Agenda

Return

C.65

To:	Board of Supervisors
From:	Silvano B. Marchesi, County Counsel
Date:	December 8, 2009

Contra

Costa

County

Subject:

Delegation of Authority to file petitions for commitment of mentally retarded persons

APPROVE	OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR	RECOMMENDATION OF BOARD COMMITTEE

Action of Board On: 12/08/2009

APPROVED AS RECOMMENDED

OTHER

Clerks Notes:

VOTE OF SUPERVISORS

AYE:

John Gioia, District I Supervisor
Gayle B. Uilkema, District II Supervisor
Mary N. Piepho, District III Supervisor
Susan A. Bonilla, District IV Supervisor
Federal D. Glover, District V Supervisor

Contact:

Silvano B. Marchesi, 335-1810

I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown.
ATTESTED: December 8, 2009
David Twa,

BY:	, Deputy

RECOMMENDATION(S):

ADOPT Resolution No. 2009/554 modifying the Board's delegation to the County Counsel of authority to file petitions for commitment of mentally retarded persons under Welfare & Institutions Code section 6500, to exclude those petitions involving mentally incompetent persons as determined under Penal Code section 1367 and following.

FISCAL IMPACT:

None

BACKGROUND:

State law provides that a mentally retarded person who is a danger to himself or herself or others may be committed to a restrictive facility. (Welfare & Institutions Code, sec. 6500) [Such petitions are called "6500 petitions."] In certain cases, such dangerousness may be shown by a finding that the person is incompetent to stand trial in specified criminal proceedings (such as cases involving murder, armed robbery, mayhem, etc.). The law also provides that in proceedings to decide whether commitment is appropriate, the allegations of mental retardation and danger to self or others "shall be presented by the district attorney for the county unless the board of supervisors, by ordinance or resolution, delegates this authority to the county counsel." (Welfare & Institutions Code, sec. 6500)

For 10 years after the County Counsel's Office was established in 1969, the authoriy to present requests for 6500 petitions remained with the District Attorney. Then, in 1979 the Board delegated the authority to present such requests to the County Counsel. (Resolution No. 79/1052) This delegation probably was made because the requests usually were received from the Regional Center of the East Bay ("RCEB"), which administers commitments to state facilities such as the one located in Porterville, California, and because the circumstances are similar to those involving conservatorships. In the intervening 30 years, however, (especially recently) an increasing number of requests involve defendants in criminal cases whose commitment is expiring and whose competency to stand trial may still be in issue under Penal Code section 1367 ff. The question has arisen whether such latter cases should be presented by the District Attorney (who is much more knowledgeable about both the specific criminal case and criminal law in general than is the County Counsel) or by the County Counsel.

I recommend that the Board transfer the authority as to 6500 petitions in all cases arising from suspended or pending criminal proceedings involving the mental incompetence of a criminal defendant to stand trial under Penal Code section 1367ff. with the District Attorney, and reaffirm the delegation as to all other requests for 6500 petitions to the County Counsel.

The District Attorney concurs in this recommendation.

CONSEQUENCE OF NEGATIVE ACTION:

Authority for filing 6500 petitions will remain uncertain and may lead to some confusion in particular cases.