Bill Text: CA AB2657 | 2021-2022 | Regular Session | Chaptered
Bill Title: Incarcerated person’s competence.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2022-09-29 - Chaptered by Secretary of State - Chapter 795, Statutes of 2022. [AB2657 Detail]
Download: California-2021-AB2657-Chaptered.html
Assembly Bill
No. 2657
CHAPTER 795
An act to amend and renumber Section 3700.5 of, to repeal Sections 3700, 3704, and 3704.5 of, and to repeal and add Sections 3701, 3702, and 3703 of, the Penal Code, relating to the death penalty.
[
Approved by
Governor
September 29, 2022.
Filed with
Secretary of State
September 29, 2022.
]
LEGISLATIVE COUNSEL'S DIGEST
AB 2657, Stone.
Incarcerated person’s competence.
Existing law authorizes the warden of a state prison to whom an incarcerated person is delivered for execution to suspend the execution of a judgment of death in specified circumstances. Under existing law, if the court sets a date for execution, the warden is required to report that to the Secretary of the Department of Corrections and Rehabilitation, who is required to appoint 3 “alienists” (psychiatrists) from the Department of Corrections and Rehabilitation staff, at least 20 days prior to the date appointed for execution, to examine the defendant and investigate the defendant’s sanity.
This bill would require the secretary to select and appoint 3 psychiatrists or licensed psychologists to examine the incarcerated person and investigate and report whether the incarcerated person is competent to be executed. The bill would require that a
copy of the report be provided to the incarcerated person, the Attorney General, the district attorney of the county in which the incarcerated person was sentenced, and to the Governor.
Existing law requires the warden to notify the district attorney of the county in which the prison is situated if there is good reason to believe that an incarcerated person, under judgment of death, has become incompetent to be executed. Existing law requires the district attorney to immediately file a petition in the superior court of the county stating the conviction and judgment, the fact that the incarcerated person is believed to be incompetent to be executed, and inquiring into the incarcerated person’s competence. Existing law also requires the court to summon and impanel a jury of 12 persons to inquire into the incarcerated person’s sanity.
This bill would require the warden to notify the district attorney of the county in which
the incarcerated person was sentenced, the Attorney General, and the incarcerated person’s counsel, if there is good reason to believe that an incarcerated person has become incompetent to be executed. If the warden issues that notice, the bill would require the Attorney General to file a petition, identifying that there is reason to believe that the incarcerated person is incompetent to be executed, with the court if the incarcerated person’s counsel fails to file the petition or the incarcerated person does not have counsel. The bill would also remove the right to a jury trial on the subject of incompetence for execution.
Existing law requires the judge to hold a hearing if the superintendent of the medical facility certifies to the judge that the incarcerated person has recovered their sanity, and if at the hearing it is determined that the incarcerated person has in fact recovered their sanity, existing law requires the judge to certify that to the Governor,
who is required to then issue to the warden a warrant appointing a day for the execution of the judgment. Existing law requires the court to appoint counsel to represent the incarcerated person at the hearing if the defendant appears without counsel. Existing law also requires the district attorney to attend the hearing.
This bill would require the court to hold a hearing if there is reason to believe the incarcerated person is presently incompetent to be executed, as specified, or if there is reason to believe the incarcerated person is permanently incompetent to be executed, as specified. The bill would require the court to vacate the sentence or sentences of death if the court finds by a preponderance of the evidence that the incarcerated person is permanently incompetent to be executed, and would require the court to resentence the incarcerated person to life without the possibility of parole. The bill would not require the district attorney to attend the
hearing.
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.
The Legislature finds and declares all of the following:(a) The United States Supreme Court held that the Eighth Amendment of the United States Constitution categorically prohibits the execution of an individual who is mentally incompetent (see Ford v. Wainwright (1986) 477 U.S. 399). A person is mentally incompetent, and therefore ineligible to be executed, if they do not have a rational understanding of either the fact of their execution or the reasons for it (see Panetti v. Quarterman (2007) 551 U.S. 930, 959). A person is permanently incompetent to be executed if the nature of the mental illness or disorder giving rise to incompetence
is such that the incarcerated person’s competence is unlikely to ever be restored. Permanent incompetence may be caused by conditions and circumstances including, but not limited to, severe mental illness nonresponsive to treatment, brain trauma, or a degenerative disease, including age-related dementia, Alzheimer’s disease, and Parkinson’s disease.
