SB 1412, as amended, Nielsen. Criminal proceedings: mentally incompetent offenders.
(1) Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated and by which the defendant receives treatment, including, if applicable, antipsychotic medication, with the goal of returning the defendant to competency. Existing law credits time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the term of any imprisonment for which the defendant is sentenced.
This bill would, similarly, prohibit a person from having his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. The bill would establish a process by which the person’s mental competency is evaluated and by which the defendant receives treatment, including, if applicable, antipsychotic medication, with the goal of returning the person to competency. The bill would credit time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the period of revocation or the remaining term of supervision that was suspended. If a defendant is found mentally incompetent during postrelease community supervision or parole revocation hearings, the bill would allow the court to order the defendant to undergo treatment, dismiss the pending revocation matter and return the defendant to supervision, in which case the bill would allow the court to modify the terms and conditions of supervision or refer the matter to the public guardian of the county to initiate conservatorship proceedings, or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant. By increasing the duties of local officials, including the county mental health director and county public guardian, the bill would impose a state-mandated local program.
If a person subject to parole due to a conviction for an offense of first or 2nd degree murder or a registerable sex offense in which one or more of the victims of the offense was a child under 14 years of age is found mentally incompetent, the bill would require the court to order the person to undergo treatment to restore mental competency. If his or her mental competency is not restored, the bill would establish procedures for his or her supervision or referral, as specified.
The bill would also make conforming changes.
(2) During the pendency of an action in a case in which the defendant has been charged with a misdemeanor, if the defendant’s behavior leads the judge to conclude that the defendant is mentally disordered and incompetent to stand trial, existing law requires the judge to state the conclusion in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally disordered. Existing law requires the court to order the defendant to be referred for evaluation and treatment, as specified, if counsel for the defendant informs the court that he or she believes the defendant is or may be mentally disordered.
This bill would repeal those provisions.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 1367 of the Penal Code is amended to
2read:
(a) A person cannot be tried or adjudged to punishment
4or have his or her probation, mandatory supervision, postrelease
5community supervision, or parole revoked while that person is
6mentally incompetent. A defendant is mentally incompetent for
7purposes of this chapter if, as a result of mental disorder or
8developmental disability, the defendant is unable to understand
9the nature of the criminal proceedings or to assist counsel in the
10conduct of a defense in a rational manner.
11(b) Section 1370 shall apply to a person who is charged with a
12felony or alleged to have violated the terms of probationbegin insert
for a
13felonyend insert or mandatory supervision and is incompetent as a result of
14a mental disorder. Section 1370.01 shall apply to a person who is
15charged
with a misdemeanor or misdemeanors only, or a violation
16of formal or informal probation for a misdemeanor, and the judge
17finds reason to believe that the defendant is mentally disordered,
18and may, as a result of the mental disorder, be incompetent to stand
19trial. Section 1370.1 shall apply to a person who is incompetent
20as a result of a developmental disability and shall apply to a person
21who is incompetent as a result of a mental disorder, but is also
22developmentally disabled. Section 1370.02 shall apply to a person
23alleged to have violated the terms of his or her postrelease
24community supervision or parole.
Section 1367.1 of the Penal Code is repealed.
Section 1368 of the Penal Code is amended to read:
(a) If, during the pendency of an action and prior to
28judgment, or during revocation proceedings for a violation of
29probation, mandatory supervision, postrelease community
30supervision, or parole, a doubt arises in the mind of the judge as
31to the mental competence of the defendant, he or she shall state
32that doubt in the record and inquire of the attorney for the defendant
33whether, in the opinion of the attorney, the defendant is mentally
P4 1competent. If the defendant is not represented by counsel, the court
2shall appoint counsel. At the request of the defendant or his or her
3counsel or upon its own motion, the court shall recess the
4proceedings for as long as may be reasonably necessary to permit
5counsel to
confer with the defendant and to form an opinion as to
6the mental competence of the defendant at that point in time.
7(b) If counsel informs the court that he or she believes the
8defendant is or may be mentally incompetent, the court shall order
9that the question of the defendant’s mental competence is to be
10determined in a hearing which is held pursuant to Sections 1368.1
11and 1369. If counsel informs the court that he or she believes the
12defendant is mentally competent, the court may nevertheless order
13 a hearing. Any hearing shall be held in the superior court.
14(c) Except as provided in Section 1368.1, when an order for a
15hearing into the present mental competence of the defendant has
16been issued, all proceedings in the criminal prosecution shall be
17suspended until the question of the
present mental competence of
18the defendant has been determined.
19If a jury has been impaneled and sworn to try the defendant, the
20jury shall be discharged only if it appears to the court that undue
21hardship to the jurors would result if the jury is retained on call.
22If the defendant is declared mentally incompetent, the jury shall
23be discharged.
Section 1368.1 of the Penal Code is amended to read:
(a) If the action is on a complaint charging a felony,
26proceedings to determine mental competence shall be held prior
27to the filing of an information unless the counsel for the defendant
28requests a preliminary examination under the provisions of Section
29859b. At such preliminary examination, counsel for the defendant
30may (1) demur, (2) move to dismiss the complaint on the ground
31that there is not reasonable cause to believe that a felony has been
32committed and that the defendant is guilty thereof, or (3) make a
33motion under Section 1538.5.
34(b) If the action is on a complaint charging a misdemeanor,
35counsel for the defendant may (1) demur, (2) move
to dismiss the
36complaint on the ground that there is not reasonable cause to
37
believe that a public offense has been committed and that the
38defendant is guilty thereof, or (3) make a motion under Section
391538.5.
P5 1(c) If the proceeding involves an alleged violation of probation,
2mandatory supervision, postrelease community supervision, or
3parole, counsel for the defendant may move to reinstate supervision
4on the ground that there is not probable cause to believe that the
5defendant violated the terms of his or her supervision.
6(d) In ruling upon any demurrer or motion described in
7subdivision (a), (b), or (c), the court may hear any matter which
8is capable of fair determination without the personal participation
9of the defendant.
10(e) A demurrer or motion described in subdivision (a),
(b), or
11(c) shall be made in the court having jurisdiction over the
12complaint. The defendant shall not be certified until the demurrer
13or motion has been decided.
Section 1369 of the Penal Code is amended to read:
Except as stated in subdivision (g), a trial by court or
16jury of the question of mental competence shall proceed in the
17following order:
18(a) The court shall appoint a psychiatrist or licensed
19psychologist, and any other expert the court may deem appropriate,
20to examine the defendant. In any case where the defendant or the
21defendant’s counsel informs the court that the defendant is not
22seeking a finding of mental incompetence, the court shall appoint
23two psychiatrists, licensed psychologists, or a combination thereof.
24One of the psychiatrists or licensed psychologists may be named
25by the defense and one may be named by the prosecution. The
26examining psychiatrists
or licensed psychologists shall evaluate
27the nature of the defendant’s mental disorder, if any, the
28defendant’s ability or inability to understand the nature of the
29criminal proceedings or assist counsel in the conduct of a defense
30in a rational manner as a result of a mental disorder and, if within
31the scope of their licenses and appropriate to their opinions,
32whether or not treatment with antipsychotic medication is medically
33appropriate for the defendant and whether antipsychotic medication
34is likely to restore the defendant to mental competence. If an
35examining psychologist is of the opinion that antipsychotic
36medication may be medically appropriate for the defendant and
37that the defendant should be evaluated by a psychiatrist to
38determine if antipsychotic medication is medically appropriate,
39the psychologist shall inform the court of this opinion and his or
40her recommendation as to
whether a psychiatrist should examine
P6 1the defendant. The examining psychiatrists or licensed
2psychologists shall also address the issues of whether the defendant
3has capacity to make decisions regarding antipsychotic medication
4and whether the defendant is a danger to self or others. If the
5defendant is examined by a psychiatrist and the psychiatrist forms
6an opinion as to whether or not treatment with antipsychotic
7medication is medically appropriate, the psychiatrist shall inform
8the court of his or her opinions as to the likely or potential side
9effects of the medication, the expected efficacy of the medication,
10possible alternative treatments, and whether it is medically
11appropriate to administer antipsychotic medication in the county
12jail. If it is suspected the defendant is developmentally disabled,
13the court shall appoint the director of the regional center for the
14developmentally disabled
established under Division 4.5
15(commencing with Section 4500) of the Welfare and Institutions
16Code, or the designee of the director, to examine the defendant.
