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    2220 Tulare Street, Suite 300,
    Fresno, CA 93721
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 Mental Health Defenses


      The Fresno County Public Defender’s Office provides defense services to those who are alleged to have mental health disorders which require either confinement or a loss of freedom.

      The various areas in which services are provided include:







      In 1995, the Sexually Violent Predator (SVP) law was passed in California. The law identifies individuals who have been convicted of two sexually violent offenses in the past, and who currently suffer from a mental disorder which predisposes the individual to commit future violent sexual offenses. Despite popular folklore to the contrary, the majority of sexual offenders will not reoffend, as evidenced by detailed statistics kept by state governments after the offenders' release.  The SVP law is designed to spot those who are likely to reoffend and to keep them institutionalized.  Upon their scheduled release from prison, these persons are transferred to the State Hospital. 

     These commitments are civil in nature and can extend for a lifetime. The courts have permitted SVP laws despite claims that they impermissibly violate the Double Jeopardy Clause of the U.S. Constitution by punishing people a second time for offenses for which people have already served their time.  Once a person has been hospitalized under the SVP law, that person has the burden of proving that he or she will not pose a danger if released. A difficult dilemma arises for a hospitalized inmate who is offered treatment at the State Hospital: Treatment typically requires that the offender discuss in detail all sex offenses that he or she committed. However, if he or she provides information about offenses that the Hospital is not aware of, the Hospital may, and usually does, use that information to argue that the inmate should be kept institutionalized.  

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     Inmates at the Department of Corrections who are diagnosed with a mental disorder and are incarcerated as a result of the commission of a violent offense may, when ready to be released for their offense, be committed to the Department of Mental Health under Penal Code Section 2962, for the duration of their parole period. Upon the conclusion of their parole period the Department of Mental Health may request an extension of the commitment for one year. This one-year extension can be then extended one year at a time, indefinitely. (California Penal Code Section 2970.)

     A significant difference between MDO commitments and other commitments is that a diagnosis of "anti-social personality disorder," "mental retardation or other developmental disabilities," or a substance abuse diagnosis are excluded. Thus, although a large number of criminally oriented individuals suffer from those mental disorders, they do not qualify to be committed under the Mentally Disordered Offender statutes.

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     Defendants who were insane at the time of their alleged commission of offense sometimes choose to plead not guilty by reason of insanity. Such a plea, if successful, will result in a finding of "not guilty" but will carry with it a commitment for treatment of the mental disorder that resulted in the commission of a public offense. These commitments often exceed the time that a person would have spent in custody if convicted.  

     An individual committed under Section 1026 will, at the minimum, have to receive inpatient or outpatient treatment for a period of 180 days before applying for restoration of sanity. Individuals may be held in confinement at a state hospital or other secure facility no longer than the maximum period of confinement that they could have received as a criminal punishment. Extensions beyond the maximum period of confinement are for periods of two years and can last a lifetime. Any time after the minimum 180 days of treatment, a hearing can be held to determine if the individual is no longer a danger to society for the purpose of restoration of sanity. If that finding is made, then the individual must complete at least one year on the Conditional Release Program, before a trial may be held to determine if sanity has been restored.

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     Individuals who are unable to understand the nature of the criminal proceedings or are unable to assist their counsel in their defense, as a result of a mental disorder, may be found incompetent to stand trial. If that finding is made under Penal Code Section 1368, then the individual must be evaluated for treatment by the local Community Program Director and referred for treatment for the restoration of competence. This treatment is normally provided at a State Hospital.

     Upon a determination by the Director of the State Hospital that the individual is restored to competence the person is returned to the community to stand trial on the charges. In the unusual case where competence cannot be restored within three years then the charges must be dismissed. In most such instances the individual will be referred to the local Department of Mental Health for evaluation and initiation of proceedings for a conservatorship of the person, often called a "Murphy Conservatorship."

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The Public Defender Office represents the overwhelming majority of people on LPS conservatorship.  The Public Defender also represents many people facing mental health proceedings that look like they may turn into a request for a conservatorship.  

What is an LPS Conservatorship?

    An LPS Conservatorship is a court proceeding to appoint a manager for a person who is alleged to have a mental disability. An LPS Conservatorship is different from a probate conservatorship, which is established for the management of a person’s finances. An LPS Conservatorship of the person is a protective relationship in which a person is appointed by the court to act in the best interest of a gravely disabled individual to ensure that the basic needs for food, clothing, and shelter are met, and if required, to provide the disabled individual with psychiatric care and treatment. An LPS conservatorship may only be intiated by the county. Other types of conservatorships may be instituted by family members.  

     LPS stands for the Lanterman-Petris-Short Act which specifies the conditions under which a person may be involuntarily hospitalized and the rights afforded a person for whom involuntary hospitalization is being sought. (Welfare & Institutions Code §§ 5000 – 5550). Pursuant to the LPS Act, an individual may be involuntarily hospitalized for defined periods of time if the individual meets the appropriate commitment criteria. The legal criteria for a person to be involuntarily detained and treated is "probable cause to believe the person is, due to a mental disorder, a danger to him/herself, a danger to other people, or gravely disabled." "Gravely disabled" is defined as a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic needs for food, clothing or shelter.

     The defined periods of time for confinement include:   

 An initial 72 hour hold for evaluation and treatment,

  • A 14 day certification for intensive treatment,
  • An additional 14 day certification for intensive treatment for people who are suicidal,
  • A 180 day certification for imminently dangerous persons, and 
  • A 30 day hold for additional intensive treatment for gravely disable persons.
  • A one year certification for an LPS conservatorship.

          A "permanent LPS Conservatorship" lasts one year and is renewable if the appropriate criteria are met and legal procedures followed. Before a permanent conservatorship may be established, a trial by judge or jury must be held to determine that the individual is in fact gravely disabled due to a mental disorder, and unwilling or unable to accept treatment on a voluntary basis. The specific powers granted to the conservator are set forth in the court order. The court may remove from the person on conservatorship the following rights:

  • The right to possess a driver's license,
  • The right to enter into contracts,
  • The right to vote,
  • The right to refuse or consent to mental health treatment,
  • The right to refuse or consent to medical treatment for an existing condition,
  • The right to possess firearms, and
  • The right to make medical treatment decisions.

     The court must determine the least restrictive and most appropriate placement for the person on conservatorship. The conservator authorizes the placement of the person in the appropriate setting in the community and can also consent to the hospitalization of the person for psychiatric treatment at any time. Persons subject to a conservatorship may petition the court at any time during the conservatorship to contest certain rights denied to them or powers granted to the conservator. However, once the person has had this hearing, the person cannot have another such hearing for six months. When progress under the treatment plan reveals that the conservatee is no longer gravely disabled, the conservator shall notify the court, which will then terminate the conservatorship. 

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