(b) Subdivision (a) of Section 1509 of the Penal Code reads: “[a] writ of habeas corpus pursuant to this section is the exclusive procedure for collateral attack on a judgment of death.” Subdivision (d) states: “[a]n initial petition which is untimely under subdivision (c) or a successive petition whenever filed shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which
they were convicted or is ineligible for the sentence... ‘Ineligible for the sentence of death’ means that circumstances exist placing that sentence outside the range of the sentencer’s discretion.”
(c) A person who is permanently incompetent to be executed is categorically ineligible for a sentence of death. Permitting incarcerated persons to present petitions raising their ineligibility for the death penalty based on permanent incompetence is consistent with Section 1509 of the Penal Code (see Briggs v. Brown (2017) 3 Cal.5th 808, 824-825; People v. Boyce (2014) 59 Cal.4th 672, 722).
(d) It is the intent of the Legislature that individuals who are permanently incompetent to be executed be swiftly and efficiently identified and resentenced, in order to promote finality of
judgment and efficient use of scarce state resources.
SEC. 2.
Section 3700 of the Penal Code is repealed.SEC. 3.
Section 3700.5 of the Penal Code is amended and renumbered to read:3700.
When a court enters an order appointing a day upon which a judgment of death shall be executed upon an incarcerated person, the warden of the state prison to whom the incarcerated person has been delivered for execution or, if the incarcerated person is housed at the Central California Women’s Facility, the warden of that facility, shall notify the Secretary of the Department of Corrections and Rehabilitation who shall then select and appoint three psychiatrists or licensed psychologists, all of whom must be from the medical staffs of the Department of Corrections and Rehabilitation to examine the incarcerated person under the judgment of death, and investigate the incarcerated person’s competence to be executed. It is the duty of the psychiatrists or licensed psychologists so selected and appointed to examine the incarcerated person and investigate the incarcerated person’s competence to be executed, and to report their opinions and conclusions in writing to the warden of the prison at which the execution is to take place, or, if the incarcerated person is housed there, the warden of the Central California Women’s Facility, at least 20 days prior to the day appointed for the execution of the judgment of death upon the incarcerated person. Upon receipt, the warden shall serve a copy of the report to counsel for the incarcerated person, to the Attorney General, to the district attorney of the county in which the person was sentenced, and to the Governor.SEC. 4.
Section 3701 of the Penal Code is repealed.SEC. 5.
Section 3701 is added to the Penal Code, to read:3701.
(a) If, after an execution date has been set, there is good reason to believe that an incarcerated person under judgment of death has become incompetent to be executed, the warden shall call that fact to the attention of the district attorney of the county in which the incarcerated person was sentenced, the Attorney General, and the incarcerated person’s counsel. If counsel for the incarcerated person has reason to believe that the incarcerated person is incompetent to be executed, counsel for the incarcerated person has a duty to file within 48 hours in the superior court of the county from which the incarcerated person’s judgment and sentence of death arises, a petition that identifies the conviction and judgment, alleges that the incarcerated person is believed to be incompetent to be executed, and asks that the question of the incarcerated person’s competence to be executed be inquired into. If counsel for the incarcerated person does not file that petition, or the incarcerated person does not have counsel, and the warden has notified the district attorney and the Attorney General that there is reason to believe that the incarcerated person is incompetent to be executed, the Attorney General shall file the petition. During the course of these proceedings, the court shall also consider whether the petitioner is permanently incompetent to be executed within the meaning of subdivision (e). The incarcerated person’s execution may not proceed until the court’s inquiry into the incarcerated person’s competence to be executed is complete.(b) At any time prior to the setting of an execution date, an incarcerated person whose judgment and sentence of death has been affirmed on direct appeal may file a petition alleging the incarcerated person’s permanent incompetence to be executed. The petition must be verified and supported by either the opinion of a qualified expert that the incarcerated person is permanently incompetent within the meaning of subdivision
(e) or medical evidence that the incarcerated person has one or more medical or mental health conditions that would support a finding that the incarcerated person is permanently incompetent within the meaning of subdivision (e).
(c) An incarcerated person who has submitted a petition pursuant to subdivision (b) that did not result in a determination that the incarcerated person is permanently incompetent to be executed may submit a renewed petition. A renewed petition must identify with specificity a change in the incarcerated person’s diagnosis or prognosis or change in the law that arose after the determination of the prior request that supports the renewed petition.