17The court may order the developmentally disabled defendant to
18be confined for examination in a residential facility or state
19hospital.
20The regional center director shall recommend to the court a
21suitable residential facility or state hospital. Prior to issuing an
22order pursuant to this section, the court shall consider the
23recommendation of the regional center director. While the person
24is confined pursuant to order of the court under this section, he or
25she shall be provided with necessary care and treatment.
26(b) (1) The counsel for the defendant shall offer evidence in
27support of the allegation of mental
incompetence.
28(2) If the defense declines to offer any evidence in support of
29the allegation of mental incompetence, the prosecution may do so.
30(c) The prosecution shall present its case regarding the issue of
31the defendant’s present mental competence.
32(d) Each party may offer rebutting testimony, unless the court,
33for good reason in furtherance of justice, also permits other
34evidence in support of the original contention.
35(e) When the evidence is concluded, unless the case is submitted
36without final argument, the prosecution shall make its final
37argument and the defense shall conclude with its final argument
38to the court or jury.
39(f) In a jury trial, the court shall charge the jury, instructing
40them on all matters of law necessary for the rendering of a verdict.
P7 1It shall be presumed that the defendant is mentally competent
2unless it is proved by a preponderance of the evidence that the
3defendant is mentally incompetent. The verdict of the jury shall
4be unanimous.
5(g) Only a court trial is required to determine competency in
6any proceeding for a violation of probation, mandatory supervision,
7postrelease community supervision, or parole.
Section 1369.1 of the Penal Code is amended to read:
(a) As used in this chapter, “treatment facility”
10includes a county jail. Upon the concurrence of the county board
11of supervisors, the county mental health director, and the county
12sheriff, the jail may be designated to provide medically approved
13medication to defendants found to be mentally incompetent and
14unable to provide informed consent due to a mental disorder,
15pursuant to this chapter. In the case of Madera, Napa, and Santa
16Clara Counties, the concurrence shall be with the board of
17supervisors, the county mental health director, and the county
18sheriff or the chief of corrections. The provisions of Sectionsbegin delete 1370 begin insert
1370, 1370.01, and 1370.02end insert shall apply to
19and 1370.01end delete
20antipsychotic medications provided in a county jail, provided,
21however, that the maximum period of time a defendant may be
22treated in a treatment facility pursuant to this section shall not
23exceed six months.begin delete The provisions of Section 1370.02 shall apply
24to antipsychotic medications provided to a person in a county jail
25pending revocation of postrelease community supervision,
26provided, however, that the maximum period of time a defendant
27may be treated in a treatment facility pursuant to this section shall
28not exceed one year. The provisions of Section 1370 shall apply
29to antipsychotic medications provided to a person in a county jail
30pending revocation of mandatory supervision, provided, however,
31that the maximum period of time a defendant may be treated in a
32treatment facility pursuant to this section shall not exceed the
33remaining period of mandatory supervision imposed pursuant to
34subparagraph (B) of paragraph (5) of subdivision (h) of Section
351170.end delete
36(b) This section does not abrogate or limit any law enacted to
37ensure the due process rights set forth in Sell v. United States
38(2003) 539 U.S. 166.
P8 1(c) This section shall remain in effect only until January 1, 2016,
2and as of that date is repealed, unless a later enacted statute, that
3is enacted before January 1, 2016, deletes or extends that date.
Section 1370 of the Penal Code is amended to read:
(a) (1) (A) If the defendant is found mentally
6competent, the criminal process shall resume, the trial on the
7offense charged or hearing on the alleged violation shall proceed,
8and judgment may be pronounced.
9(B) If the defendant is found mentally incompetent, the trial,
10the hearing on the alleged violation, or the judgment shall be
11suspended until the person becomes mentally competent.
12(i) In the meantime, the court shall order that the mentally
13incompetent defendant be delivered by the sheriff to a state hospital
14for the care and treatment of the mentally disordered, or to any
15other
available public or private treatment facility, including a
16local county jail treatment facility, approved by the community
17program director that will promote the defendant’s speedy
18restoration to mental competence, or placed on outpatient status
19as specified in Section 1600.
20(ii) However, if the action against the defendant who has been
21found mentally incompetent is on a complaint charging a felony
22offense specified in Section 290, the prosecutor shall determine
23whether the defendant previously has been found mentally
24incompetent to stand trial pursuant to this chapter on a charge of
25a Section 290 offense, or whether the defendant is currently the
26subject of a pending Section 1368 proceeding arising out of a
27charge of a Section 290 offense. If either determination is made,
28the prosecutor shall so notify the court and defendant in writing.
29After
this notification, and opportunity for hearing, the court shall
30order that the defendant be delivered by the sheriff to a state
31hospital or other secure treatment facility for the care and treatment
32of the mentally disordered unless the court makes specific findings
33on the record that an alternative placement would provide more
34appropriate treatment for the defendant and would not pose a
35danger to the health and safety of others.
36(iii) If the action against the defendant who has been found
37mentally incompetent is on a complaint charging a felony offense
38specified in Section 290 and the defendant has been denied bail
39pursuant to subdivision (b) of Section 12 of Article I of the
40California Constitution because the court has found, based upon
P9 1clear and convincing evidence, a substantial likelihood that the
2person’s release would result in
great bodily harm to others, the
3court shall order that the defendant be delivered by the sheriff to
4a state hospital for the care and treatment of the mentally disordered
5unless the court makes specific findings on the record that an
6alternative placement would provide more appropriate treatment
7for the defendant and would not pose a danger to the health and
8safety of others.
9(iv) The clerk of the court shall notify the Department of Justice
10in writing of any finding of mental incompetence with respect to
11a defendant who is subject to clause (ii) or (iii) for inclusion in his
12or her state summary criminal history information.
13(C) Upon the filing of a certificate of restoration to competence,
14the court shall order that the defendant be returned to court in
15accordance with Section 1372.
The court shall transmit a copy of
16its order to the community program director or a designee.
17(D) A defendant charged with a violent felony may not be
18delivered to a state hospital or treatment facility pursuant to this
19subdivision unless the state hospital or treatment facility has a
20secured perimeter or a locked and controlled treatment facility,
21and the judge determines that the public safety will be protected.
22(E) For purposes of this paragraph, “violent felony” means an
23offense specified in subdivision (c) of Section 667.5.
24(F) A defendant charged with a violent felony may be placed
25on outpatient status, as specified in Section 1600, only if the court
26finds that the placement will not pose a danger to the health or
27safety
of others. If the court places a defendant charged with a
28violent felony on outpatient status, as specified in Section 1600,
29the court must serve copies of the placement order on defense
30counsel, the sheriff in the county where the defendant will be
31placed and the district attorney for the county in which the violent
32felony charges are pending against the defendant.
33(2) Prior to making the order directing that the defendant be
34confined in a state hospital or other treatment facility or placed on
35outpatient status, the court shall proceed as follows:
36(A) The court shall order the community program director or a
37designee to evaluate the defendant and to submit to the court within
3815 judicial days of the order a written recommendation as to
39whether the defendant should be required to
undergo outpatient
40treatment, or committed to a state hospital or to any other treatment
P10 1facility. No person shall be admitted to a state hospital or other
2treatment facility or placed on outpatient status under this section
3without having been evaluated by the community program director
4or a designee. The community program director or designee shall
5evaluate the appropriate placement for the defendant between a
6state hospital or a local county jail treatment facility based upon
7guidelines provided by the State Department of State Hospitals.
