BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 340 (Ackerman)
As Amended April 9, 2007
Hearing date: April 17, 2007
Penal Code
MK:br
CRIMINAL HISTORY INFORMATION
HISTORY
Source: California Judges Association
Judicial Council
Prior Legislation: None
Support: Los Angeles County District Attorneys Association
Opposition:None known
KEY ISSUE
SHOULD PEOPLE INVESTIGATING POTENTIAL CONSERVATORS OR GUARDIANS FOR
THE COURTS HAVE ACCESS TO STATE SUMMARY CRIMINAL HISTORY
INFORMATION?
PURPOSE
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SB 340 (Ackerman)
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The purpose of this bill is to give direct access to
investigators submitting reports to the courts for LPS
conservatorships, probate conservatorships and guardianships.
Existing law provides generally that a conservator of the
person, of the estate, or of the person and the estate may be
appointed for any person who is gravely disabled as a result of
mental disorder (such as schizophrenia, bi-polar disorder,
clinical depression, obsessive compulsive disorder or other
brain disorders) or impairment by chronic alcoholism and sets
forth the procedures for establishing, administering and
terminating a conservatorship. These are known as LPS
(Lanterman-Petris-Short) Conservatorships. (Welfare and
Institutions Code 5350 et seq.)
Existing law provides that the county mental health program
providing conservative investigation services shall investigate
all alternatives to conservatorship and shall recommend
conservatorship to the court only if no suitable alternatives
are available. The report to the court shall be comprehensive.
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. (Welfare and Institutions
Code 5354.)
Existing law provides the report of the officer providing
conservatorship investigation shall contain his or her
recommendations concerning the powers to be granted to, and the
duties to be imposed upon the conservator, the legal
disabilities to be imposed upon the conservatee, and the proper
placement for the conservatee pursuant to Section 5358. Except
as provided in this section, the report to the court shall also
contain an agreement signed by the person or agency recommended
to serve as conservator certifying that the person or agency is
able and willing to serve as conservator. The public guardian
shall serve as conservator of any person found by a court under
this chapter to be gravely disabled, if the court recommends the
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conservatorship after a conservatorship investigation, and if
the court finds that no other person or entity is willing and
able to serve as conservator. (Welfare and Institutions Code
5356.)
Existing law provides that a "probate conservator" may be
appointed for a person who is unable to provide properly for his
or her personal needs for physical health, food, clothing, or
shelter, except as provided for the person or a conservator of
the estate may be appointed for a person who is substantially
unable to manage his or her own financial resources or resist
fraud or undue influence. (Probate Code 1801 and 1828.5.)
Existing law provides that an investigator investigate and
report to the court on a proposed conservatee for a probate
conservatorship as well as the proposed conservator.
(Probate Code 1826, 1850, 1851, and 2250.6.)
Existing law provides for the creation of guardianships for
minor children or their estate and requires specified
investigations and reports to the court for approval of the
guardianship. (Probate Code 1500 et seq.)
Existing law provides that the Attorney General shall maintain
summary criminal history information and shall furnish the
information to specified persons. (Penal Code 11105.)
This bill provides that the Attorney General shall furnish
summary criminal history information to investigators creating
reports for the courts on potential conservators in LPS
conservatorships, probate conservatorships and guardianships.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA")
IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
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significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill will not aggravate the prison and jail overcrowding
crisis outlined above.
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<5> Primer, supra, fn. 4.
COMMENTS
1.Need for This Bill
According to the author:
The Public Guardian's Office is charged with the
responsibility to oversee the LPS conservatorship for
the most vulnerable of our society. The LPS
conservatorship provides for the care and treatment of
persons who are deemed "gravely disabled" due to
severe mental health issues.
Currently, county departments who must first make a
determination if LPS guardianship is necessary and if
so, then recommend an appropriate conservator to the
court. Unlike probate conservators, the Public
Guardian's Office does not have the authority to
obtain criminal history information on proposed
conservators, such as criminal records for theft,
abuse or narcotics activity.
Senate Bill 340 will authorize the Public Guardian the
ability to receive background information such as drug
arrests, or other criminal behavior on the proposed
conservator. This information is vital to the Court
when making a decision on the recommended conservator.
2. Summary Criminal History Information for Conservator
Investigators
Under existing law only specified persons can get access to
state summary criminal history information which is maintained
by the Attorney General and includes a person's identification
and criminal history information. The courts have access to
information but the people who investigate potential
conservators or guardians on behalf of the courts do not. This
bill gives direct access to this information by those who
investigate conservators for LPS and probate conservatorships
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and guardianships on behalf of the courts. This will give those
doing the investigations on behalf of the courts all the
information they need to give the courts a full evaluation of a
potential conservator or guardian.
The Judicial Council states:
The Judicial Council believes that access to
criminal history information is important in all
guardianship and conservatorship cases, so that the
courts will know whether the proposed guardians and
conservators are fit to serve in this critical
role. Persons subject to guardianships and
conservatorships are, by definition, unable to
provide for their basic care needs and are
particularly vulnerable to abuse. The courts
should know if a proposed guardian or conservator
has a criminal background, as this is crucial
information in determining whether the individual
is appropriate for appointment as a fiduciary for
minors and dependent adults.
SHOULD PEOPLE INVESTIGATING POTENTIAL CONSERVATORS OR GUARDIANS
FOR THE COURTS HAVE ACCESS TO STATE SUMMARY CRIMINAL HISTORY
INFORMATION?
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