shall not be further
disclosed to anyone without the prior written consent of the
defendant. After disposition of the criminal case, the court shall
place all copies of the report in a sealed file, except as follows:
(1) The defendant and the defendant's counsel may retain their
copy.
(2) If the defendant is placed on probation status, the county
probation department may retain a copy of the report for the purpose
of supervision of the defendant until the probation is terminated, at
which time the probation department shall return its copy of the
report to the court for placement into the sealed file.
SEC. 5. Pursuant to paragraph (2) of subdivision (b) of Section 3
of Article I of the California Constitution, the Legislature finds
and declares all of the following:
(a) Any limitations to public access to conservator investigation
reports pursuant to subdivision (b) of Section 5354 of the Welfare
and Institutions Code as proposed by this act are necessary to
protect the privacy rights of the proposed conservatee pursuant to
Section 1 of Article I of the California Constitution.
(b) The interests in protecting the privacy rights of the proposed
conservatee in this situation strongly outweigh the public interest
in having access to personally identifiable information about the
person and his or her need for and access to mental health services.
Moreover, protection of the person's privacy right is necessary to
prevent the chilling effect on access to needed mental health
services that would occur if the information were to be made public.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.