8If a local county jail treatment facility is selected, the State
9Department of State Hospitals shall provide treatment at the county
10jail treatment facility and reimburse the county jail treatment
11facility for the reasonable costs of the bed during the treatment.
12The six-month limitation in Section 1369.1 shall not apply to
13 individuals deemed incompetent to
stand trial who are being treated
14to restore competency within a county jail treatment facility
15pursuant to this section.
16(B) The court shall hear and determine whether the defendant
17lacks capacity to make decisions regarding the administration of
18antipsychotic medication, and shall proceed as follows:
19(i) The court shall hear and determine whether any of the
20following is true:
21(I) The defendant lacks capacity to make decisions regarding
22antipsychotic medication, the defendant’s mental disorder requires
23medical treatment with antipsychotic medication, and, if the
24defendant’s mental disorder is not treated with antipsychotic
25medication, it is probable that serious harm to the physical or
26mental health of the patient
will result. Probability of serious harm
27to the physical or mental health of the defendant requires evidence
28that the defendant is presently suffering adverse effects to his or
29her physical or mental health, or the defendant has previously
30suffered these effects as a result of a mental disorder and his or
31her condition is substantially deteriorating. The fact that a
32defendant has a diagnosis of a mental disorder does not alone
33establish probability of serious harm to the physical or mental
34health of the defendant.
35(II) The defendant is a danger to others, in that the defendant
36has inflicted, attempted to inflict, or made a serious threat of
37inflicting substantial physical harm on another while in custody,
38or the defendant had inflicted, attempted to inflict, or made a
39serious threat of inflicting substantial physical harm on another
40that
resulted in his or her being taken into custody, and the
P11 1defendant presents, as a result of mental disorder or mental defect,
2a demonstrated danger of inflicting substantial physical harm on
3others. Demonstrated danger may be based on an assessment of
4the defendant’s present mental condition, including a consideration
5of past behavior of the defendant within six years prior to the time
6the defendant last attempted to inflict, inflicted, or threatened to
7inflict substantial physical harm on another, and other relevant
8evidence.
9(III) The people have charged the defendant with a serious crime
10against the person or property, involuntary administration of
11antipsychotic medication is substantially likely to render the
12defendant competent to stand trial, the medication is unlikely to
13have side effects that interfere with the defendant’s ability to
14understand
the nature of the criminal proceedings or to assist
15counsel in the conduct of a defense in a reasonable manner, less
16intrusive treatments are unlikely to have substantially the same
17results, and antipsychotic medication is in the patient’s best medical
18interest in light of his or her medical condition.
19(ii) If the court finds any of the conditions described in clause
20(i) to be true, the court shall issue an order authorizing the treatment
21facility to involuntarily administer antipsychotic medication to the
22defendant when and as prescribed by the defendant’s treating
23psychiatrist. The court shall not order involuntary administration
24of psychotropic medication under subclause (III) of clause (i)
25unless the court has first found that the defendant does not meet
26the criteria for involuntary administration of psychotropic
27medication under
subclause (I) of clause (i) and does not meet the
28criteria under subclause (II) of clause (i).
29(iii) In all cases, the treating hospital, facility, or program may
30administer medically appropriate antipsychotic medication
31prescribed by a psychiatrist in an emergency as described in
32subdivision (m) of Section 5008 of the Welfare and Institutions
33Code.
34(iv) If the court has determined that the defendant has the
35capacity to make decisions regarding antipsychotic medication,
36and if the defendant, with advice of his or her counsel, consents,
37the court order of commitment shall include confirmation that
38antipsychotic medication may be given to the defendant as
39prescribed by a treating psychiatrist pursuant to the defendant’s
40consent. The commitment order shall also indicate that, if
the
P12 1defendant withdraws consent for antipsychotic medication, after
2the treating psychiatrist complies with the provisions of
3subparagraph (C), the defendant shall be returned to court for a
4hearing in accordance with subparagraphs (C) and (D) regarding
5whether antipsychotic medication shall be administered
6involuntarily.
7(v) If the court has determined that the defendant has the
8capacity to make decisions regarding antipsychotic medication
9and if the defendant, with advice from his or her counsel, does not
10consent, the court order for commitment shall indicate that, after
11the treating psychiatrist complies with the provisions of
12subparagraph (C), the defendant shall be returned to court for a
13hearing in accordance with subparagraphs (C) and (D) regarding
14whether antipsychotic medication shall be administered
15involuntarily.
16(vi) Any report made pursuant to paragraph (1) of subdivision
17(b) shall include a description of any antipsychotic medication
18administered to the defendant and its effects and side effects,
19including effects on the defendant’s appearance or behavior that
20would affect the defendant’s ability to understand the nature of
21the criminal proceedings or to assist counsel in the conduct of a
22defense in a reasonable manner. During the time the defendant is
23confined in a state hospital or other treatment facility or placed on
24outpatient status, either the defendant or the people may request
25that the court review any order made pursuant to this subdivision.
26The defendant, to the same extent enjoyed by other patients in the
27state hospital or other treatment facility, shall have the right to
28contact the patients’ rights advocate regarding his or her rights
29under
this section.
30(C) If the defendant consented to antipsychotic medication as
31described in clause (iv) of subparagraph (B), but subsequently
32withdraws his or her consent, or, if involuntary antipsychotic
33medication was not ordered pursuant to clause (v) of subparagraph
34(B), and the treating psychiatrist determines that antipsychotic
35medication has become medically necessary and appropriate, the
36treating psychiatrist shall make efforts to obtain informed consent
37from the defendant for antipsychotic medication. If informed
38consent is not obtained from the defendant, and the treating
39psychiatrist is of the opinion that the defendant lacks capacity to
40make decisions regarding antipsychotic medication based on the
P13 1conditions described in subclause (I) or (II) of clause (i) of
2subparagraph (B), the treating psychiatrist shall certify whether
3the
lack of capacity and any applicable conditions described above
4exist. That certification shall contain an assessment of the current
5mental status of the defendant and the opinion of the treating
6psychiatrist that involuntary antipsychotic medication has become
7medically necessary and appropriate.
8(D) (i) If the treating psychiatrist certifies that antipsychotic
9medication has become medically necessary and appropriate
10pursuant to subparagraph (C), antipsychotic medication may be
11administered to the defendant for not more than 21 days, provided,
12however, that, within 72 hours of the certification, the defendant
13is provided a medication review hearing before an administrative
14law judge to be conducted at the facility where the defendant is
15receiving treatment. The treating psychiatrist shall present the case
16for the
certification for involuntary treatment and the defendant
17shall be represented by an attorney or a patients’ rights advocate.
18The attorney or patients’ rights advocate shall be appointed to meet
19with the defendant no later than one day prior to the medication
20review hearing to review the defendant’s rights at the medication
21review hearing, discuss the process, answer questions or concerns
22regarding involuntary medication or the hearing, assist the
23defendant in preparing for the hearing and advocating for his or
24her interests at the hearing, review the panel’s final determination
25following the hearing, advise the defendant of his or her right to
26judicial review of the panel’s decision, and provide the defendant
27with referral information for legal advice on the subject. The
28defendant shall also have the following rights with respect to the
29medication review hearing:
30(I) To be given timely access to the defendant’s records.
31(II) To be present at the hearing, unless the defendant waives
32that right.
33(III) To present evidence at the hearing.
34(IV) To question persons presenting evidence supporting
35involuntary medication.
36(V) To make reasonable requests for attendance of witnesses
37on the defendant’s behalf.
38(VI) To a hearing conducted in an impartial and informal
39manner.
