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COMPETENCE TO STAND TRIAL

1/28/2021

Under California law, a defendant is mentally incompetent to stand trial if, as a result of a mental disorder or developmental disability, he cannot: (1) understand the nature of the criminal proceedings, or (2) assist counsel in preparing a defense in a rational manner, as the person simply isn't able to defend against criminal charges. But what dos that actually mean? It's often clearer to explain looking to whether a person is competent to stand trial. The courts have declared a that a person is competent to stand trial if they have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and have "a rational as well as factual understanding of the proceedings against him." (Dusky v. United States (1960) 362 U.S. 402.) Unlike insanity, the inquiry looks to the person's current cognitive functioning, not that at the time the crime was committed.

There is a general misunderstanding out there that a person can be found incompetent to stand trial if they display strange behavior or are being uncooperative with the process. This is not the case. The person needs to demonstrate a genuine inability to assist with their defense.

As they are often those who work most closely with affected defendants it is often defense counsel who raises a doubt that her client is competent to stand trial, but this doubt can be raised the the judge or any other official involved in the system. From there, that doubt is declared on the record and the defendant is evaluated my a qualified mental health provider to make the determination as to whether the defendant can assist in their own defense.

If the mental health provider believes the person is competent, and after a hearing, if required, the court agrees, the criminal proceedings resume. If the mental health provider agrees that the defendant is not competent, and after a hearing, if required, the court agrees, then the defendant is ordered to participate in competency training, a term we use to describe the process of trying to restore the person to company, through counseling or medication. This training is typically done via the defendants commitment to a mental health hospital or placement is a suitable outpatient program. During this time, a judge can order that the defendant be administered medication against their will.

If the defendant can be restored to competency, the criminal proceedings will be reinstated, picking up from where the proceedings previously left off. If they can't, then the defendant may be forced to remain in the custody of the mental health care facility for an amount of time up to the maximum term for the offense for which they were charged.

A Snapshot of CHANGES to criminal law in 2021

1/19/2021

Every New Years brings about a flurry of sometimes small, sometimes substantial, changes to the way in which our criminal justice system works. Here are the notable changes taking effect in 2021:

The Adult System

Capped probation terms: Perhaps the change which will have the greatest impact on the day-to-day lives of most criminal defendants, AB 1950 enacted a maximum one year probation term for most misdemeanor offenses and two years for felony offenses. There are, of course, some exceptions. (Effective Jan. 1)
Misdemeanor diversion: AB 3234 authorizes judges to offer misdemeanor diversion to most offenders. It is currently under debate whether DUIs will be covered by this change in the law. This change means that if a defendant complies with the terms of diversion the criminal action will ultimately be dismissed and the record erased. Of note, defendants should be aware most domestic violence charges, stalking and registrable sex offenses are not eligible for diversion. (Effective Jan. 1)
Restoration of a felon voting rights: the passage of Proposition 17 gives approximately 50,000 felons on probation the right to vote.
Reduced sex offender registration: SB 384 reduces the length of time for which a registrant must register. It established a three-tier hierarchy of offenses (which looks to the severity of the offense,) setting the registration length for PC 290 registration at 10 years, 20 years or lifetime. (Effective Jan. 1)
California Racial Justice Act: AB 2524 allows defendants who were charged or convicted of a crime to now challenge any racial bias that may have occurred in their case. Upon challenge, they can now seek a new trial or re-sentencing. (Effective Jan. 1)
False reports and harassment: AB 1775 creates a new law, criminalizing the making false 911 calls which are based on someone's race, gender, religion or other type of legally-recognized discrimination, and classifying the offense as a hate crime.

The Juvenile System

Disruptive juveniles in school: AB 901 changes form of punishment of troublesome students, moving away from probation programs to community-based programs, and away from court supervision.
Phasing out juvenile prisons: SB 823, the Juvenile Justice Realignment bill will replace the remaining juvenile prisons with the programs related to the Office of Youth and Community Restoration. (Effective July 1)
Hiding juvenile records: AB 2425 protects the records of juvenile offenders from public inspection. (Effective Jan. 1)

Changes to Law Enforcement Procedures

Banning chokeholds: AB 1196 bans chokeholds and carotid holds by all law enforcement agencies, statewide.
Sheriff oversight: AB 1185 allows for the establishment of a sheriff oversight board and inspector general in each county with subpoena power to help oversee the actions of local sheriff departments.

Victim's Bill of Rights

1/1/2021

In California, a victim of a crime has certain right, granted to them under the State Constitution. These rights are often known as "Marsy's Law" rights.

The purpose of Marsy’s Law is to:

Provide victims with rights to justice and due process.
Eliminate parole hearings in which there is no likelihood a murderer will be paroled, and to provide that a convicted murderer can receive a parole hearing no more frequently than every three years, and can be denied a follow-up parole hearing for as long as 15 years.

Marsy’s Law significantly expands the rights of victims in California. Under Marsy’s Law, the California Constitution article I, § 28, section (b) now provides victims with the following enumerated rights:

To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process.
To be reasonably protected from the defendant and persons acting on behalf of the defendant.
To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.
To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.
To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
To reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case.
To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.
To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.
To provide information to a probation department official conducting a pre-sentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.
To receive, upon request, the pre-sentence report when available to the defendant, except for those portions made confidential by law.
To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant, and the release of or the escape by the defendant from custody.
To restitution.
1. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.
2. Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.
3. All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.
To the prompt return of property when no longer needed as evidence.
To be informed of all parole procedures, to participate in the parole process, to provide information to the parole authority to be considered before the parole of the offender, and to be notified, upon request, of the parole or other release of the offender.
To have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made.
To be informed of the rights enumerated in paragraphs (1) through (16).

COMPETENCE TO STAND TRIAL

A Snapshot of CHANGES to criminal law in 2021

Victim's Bill of Rights

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