BILL ANALYSIS
SB 1195
Page 1
Date of Hearing: July 2, 1996
Counsel: Martin Gonzalez
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Paula L. Boland, Chair
SB 1195 (Polanco) - As Amended: June 27, 1996
Majority vote
SUMMARY: Creates a statutory diversion and deferred entry of
judgment scheme for persons with serious mental disorders.
Specifically, this bill:
1) Provides that the purpose of this bill is to postpone the
prosecution of a person charged with a misdemeanor or
non-serious felony, either temporarily or permanently, at any
point in the judicial process after a plea has been entered and
before adjudication when he/she has a serious mental disorder,
as defined. Participation in a diversion program shall toll
any applicable statutes of limitations in the criminal
proceeding.
2) Provides that participation in a treatment program pursuant to
this chapter is voluntary, and shall not be deemed to abridge a
defendant's constitutional or statutory rights, including the
right to informed consent.
3) States that this chapter does not limit the application of
other provisions of law authorizing the diversion of
defendants, nor does it supersede the authorization for the
treatment and evaluation of mentally disordered prisoners
pursuant specified provisions of law.
4) Defines "serious mental disorder."
5) Authorizes a prosecuting attorney to refer a person with a
serious mental disorder, as specified, to the director of the
county mental health department in the county where the
defendant resides for an appropriate and available mental
health treatment, if specified conditions are met.
6) Authorizes a court to defer, upon motion by the prosecuting
attorney, entry of judgment against a specified mentally
disordered offender if he/she pleads guilty to all charges and
are referred to and complete an approved treatment program.
This bill further provides that upon the defendant's successful
completion of the treatment program and upon the positive
recommendation of the treatment authority and the motion of the
prosecuting attorney, but no later than two years from the date
of the defendant's referral to the treatment program, the court
shall dismiss the charges against the defendant.
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7) Provides, upon any failure of treatment under the bill's
deferred entry of judgment provisions, that the prosecuting
attorney is authorized to move for entry of judgment, and the
court is required, upon a finding of failure of treatment based
on a preponderance of evidence, to enter judgment upon the
defendant's pleas and admissions, and to schedule a
sentencing hearing.
8) Requires that reports regarding the defendant's treatment
progress be submitted by the program to the court, prosecutor
and defense counsel within 30 days of the commencement of
treatment, with subsequent reports due at least every 90 days
thereafter.
9) The court shall not divert or defer entry of judgment for a
defendant if the county mental health department determines
that the appropriate mental health resources are not available
or do not exist.
EXISTING LAW authorizes diversion in certain criminal cases. For
instance, child abuse and neglect cases (Penal Code Section
1000.12(b)), narcotics and drug abuse (Penal Code Section 1000 et
seq.), traffic violations (Penal Code Section 1001.40),
misdemeanors (Penal Code Section 1001.50 et seq.), bad check
writing (Penal Code Section 1001.60 et seq.), contributing to the
delinquency of a minor ("parental diversion") (Penal Code Section
1001.70 et seq.) and cases involving mentally retarded defendants.
(Penal Code Section 1001.20 et seq.)
FISCAL EFFECT: Unknown
COMMENTS
1) According to the author, "Individuals with mental illness are
over-represented in local jails, mostly charged with crimes which
may be symptomatic of an underlying mental disorder. This bill
would allow persons who have been charged with a misdemeanor or a
non-serious, non-violent felony and who plead guilty (deferred
entry of judgment) to be diverted, pretrial, to a community mental
health treatment program on a voluntary basis.
The California Alliance for the Mentally Ill's Criminal Justice
Advisory Committee surveyed law enforcement agencies statewide.
That survey confirmed previous national figures that the most
common charges placed against a person with mental illness were
minor in nature. They include such behaviors as petty theft,
disturbing the peace, public intoxication and trespassing.
Community mental health treatment is less expensive than jail.
Medi-Cal, Medicare and Social Security Insurance benefits, for
example, are not available for persons in jail. They are
available to offenders whose adjudication or sentencing has
been deferred. Other federal programs are, also, available to
non-incarcerated offenders on a limited, case-by-case basis
such as veteran's benefits, HUD housing and food stamps.
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Nationally, it is estimated that people with mental illness
comprises 10% of the population of local jails. In 1992, the
total jail (not prison) population in California was 71,000.
Los Angeles County's jail system alone houses 3,300 people
(with) mental illness on any given day."
2) Serious Mental Disorder. This bill defines "serious mental
disorder" to mean a mental disorder which is severe in degree
and persistent in duration, which may cause behavioral
functioning which interferes substantially with the primary
activities of daily living, and which may result in an
inability to maintain stable adjustment and independent
functioning without treatment, support, and rehabilitation for
a long or indefinite period of time. Serious mental disorders
include, but are not
limited to, schizophrenia, as well as major affective disorders or
other severely disabling mental disorders.
3) Eligibility. This bill authorizes a prosecuting attorney to
refer a person with a serious mental disorder, as specified,
to the county mental health department in the county where the
defendant resides for an appropriate and available mental
health treatment program. The prosecuting attorney shall seek
the advice of the director of that county mental health
department in determining whether or not to make the referral.