P14 1(ii) If the administrative law judge determines that the defendant
2either
meets the criteria specified in subclause (I) of clause (i) of
3subparagraph (B), or meets the criteria specified in subclause (II)
4of clause (i) of subparagraph (B), then antipsychotic medication
5may continue to be administered to the defendant for the 21-day
6certification period. Concurrently with the treating psychiatrist’s
7certification, the treating psychiatrist shall file a copy of the
8certification and a petition with the court for issuance of an order
9to administer antipsychotic medication beyond the 21-day
10certification period. For purposes of this subparagraph, the treating
11psychiatrist shall not be required to pay or deposit any fee for the
12filing of the petition or other document or paper related to the
13petition.
14(iii) If the administrative law judge disagrees with the
15certification, medication may not be administered involuntarily
16until
the court determines that antipsychotic medication should be
17administered pursuant to this section.
18(iv) The court shall provide notice to the prosecuting attorney
19and to the attorney representing the defendant, and shall hold a
20hearing, no later than 18 days from the date of the certification, to
21determine whether antipsychotic medication should be ordered
22beyond the certification period.
23(v) If, as a result of the hearing, the court determines that
24antipsychotic medication should be administered beyond the
25certification period, the court shall issue an order authorizing the
26administration of that medication.
27(vi) The court shall render its decision on the petition and issue
28its order no later than three calendar days
after the hearing and, in
29any event, no later than the expiration of the 21-day certification
30period.
31(3) When the court orders that the defendant be confined in a
32state hospital or other public or private treatment facility, the court
33shall provide copies of the following documents which shall be
34taken with the defendant to the state hospital or other treatment
35facility where the defendant is to be confined:
36(A) The commitment order, including a specification of the
37charges.
38(B) A computation or statement setting forth the maximum term
39of commitment in accordance with subdivision (c).
P15 1(C) A computation or statement setting forth the amount of
2credit
for time served, if any, to be deducted from the maximum
3term of commitment.
4(D) State summary criminal history information.
5(E) Any arrest reports prepared by the police department or
6other law enforcement agency.
7(F) Any court-ordered psychiatric examination or evaluation
8reports.
9(G) The community program director’s placement
10recommendation report.
11(H) Records of any finding of mental incompetence pursuant
12to this chapter arising out of a complaint charging a felony offense
13specified in Section 290 or any pending Section 1368 proceeding
14arising out of a charge of a Section 290 offense.
15(4) When the defendant is committed to a treatment facility
16pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
17court makes the findings specified in clause (ii) or (iii) of
18subparagraph (B) of paragraph (1) to assign the defendant to a
19treatment facility other than a state hospital or other secure
20treatment facility, the court shall order that notice be given to the
21appropriate law enforcement agency or agencies having local
22jurisdiction at the site of the placement facility of any finding of
23mental incompetence pursuant to this chapter arising out of a
24charge of a Section 290 offense.
25(5) When directing that the defendant be confined in a state
26hospital pursuant to this subdivision, the court shall select the
27hospital in accordance with the policies established by
the State
28Department of State Hospitals.
29(6) (A) If the defendant is committed or transferred to a state
30hospital pursuant to this section, the court may, upon receiving the
31written recommendation of the medical director of the state hospital
32and the community program director that the defendant be
33transferred to a public or private treatment facility approved by
34the community program director, order the defendant transferred
35to that facility. If the defendant is committed or transferred to a
36public or private treatment facility approved by the community
37program director, the court may, upon receiving the written
38recommendation of the community program director, transfer the
39defendant to a state hospital or to another public or private
40treatment facility approved by the community program director.
P16 1In the
event of dismissal of the criminal charges before the
2defendant recovers competence, the person shall be subject to the
3applicable provisions of the Lanterman-Petris-Short Act (Part 1
4(commencing with Section 5000) of Division 5 of the Welfare and
5Institutions Code). Where either the defendant or the prosecutor
6chooses to contest either kind of order of transfer, a petition may
7be filed in the court for a hearing, which shall be held if the court
8determines that sufficient grounds exist. At the hearing, the
9prosecuting attorney or the defendant may present evidence bearing
10on the order of transfer. The court shall use the same standards as
11are used in conducting probation revocation hearings pursuant to
12Section 1203.2.
13Prior to making an order for transfer under this section, the court
14shall notify the defendant, the attorney of record for the defendant,
15the
prosecuting attorney, and the community program director or
16a designee.
17(B) If the defendant is initially committed to a state hospital or
18secure treatment facility pursuant to clause (ii) or (iii) of
19subparagraph (B) of paragraph (1) and is subsequently transferred
20to any other facility, copies of the documents specified in paragraph
21(3) shall be taken with the defendant to each subsequent facility
22to which the defendant is transferred. The transferring facility shall
23also notify the appropriate law enforcement agency or agencies
24having local jurisdiction at the site of the new facility that the
25defendant is a person subject to clause (ii) or (iii) of subparagraph
26(B) of paragraph (1).
27(7) An order by the court authorizing involuntary medication
28of the defendant shall be valid
for no more than one year. The
29court shall review the order six months after the order was made
30to determine if the grounds for the authorization remain. In the
31review, the court shall consider the reports of the treating
32psychiatrist or psychiatrists and the defendant’s patients’ rights
33advocate or attorney. The court may require testimony from the
34treating psychiatrist or psychiatrists and the patients’ rights
35advocate or attorney, if necessary. The court may continue the
36order authorizing involuntary medication for up to another six
37months, or vacate the order, or make any other appropriate order.
38(b) (1) Within 90 days of a commitment made pursuant to
39subdivision (a), the medical director of the state hospital or other
40treatment facility to which the defendant is confined shall make a
P17 1written report to the
court and the community program director
2for the county or region of commitment, or a designee, concerning
3the defendant’s progress toward recovery of mental competence.
4Where the defendant is on outpatient status, the outpatient treatment
5staff shall make a written report to the community program director
6concerning the defendant’s progress toward recovery of mental
7competence. Within 90 days of placement on outpatient status, the
8community program director shall report to the court on this matter.
9If the defendant has not recovered mental competence, but the
10report discloses a substantial likelihood that the defendant will
11regain mental competence in the foreseeable future, the defendant
12shall remain in the state hospital or other treatment facility or on
13outpatient status. Thereafter, at six-month intervals or until the
14defendant becomes mentally competent, where the defendant is
15confined in a treatment
facility, the medical director of the hospital
16or person in charge of the facility shall report in writing to the
17court and the community program director or a designee regarding
18the defendant’s progress toward recovery of mental competence.
19Where the defendant is on outpatient status, after the initial 90-day
20report, the outpatient treatment staff shall report to the community
21program director on the defendant’s progress toward recovery,
22and the community program director shall report to the court on
23this matter at six-month intervals. A copy of these reports shall be
24
provided to the prosecutor and defense counsel by the court. If the
25report indicates that there is no substantial likelihood that the
26defendant will regain mental competence in the foreseeable future,
27the committing court shall order the defendant to be returned to
28the court for proceedings pursuant to paragraph (2) of subdivision
29(c). The court shall transmit a copy of its order to the community
30program director or a designee.
31(2) Where the court has issued an order authorizing the treating
32facility to involuntarily administer antipsychotic medication to the
33defendant, the reports made at six-month intervals concerning the
34defendant’s progress toward regaining competency shall also
35consider the issue of involuntary medication. Each report shall
36include, but is not limited to, all the following:
37(A) Whether or not the defendant has the capacity to make
38decisions concerning antipsychotic medication.
39(B) If the defendant lacks capacity to make decisions concerning
40antipsychotic medication, whether the defendant risks serious harm
P18 1to his or her physical or mental health if not treated with
2antipsychotic medication.
3(C) Whether or not the defendant presents a danger to others if
4he or she is not treated with antipsychotic medication.