(d) For purposes of this section, “incompetent to be executed” means that, due to mental illness or
disorder, an incarcerated person is unable to rationally understand either the punishment the incarcerated person is about to suffer or why the incarcerated person is to suffer it.
(e) For purposes of this section, “permanent incompetence to be executed” means that the incarcerated person meets both of the following criteria:
(1) The incarcerated person is presently incompetent to be executed.
(2) The nature of the mental illness or disorder giving rise to incompetence is such that the incarcerated person’s competence to be executed is unlikely to ever be restored.
(f) Following the filing of the petition specified in subdivisions (a), (b), or (c), the
court shall hold a hearing if there is reason to believe the incarcerated person is presently incompetent to be executed, as specified in subdivision (a), or there is reason to believe the incarcerated person is permanently incompetent to be executed, as specified in subdivision (b) and (c). The court may decline to hold a hearing if the parties stipulate that no hearing is necessary.
(g) When an incarcerated person proffers an expert opinion that the incarcerated person is incompetent to be executed, another expert’s opinion that concludes otherwise is an insufficient basis to deny a hearing.
(h) For purposes of this section, a claim in a petition for writ of habeas corpus alleging permanent incompetence to be executed that was filed before January 1, 2023, and that is still
pending, shall be treated as a petition filed pursuant to subdivision (b). In those cases, if the court has already concluded that the petitioner made a prima facie showing of entitlement to relief, it shall proceed to a hearing pursuant to this section and Sections 3702 and 3703, unless the parties stipulate otherwise.
(i) A petition filed under this section by an incarcerated person under sentence of death constitutes a petition for writ of habeas corpus within the meaning of subdivision (a) of Section 1509 of the Penal Code and is subject to the requirements of that section. A petition filed by an incarcerated person under this chapter constitutes a claim that the petitioner is ineligible for a sentence of death within the meaning of subdivision (d) of Section 1509 of the Penal Code. No provision of this chapter alters,
changes, or amends any of the statutory provisions contained in the Death Penalty Reform and Savings Act of 2016 enacted by the voters in the November 2016 election within the meaning of Section 20 of that act.
(j) An attorney acting on behalf of the incarcerated person who suspects that the incarcerated person may be incompetent to be executed may obtain an order from the superior court from which the incarcerated person’s conviction and sentence arises directing the Department of Corrections and Rehabilitation to release the incarcerated person’s medical and psychiatric records to the attorney
or the attorney’s representative for use under this section.
(k) This section shall apply retroactively.
SEC. 6.
Section 3702 of the Penal Code is repealed.SEC. 7.
Section 3702 is added to the Penal Code, to read:3702.
(a) The prosecuting agency and the incarcerated person under sentence of death may produce witnesses at any hearing held regarding a petition filed pursuant to Section 3701.(b) When the court concludes that there is reason to believe the incarcerated person is presently or permanently incompetent to be executed, the court shall hear proof produced by either party. The court may compel the attendance of witnesses, by process of subpoena and attachment, and to perform all other acts necessary to a full and fair hearing and determination of the case.
SEC. 8.
Section 3703 of the Penal Code is repealed.SEC. 9.
Section 3703 is added to the Penal Code, to read:3703.
(a) On decision of a petition filed pursuant to Section 3701, the court shall issue a statement explaining the legal and factual basis for the decision.(b) If the court finds by a preponderance of the evidence that the incarcerated person is competent to be executed, the court shall deny the petition.
(c) If the court finds by a preponderance of the evidence that the incarcerated person is permanently incompetent to be executed within the meaning of subdivision (e) of Section 3701, the court shall vacate the sentence or sentences of death and resentence the incarcerated person to life without the
possibility of parole.
(d) In a proceeding under subdivision (a) of Section 3701, if the court finds that the incarcerated person is incompetent to be executed, but does not find by a preponderance of the evidence that competence is unlikely to be restored, the court shall order the warden to suspend the execution and order that the incarcerated person be taken to a medical facility of the Department of Corrections and Rehabilitation, and be kept in safe confinement until their competence to be executed is restored. If the prosecuting agency alerts the court that it believes the incarcerated person’s competence has been restored, the court shall again initiate the procedure set forth in Section 3700 and hold a hearing. In that hearing, the prosecution bears the burden of proving by a preponderance of the evidence that the incarcerated person
is competent to be executed.
(e) The decision denying or granting the petition will be subject to review under Section 1509.1. An appeal from a decision under this chapter shall not be considered successive, nor shall it render any subsequent appeals successive within the meaning of Section 1509.1.