Aside from suffering from a serious mental disorder which was
one of the causes or was a factor in the commission of the
crime with which he or she is charged, the defendant must not
be charged with "serious" or "violent" crimes, as specified.
The defendant must not be found to be dangerous to others, as
specified. And, finally, the defendant must not have
participated in this diversion program within two years prior
to the present criminal proceeding.
SHOULD A PROSECUTING ATTORNEY BE CHARGED WITH DETERMINING
WHETHER THE DEFENDANT SUFFERS FROM A SERIOUS MENTAL DISORDER?
Is it the author's intent to conduct a psychological or
psychiatric examination on every person charged with a crime;
otherwise, how would a district attorney know which defendants
qualify for diversion under this chapter?
WOULD NOT THIS BILL CREATE A GREAT INCENTIVE FOR A DEFENDANT
TO FALSELY REPORT SYMPTOMS OF PSYCHOSIS?
4) Scope of the Bill. This bill applies both to misdemeanor and
non-serious/nonviolent felonies. Of the current diversion
statutes, bad check writing can be a wobbler (Penal Code
Section 476(a)); drug offense diversion is available for
felonies not involving violence or threatened violence (Penal
Code Section 1000(a)); child abuse and neglect diversion is
available for some felony molestation or sexual abuse offenses
not involving force (Penal Code Section 1000.12(c)); and, for
mentally retarded offenders, diversion is limited to
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misdemeanor offenses (Penal Code Section 1001.21(b)).
5) Diversion. In a diversion program, the offender is not
required to enter a guilty plea. As a result, in the event
the divertee does not complete the program, the prosecution is
placed in the position of having to prove beyond a reasonable
doubt a case which is six to 18 months old. Because evidence
is lost, and memories fade, this is difficult, if not
impossible, to do.
The California District Attorneys Association (CDAA) suggests
that the proposed program only provide for deferred entry of
judgment, and be limited only to misdemeanors. Should this
bill be amended to reflect CDAA's suggestion?
6) Deferred Entry of Judgment. Under deferred entry of judgment,
the offender must enter a plea of guilty before being placed
on the diversion program. In the event the offender fails the
program, judgment is then entered and he or she stands
convicted of the crime. If the offender is successful in
completing the program, then judgment is never entered and
the person's record is expunged.
This bill requires periodic reports concerning the defendant's
progress under the treatment program to be submitted to the
prosecuting attorney, defense attorney, and court by the
director of a treatment program. Upon the successful
completion of the treatment program, recommendation of the
treatment program authority and motion of the prosecuting
attorney, but no later than two years from the date of
defendant's referral to the treatment program, the court shall
dismiss the charge/charges against the defendant.
If the defendant fails to successfully complete the treatment
program, the prosecuting attorney may make a motion to the
court for entry of judgment. The court shall enter judgment
upon the defendant's pleas and admissions if it finds the
defendant failed to successfully complete the treatment
program based on the preponderance of the evidence.
If, during the treatment period, it appears to the director of
the treatment program, court, or prosecuting attorney the
defendant is performing unsatisfactorily or is not benefiting
from the treatment, or if the defendant is convicted of a
misdemeanor or felony during that period, the court, upon the
request of the treatment program authority, the prosecuting
attorney, or on its own motion, shall hold a hearing to
determine whether criminal proceedings should be
re-instituted.
7) Related Legislation. SB 1369 (Kopp) makes deferred entry of
judgment, instead of diversion, available to a person who
pleads guilty to a drug offense and agrees to attend drug
counseling, as specified. SB 1369 is scheduled to be heard
today by the Committee on Public Safety.
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ARGUMENTS IN SUPPORT: Proponents argue that this bill is
necessary because individuals with mental illness are
over-represented in local jails, mostly charged with crimes which
may be symptomatic of an underlying mental disorder. This bill
makes treatment-based diversion and deferred entry of judgment
available for persons with serious mental disorders, as defined,
who are accused of having committed specified misdemeanors and/or
felonies.
ARGUMENT IN OPPOSITION: Opponents argue that this bill creates an
incentive for felons to exaggerate and/or feign symptoms of a
serious mental disorder in order to avoid conviction or
sentencing.
SUPPORT:
California Alliance for the Mentally Ill
Alliance for the Mentally Ill of Contra Costa, Kern County, Marin
County, Lake County, Long Beach, Sacramento, San Bernardino
Area, San Gabriel Valley, San Mateo County, Santa Clara County,
San Joaquin County, San Luis Obispo County, Shasta County,
Sonoma County, Whittier and Yolo County
Association of Community Mental Health Agencies
California Coalition for Mental Health
California Medical Association
California Mental Health Planning Council
California Probation, Parole, and Correctional Association
California Psychiatric Association
California Psychological Association
Family Alliance for the Mentally Ill
Judicial Council of California
Judge Herald E. Shabo, Supervising Judge of the Mental Health
Departments of of the Superior Court of Los Angeles County
Los Angeles County District Attorney
Mental Health Association in California
Mental Health Board of Ventura County
OPPOSITION:
California District Attorneys Association
City of Los Angeles
California Attorneys for Criminal Justice
Repiratory Care Board of California
Analysis prepared by: Martin Gonzalez / apubs / (916) 445-3268