5(D) Whether the defendant has a mental illness for which
6medications are the only effective treatment.
7(E) Whether there are any side effects from the medication
8currently
being experienced by the defendant that would interfere
9with the defendant’s ability to collaborate with counsel.
10(F) Whether there are any effective alternatives to medication.
11(G) How quickly the medication is likely to bring the defendant
12to competency.
13(H) Whether the treatment plan includes methods other than
14medication to restore the defendant to competency.
15(I) A statement, if applicable, that no medication is likely to
16restore the defendant to competency.
17(3) After reviewing the reports, the court shall determine whether
18or not grounds for the order authorizing involuntary administration
19of
antipsychotic medication still exist and shall do one of the
20following:
21(A) If the original grounds for involuntary medication still exist,
22the order authorizing the treating facility to involuntarily administer
23antipsychotic medication to the defendant shall remain in effect.
24(B) If the original grounds for involuntary medication no longer
25exist, and there is no other basis for involuntary administration of
26antipsychotic medication, the order for the involuntary
27administration of antipsychotic medication shall be vacated.
28(C) If the original grounds for involuntary medication no longer
29exist, and the report states that there is another basis for involuntary
30administration of antipsychotic medication, the court shall set a
31hearing
within 21 days to determine whether the order for the
32involuntary administration of antipsychotic medication shall be
33vacated or whether a new order for the involuntary administration
34of antipsychotic medication shall be issued. The hearing shall
35proceed as set forth in subparagraph (B) of paragraph (2) of
36subdivision (a).
37(4) Any defendant who has been committed or has been on
38outpatient status for 18 months and is still hospitalized or on
39outpatient status shall be returned to the committing court where
40a hearing shall be held pursuant to the procedures set forth in
P19 1Section 1369. The court shall transmit a copy of its order to the
2community program director or a designee.
3(5) If it is determined by the court that no treatment for the
4defendant’s mental impairment is being
conducted, the defendant
5shall be returned to the committing court. The court shall transmit
6a copy of its order to the community program director or a
7designee.
8(6) At each review by the court specified in this subdivision,
9the court shall determine if the security level of housing and
10treatment is appropriate and may make an order in accordance
11with its determination. If the court determines that the defendant
12shall continue to be treated in the state hospital or on an outpatient
13basis, the court shall determine issues concerning administration
14of antipsychotic medication, as set forth in subparagraph (B) of
15paragraph (2) of subdivision (a).
16(c) (1) At the end of three years from the date of commitment
17or a period of commitment equal to the maximum term of
18imprisonment
provided by law for the most serious offense charged
19in the information, indictment, or misdemeanor complaint, or the
20maximum term of imprisonment provided by law for a violation
21of probation or mandatory supervision, whichever is shorter, a
22defendant who has not recovered mental competence shall be
23returned to the committing court. The court shall notify the
24community program director or a designee of the return and of
25any resulting court orders.
26(2) Whenever any defendant is returned to the court pursuant
27to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
28subdivision and it appears to the court that the defendant is gravely
29disabled, as defined in subparagraph (B) of paragraph (1) of
30subdivision (h) of Section 5008 of the Welfare and Institutions
31Code, the court shall order the conservatorship investigator of the
32county
of commitment of the defendant to initiate conservatorship
33proceedings for the defendant pursuant to Chapter 3 (commencing
34with Section 5350) of Part 1 of Division 5 of the Welfare and
35Institutions Code. Any hearings required in the conservatorship
36proceedings shall be held in the superior court in the county that
37ordered the commitment. The court shall transmit a copy of the
38order directing initiation of conservatorship proceedings to the
39community program director or a designee, the sheriff and the
40district attorney of the county in which criminal charges are
P20 1pending, and the defendant’s counsel of record. The court shall
2notify the community program director or a designee, the sheriff
3
and district attorney of the county in which criminal charges are
4pending, and the defendant’s counsel of record of the outcome of
5the conservatorship proceedings.
6(3) If a change in placement is proposed for a defendant who
7is committed pursuant to subparagraph (B) of paragraph (1) of
8subdivision (h) of Section 5008 of the Welfare and Institutions
9Code, the court shall provide notice and an opportunity to be heard
10with respect to the proposed placement of the defendant to the
11sheriff and the district attorney of the county in which the criminal
12charges or revocation proceedings are pending.
13(4) Where the defendant is confined in a treatment facility, a
14copy of any report to the committing court regarding the
15defendant’s progress toward recovery of mental competence shall
16be
provided by the committing court to the prosecutor and to the
17defense counsel.
18(d) With the exception of proceedings alleging a violation of
19mandatory supervision, the criminal action remains subject to
20dismissal pursuant to Section 1385. If the criminal action is
21dismissed, the court shall transmit a copy of the order of dismissal
22to the community program director or a designee. In a proceeding
23alleging a violation of mandatory supervision, if the person is not
24placed under a conservatorship as described in paragraph (2) of
25subdivision (c), or if a conservatorship is terminated, the court
26shall reinstate mandatory supervision and may modify the terms
27and conditions of supervision to include appropriate mental health
28treatment or refer the matter to a local mental health court, reentry
29court, or other collaborative justice court
available for improving
30the mental health of the defendant.
31(e) If the criminal action against the defendant is dismissed, the
32defendant shall be released from any commitment ordered under
33this section, but without prejudice to the initiation of any
34proceedings that may be appropriate under the
35Lanterman-Petris-Short Act (Part 1 (commencing with Section
365000) of Division 5 of the Welfare and Institutions Code).
37(f) As used in this chapter, “community program director” means
38the person, agency, or entity designated by the State Department
39of State Hospitals pursuant to Section 1605 of this code and Section
404360 of the Welfare and Institutions Code.
P21 1(g) For the purpose of this section, “secure treatment
facility”
2shall not include, except for state mental hospitals, state
3developmental centers, and correctional treatment facilities, any
4facility licensed pursuant to Chapter 2 (commencing with Section
51250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
63.2 (commencing with Section 1569) of, Division 2 of the Health
7and Safety Code, or any community board and care facility.
8(h) Nothing in this section shall preclude a defendant from filing
9a petition for habeas corpus to challenge the continuing validity
10of an order authorizing a treatment facility or outpatient program
11to involuntarily administer antipsychotic medication to a person
12being treated as incompetent to stand trial.
Section 1370.01 of the Penal Code is amended to read:
(a) (1) If the defendant is found mentally competent,
15the criminal process shall resume, the trial on the offense charged
16shall proceed, and judgment may be pronounced. If the defendant
17is found mentally incompetent, the trial, judgment, or hearing on
18the alleged violation shall be suspended until the person becomes
19mentally competent, and the court shall order that (A) in the
20meantime, the defendant be delivered by the sheriff to an available
21public or private treatment facility approved by the county mental
22health director that will promote the defendant’s speedy restoration
23to mental competence, or placed on outpatient status as specified
24in this section, and (B) upon the filing of a certificate of restoration
25to
competence, the defendant be returned to court in accordance
26with Section 1372. The court shall transmit a copy of its order to
27the county mental health director or his or her designee.
28(2) Prior to making the order directing that the defendant be
29confined in a treatment facility or placed on outpatient status, the
30court shall proceed as follows:
31(A) The court shall order the county mental health director or
32his or her designee to evaluate the defendant and to submit to the
33court within 15 judicial days of the order a written recommendation
34as to whether the defendant should be required to undergo
35outpatient treatment, or committed to a treatment facility. No
36person shall be admitted to a treatment facility or placed on
37outpatient status under this section without having been evaluated
38by
the county mental health director or his or her designee. No
39person shall be admitted to a state hospital under this section unless
40the county mental health director finds that there is no less
P22 1restrictive appropriate placement available and the county mental
2health director has a contract with the State Department of State
3Hospitals for these placements.
4(B) The court shall hear and determine whether the defendant,
5with advice of his or her counsel, consents to the administration
6of antipsychotic medication, and shall proceed as follows:
7(i) If the defendant, with advice of his or her counsel, consents,
8the court order of commitment shall include confirmation that
9antipsychotic medication may be given to the defendant as
10prescribed by a treating psychiatrist pursuant to the defendant’s
11consent.
The commitment order shall also indicate that, if the
12defendant withdraws consent for antipsychotic medication, after
13the treating psychiatrist complies with the provisions of
14subparagraph (C), the defendant shall be returned to court for a
15hearing in accordance with this subdivision regarding whether
16antipsychotic medication shall be administered involuntarily.
17(ii) If the defendant does not consent to the administration of
18medication, the court shall hear and determine whether any of the
19following is true:
20(I) The defendant lacks capacity to make decisions regarding
21antipsychotic medication, the defendant’s mental disorder requires
22medical treatment with antipsychotic medication, and, if the
23defendant’s mental disorder is not treated with antipsychotic
24medication, it is
probable that serious harm to the physical or
25mental health of the patient will result. Probability of serious harm
26to the physical or mental health of the defendant requires evidence
27that the defendant is presently suffering adverse effects to his or
28her physical or mental health, or the defendant has previously
29suffered these effects as a result of a mental disorder and his or
30her condition is substantially deteriorating. The fact that a
31defendant has a diagnosis of a mental disorder does not alone
32establish probability of serious harm to the physical or mental
33health of the defendant.
34(II) The defendant is a danger to others, in that the defendant
35has inflicted, attempted to inflict, or made a serious threat of
36inflicting substantial physical harm on another while in custody,
37or the defendant had inflicted, attempted to inflict, or made a
38serious
threat of inflicting substantial physical harm on another
39that resulted in his or her being taken into custody, and the
40defendant presents, as a result of mental disorder or mental defect,
P23 1a demonstrated danger of inflicting substantial physical harm on
2others. Demonstrated danger may be based on an assessment of
3the defendant’s present mental condition, including a consideration
4of past behavior of the defendant within six years prior to the time
5the defendant last attempted to inflict, inflicted, or threatened to
6inflict substantial physical harm on another, and other relevant
7evidence.
8(III) The people have charged the defendant with a serious crime
9against the person or property; involuntary administration of
10antipsychotic medication is substantially likely to render the
11defendant competent to stand trial; the medication is unlikely to
12have
side effects that interfere with the defendant’s ability to
13understand the nature of the criminal proceedings or to assist
14counsel in the conduct of a defense in a reasonable manner; less
15intrusive treatments are unlikely to have substantially the same
16results; and antipsychotic medication is in the patient’s best medical
17interest in light of his or her medical condition.
18(iii) If the court finds any of the conditions described in clause
19(ii) to be true, the court shall issue an order authorizing the
20
treatment facility to involuntarily administer antipsychotic
21medication to the defendant when and as prescribed by the
22defendant’s treating psychiatrist. The court shall not order
23involuntary administration of psychotropic medication under
24subclause (III) of clause (ii) unless the court has first found that
25the defendant does not meet the criteria for involuntary
26administration of psychotropic medication under subclause (I) of
27clause (ii) and does not meet the criteria under subclause (II) of
28clause (ii).
29(iv) In all cases, the treating hospital, facility, or program may
30administer medically appropriate antipsychotic medication
31prescribed by a psychiatrist in an emergency as described in
32subdivision (m) of Section 5008 of the Welfare and Institutions
33Code.
34(v) Any report made pursuant to subdivision (b) shall include
35a description of any antipsychotic medication administered to the
36defendant and its effects and side effects, including effects on the
37defendant’s appearance or behavior that would affect the
38defendant’s ability to understand the nature of the criminal
39proceedings or to assist counsel in the conduct of a defense in a
40reasonable manner. During the time the defendant is confined in
P24 1a state hospital or other treatment facility or placed on outpatient
2status, either the defendant or the people may request that the court
3review any order made pursuant to this subdivision. The defendant,
4to the same extent enjoyed by other patients in the state hospital
5or other treatment facility, shall have the right to contact the
6patients’ rights advocate regarding his or her rights under this
7section.
8(C) If the defendant consented to antipsychotic medication as
9described in clause (i) of subparagraph (B), but subsequently
10withdraws his or her consent, or, if involuntary antipsychotic
11medication was not ordered pursuant to clause (ii) of subparagraph
12(B), and the treating psychiatrist determines that antipsychotic
13medication has become medically necessary and appropriate, the
14treating psychiatrist shall make efforts to obtain informed consent
15from the defendant for antipsychotic medication. If informed
16consent is not obtained from the defendant, and the treating
17psychiatrist is of the opinion that the defendant lacks capacity to
18make decisions regarding antipsychotic medication as specified
19in subclause (I) of clause (ii) of subparagraph (B), or that the
20defendant is a danger to others as specified in subclause (II) of
21clause (ii) of subparagraph (B), the committing court shall be
22notified
of this, including an assessment of the current mental
23status of the defendant and the opinion of the treating psychiatrist
24that involuntary antipsychotic medication has become medically
25necessary and appropriate. The court shall provide copies of the
26report to the prosecuting attorney and to the attorney representing
27the defendant and shall set a hearing to determine whether
28involuntary antipsychotic medication should be ordered in the
29manner described in subparagraph (B).
30(3) When the court, after considering the placement
31recommendation of the county mental health director required in
32paragraph (2), orders that the defendant be confined in a public or
33private treatment facility, the court shall provide copies of the
34following documents which shall be taken with the defendant to
35the treatment facility where the defendant is to be
confined:
36(A) The commitment order, including a specification of the
37charges.
38(B) A computation or statement setting forth the maximum term
39of commitment in accordance with subdivision (c).
P25 1(C) A computation or statement setting forth the amount of
2credit for time served, if any, to be deducted from the maximum
3term of commitment.
4(D) State summary criminal history information.
5(E) Any arrest reports prepared by the police department or
6other law enforcement agency.
7(F) Any court-ordered psychiatric examination or evaluation
8reports.
9(G) The county mental health director’s placement
10recommendation report.
11(4) A person subject to commitment under this section may be
12placed on outpatient status under the supervision of the county
13mental health director or his or her designee by order of the court
14in accordance with the procedures contained in Title 15
15(commencing with Section 1600) except that where the term
16“community program director” appears the term “county mental
17health director” shall be substituted.
18(5) If the defendant is committed or transferred to a public or
19private treatment facility approved by the county mental health
20director, the court may, upon receiving the written recommendation
21of the county mental health director, transfer the
defendant to
22another public or private treatment facility approved by the county
23mental health director. In the event of dismissal of the criminal
24charges before the defendant recovers competence, the person
25shall be subject to the applicable provisions of Part 1 (commencing
26with Section 5000) of Division 5 of the Welfare and Institutions
27Code. Where either the defendant or the prosecutor chooses to
28contest the order of transfer, a petition may be filed in the court
29for a hearing, which shall be held if the court determines that
30sufficient grounds exist. At the hearing, the prosecuting attorney
31or the defendant may present evidence bearing on the order of
32transfer. The court shall use the same standards as are used in
33conducting probation revocation hearings pursuant to Section
341203.2.
35Prior to making an order for transfer under this section, the court
36shall
notify the defendant, the attorney of record for the defendant,
37the prosecuting attorney, and the county mental health director or
38his or her designee.
39(b) Within 90 days of a commitment made pursuant to
40subdivision (a), the medical director of the treatment facility to
P26 1which the defendant is confined shall make a written report to the
2court and the county mental health director or his or her designee,
3concerning the defendant’s progress toward recovery of mental
4competence. Where the defendant is on outpatient status, the
5outpatient treatment staff shall make a written report to the county
6mental health director concerning the defendant’s progress toward
7recovery of mental competence. Within 90 days of placement on
8outpatient status, the county mental health director shall report to
9the court on this matter. If the defendant has not recovered
mental
10competence, but the report discloses a substantial likelihood that
11the defendant will regain mental competence in the foreseeable
12future, the defendant shall remain in the treatment facility or on
13outpatient status. Thereafter, at six-month intervals or until the
14defendant becomes mentally competent, where the defendant is
15confined in a treatment facility, the medical director of the hospital
16or person in charge of the facility shall report in writing to the
17court and the county mental health director or a designee regarding
18the defendant’s progress toward recovery of mental competence.
19Where the defendant is on outpatient status, after the initial 90-day
20report, the outpatient treatment staff shall report to the county
21mental health director on the defendant’s progress toward recovery,
22and the county mental health director shall report to the court on
23this matter at six-month intervals. A
copy of these reports shall be
24provided to the prosecutor and defense counsel by the court. If the
25report indicates that there is no substantial likelihood that the
26defendant will regain mental competence in the foreseeable future,
27the committing court shall order the defendant to be returned to
28the court for proceedings pursuant to paragraph (2) of subdivision
29(c). The court shall transmit a copy of its order to the county mental
30health director or his or her designee.
31(c) (1) If, at the end of one year from the date of commitment
32or a period of commitment equal to the maximum term of
33imprisonment provided by law for the most serious offense charged
34in the misdemeanor complaint, whichever is shorter, the defendant
35has not recovered mental competence, the defendant shall be
36returned to the committing court. The court
shall notify the county
37mental health director or his or her designee of the return and of
38any resulting court orders.
39(2) Whenever any defendant is returned to the court pursuant
40to subdivision (b) or paragraph (1) of this subdivision and it appears
P27 1to the court that the defendant is gravely disabled, as defined in
2subparagraph (A) of paragraph (1) of subdivision (h) of Section
35008 of the Welfare and Institutions Code, the court shall order
4the conservatorship investigator of the county of commitment of
5the defendant to initiate conservatorship proceedings for the
6defendant pursuant to Chapter 3 (commencing with Section 5350)
7of Part 1 of Division 5 of the Welfare and Institutions Code. Any
8hearings required in the conservatorship proceedings shall be held
9in the superior court in the county that ordered the commitment.
10The court
shall transmit a copy of the order directing initiation of
11conservatorship proceedings to the county mental health director
12or his or her designee and shall notify the county mental health
13director or his or her designee of the outcome of the proceedings.
14(d) The criminal action remains subject to dismissal pursuant
15to Section 1385. If the criminal action is dismissed, the court shall
16transmit a copy of the order of dismissal to the county mental
17health director or his or her designee.
18(e) If the criminal charge against the defendant is dismissed,
19the defendant shall be released from any commitment ordered
20under this section, but without prejudice to the initiation of any
21proceedings which may be appropriate under Part 1 (commencing
22with Section 5000) of Division 5 of the Welfare and
Institutions
23Code.
Section 1370.02 is added to the Penal Code, to read:
(a) If the defendant is found mentally competent
26during a postrelease community supervision or parole revocation
27hearing, the revocation proceedings shall resume. The formal
28hearing on the revocation shall occur within a reasonable time
29after resumption of the proceedings, but in no event may the
30defendant be detained in custody for over 180 days from the date
31of arrest.
32(b) If the defendant is found mentally incompetent, thebegin delete court, begin insert
courtend insert
33based upon consideration of the information and recommendations
34contained in the expert reports required by Section 1369,end delete
35 shall have discretion to order any of the following:
36(1) (A) If the court determines that there is a reasonable
37likelihood that the defendant may be restored to competency and
38returned to court to face the revocation proceedings no later than
39180 days from the date of the arrest of the defendant, the court
40may order the defendant to undergo treatment as authorized by
P28 1Section 1370 or 1370.1 for restoring the defendant to competency,
2except that:
3(i) The initial written progress report due to the court pursuant
4to subdivision (b) of Section 1370 shall be provided to the court
5within 45 days and subsequent progress reports shall be provided
6to the court at two-month intervals.
7(ii) The initial written progress report due to the court under
8subdivision (b) of Section 1370.1 shall be provided to the court
9within 45 daysbegin insert of the commitmentend insert and subsequent progress reports
10shall be provided within 90 days.
11(B) If the defendant is restored to competency within 180 days
12of arrest, the defendant shall be returned to court under the
13procedures required by Section 1372.
14(C) If the defendant is not restored to competency within 180
15days of arrest, the defendant shall be returned to court and the court
16shall proceed under paragraph (2) or (3).
17(2) Dismiss the pending revocation matter and return the
18defendant
to supervision. If the matter is dismissed pursuant to
19this paragraph, the court may also:
20(A) Modify the terms and conditions of supervision to include
21appropriate mental health treatment.
22(B) Refer the matter to the public guardian of the county of
23commitment to initiate conservatorship proceedings.
24(3) Refer the matter to any local mental health court, reentry
25court, or other collaborative justice court available for improving
26the mental health of the defendant.
27(c) Notwithstanding any other law, if a person subject to parole
28pursuant to Section 3000.1 or paragraph (4) of subdivision (b) of
29Section 3000 is found mentally incompetent, the court shall order
30
the person to undergo treatment pursuant to Section 1370 for
31restoring the person to competency, except that if the person is not
32restored to competency within the maximum period of confinement
33and the court dismisses the revocation, the court shall return the
34person to parole supervision, refer the matter to the public guardian
35of the county of commitment to initiate conservatorship
36proceedings, or refer the person to other appropriate mental health
37treatment based upon any recommendations by the parole agent
38and mental health experts.
Section 1370.1 of the Penal Code is amended to read:
(a) (1) (A) If the defendant is found mentally
2competent, the criminal process shall resume, the trial on the
3offense charged or hearing on the alleged violation shall proceed,
4and judgment may be pronounced.
5(B) If the defendant is found mentally incompetent and is
6developmentally disabled, the trial or judgment shall be suspended
7until the defendant becomes mentally competent.
8(i) Except as provided in clause (ii) or (iii), the court shall
9consider a recommendation for placement, which recommendation
10shall be made to the court by the director of a regional center or
11designee. In
the meantime, the court shall order that the mentally
12incompetent defendant be delivered by the sheriff or other person
13designated by the court to a state hospital or developmental center
14for the care and treatment of the developmentally disabled or any
15other available residential facility approved by the director of a
16regional center for the developmentally disabled established under
17Division 4.5 (commencing with Section 4500) of the Welfare and
18Institutions Code as will promote the defendant’s speedy attainment
19of mental competence, or be placed on outpatient status pursuant
20to the provisions of Section 1370.4 and Title 15 (commencing with
21Section 1600).
22(ii) However, if the action against the defendant who has been
23found mentally incompetent is on a complaint charging a felony
24offense specified in Section 290, the prosecutor shall
determine
25whether the defendant previously has been found mentally
26incompetent to stand trial pursuant to this chapter on a charge of
27a Section 290 offense, or whether the defendant is currently the
28subject of a pending Section 1368 proceeding arising out of a
29charge of a Section 290 offense. If either determination is made,
30the prosecutor shall so notify the court and defendant in writing.
31After this notification, and opportunity for hearing, the court shall
32order that the defendant be delivered by the sheriff to a state
33hospital or other secure treatment facility for the care and treatment
34of the developmentally disabled unless the court makes specific
35findings on the record that an alternative placement would provide
36more appropriate treatment for the defendant and would not pose
37a danger to the health and safety of others.
38(iii) If the action against the defendant who has been found
39mentally incompetent is on a complaint charging a felony offense
40specified in Section 290 and the defendant has been denied bail
P30 1pursuant to subdivision (b) of Section 12 of Article I of the
2California Constitution because the court has found, based upon
3clear and convincing evidence, a substantial likelihood that the
4person’s release would result in great bodily harm to others, the
5court shall order that the defendant be delivered by the sheriff to
6a state hospital for the care and treatment of the developmentally
7disabled unless the court makes specific findings on the record
8that an alternative placement would provide more appropriate
9treatment for the defendant and would not pose a danger to the
10health and safety of others.
11(iv) The clerk of the court shall notify the
Department of Justice
12in writing of any finding of mental incompetence with respect to
13a defendant who is subject to clause (ii) or (iii) for inclusion in his
14or her state summary criminal history information.
15(C) Upon becoming competent, the court shall order that the
16defendant be returned to the committing court pursuant to the
17procedures set forth in paragraph (2) of subdivision (a) of Section
181372 or by another person designated by the court. The court shall
19further determine conditions under which the person may be absent
20from the placement for medical treatment, social visits, and other
21similar activities. Required levels of supervision and security for
22these activities shall be specified.
23(D) The court shall transmit a copy of its order to the regional
24center director or
designee and to the Director of Developmental
25Services.
26(E) A defendant charged with a violent felony may not be placed
27in a facility or delivered to a state hospital, developmental center,
28or residential facility pursuant to this subdivision unless the facility,
29state hospital, developmental center, or residential facility has a
30secured perimeter or a locked and controlled treatment facility,
31and the judge determines that the public safety will be protected.
32(F) For purposes of this paragraph, “violent felony” means an
33offense specified in subdivision (c) of Section 667.5.
34(G) A defendant charged with a violent felony may be placed
35on outpatient status, as specified in Section 1370.4 or 1600, only
36if the court finds
that the placement will not pose a danger to the
37health or safety of others.
38(H) As used in this section, “developmental disability” means
39a disability that originates before an individual attains 18 years of
40age, continues, or can be expected to continue, indefinitely and
P31 1constitutes a substantial handicap for the individual, and shall not
2include other handicapping conditions that are solely physical in
3nature. As defined by the Director of Developmental Services, in
4consultation with the Superintendent of Public Instruction, this
5term shall include intellectual disability, cerebral palsy, epilepsy,
6and autism. This term shall also include handicapping conditions
7found to be closely related to intellectual disability or to require
8treatment similar to that required for individuals with an intellectual
9disability, but shall not include other
handicapping conditions that
10are solely physical in nature.
11(2) Prior to making the order directing that the defendant be
12confined in a state hospital, developmental center, or other
13residential facility, or be placed on outpatient status, the court shall
14order the regional center director or designee to evaluate the
15defendant and to submit to the court within 15 judicial days of the
16order a written recommendation as to whether the defendant should
17be committed to a state hospital or developmental center or to any
18other available residential facility approved by the regional center
19director. A person shall not be admitted to a state hospital,
20
developmental center, or other residential facility or accepted for
21outpatient status under Section 1370.4 without having been
22evaluated by the regional center director or designee.
23(3) When the court orders that the defendant be confined in a
24state hospital or other secure treatment facility pursuant to clause
25(ii) or (iii) of subparagraph (B) of paragraph (1), the court shall
26provide copies of the following documents which shall be taken
27with the defendant to the state hospital or other secure treatment
28facility where the defendant is to be confined:
29(A) State summary criminal history information.
30(B) Any arrest reports prepared by the police department or
31other law enforcement agency.
32(C) Records of a finding of mental incompetence pursuant to
33this chapter arising out of a complaint charging a felony offense
34specified in Section 290 or a pending Section 1368 proceeding
35arising out of a charge of a Section 290 offense.
36(4) When the defendant is committed to a residential facility
37pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
38court makes the findings specified in clause (ii) or (iii) of
39subparagraph (B) of paragraph (1) to assign the defendant to a
40facility other than a state hospital or other secure treatment facility,
P32 1the court shall order that notice be given to the appropriate law
2enforcement agency or agencies having local jurisdiction at the
3site of the placement facility of a finding of mental incompetence
4pursuant to this chapter
arising out of a charge of a Section 290
5offense.
6(5) (A) If the defendant is committed or transferred to a state
7hospital or developmental center pursuant to this section, the court
8may, upon receiving the written recommendation of the executive
9director of the state hospital or developmental center and the
10regional center director that the defendant be transferred to a
11residential facility approved by the regional center director, order
12the defendant transferred to that facility. If the defendant is
13committed or transferred to a residential facility approved by the
14regional center director, the court may, upon receiving the written
15recommendation of the regional center director, transfer the
16defendant to a state hospital or developmental center or to another
17residential facility approved by the regional center
director.
18In the event of dismissal of the criminal action or revocation
19proceedings before the defendant recovers competence, the person
20shall be subject to the applicable provisions of the
21Lanterman-Petris-Short Act (Part 1 (commencing with Section
225000) of Division 5 of the Welfare and Institutions Code) or to
23commitment or detention pursuant to a petition filed pursuant to
24Section 6502 of the Welfare and Institutions Code.
25The defendant or prosecuting attorney may contest either kind
26of order of transfer by filing a petition with the court for a hearing,
27which shall be held if the court determines that sufficient grounds
28exist. At the hearing, the prosecuting attorney or the defendant
29may present evidence bearing on the order of transfer. The court
30shall use the same standards as used in conducting probation
31revocation
hearings pursuant to Section 1203.2.
32Prior to making an order for transfer under this section, the court
33shall notify the defendant, the attorney of record for the defendant,
34the prosecuting attorney, and the regional center director or
35designee.
36(B) If the defendant is committed to a state hospital or secure
37treatment facility pursuant to clause (ii) or (iii) of subparagraph
38(B) of paragraph (1) and is subsequently transferred to another
39facility, copies of the documents specified in paragraph (3) shall
40be taken with the defendant to the new facility. The transferring
P33 1facility shall also notify the appropriate law enforcement agency
2or agencies having local jurisdiction at the site of the new facility
3that the defendant is a person subject to clause (ii) or (iii) of
4subparagraph (B) of paragraph
(1).
5(b) (1) Within 90 days of admission of a person committed
6pursuant to subdivision (a), the executive director or designee of
7the state hospital, developmental center, or other facility to which
8the defendant is committed, or the outpatient supervisor where the
9defendant is placed on outpatient status, shall make a written report
10to the committing court and the regional center director or a
11designee concerning the defendant’s progress toward becoming
12mentally competent. If the defendant has not become mentally
13competent, but the report discloses a substantial likelihood the
14defendant will become mentally competent within the next 90
15days, the court may order that the defendant shall remain in the
16state hospital, developmental center, or other facility or on
17outpatient status for that period of time. Within 150 days
of an
18admission made pursuant to subdivision (a) or if the defendant
19becomes mentally competent, the executive director or designee
20of the hospital or developmental center or person in charge of the
21facility or the outpatient supervisor shall report to the court and
22the regional center director or his or her designee regarding the
23defendant’s progress toward becoming mentally competent. The
24court shall provide to the prosecutor and defense counsel copies
25of all reports under this section. If the report indicates that there
26is no substantial likelihood that the defendant has become mentally
27competent, the committing court shall order the defendant to be
28
returned to the court for proceedings pursuant to paragraph (2) of
29subdivision (c). The court shall transmit a copy of its order to the
30regional center director or designee and to the executive director
31of the developmental center.
32(2) A defendant who has been committed or has been on
33outpatient status for 18 months, and is still hospitalized or on
34outpatient status, shall be returned to the committing court where
35a hearing shall be held pursuant to the procedures set forth in
36Section 1369. The court shall transmit a copy of its order to the
37regional center director or designee and the executive director of
38the developmental center.
39(3) If it is determined by the court that no treatment for the
40defendant’s mental impairment is being conducted, the defendant
P34 1shall
be returned to the committing court. A copy of this order
2shall be sent to the regional center director or designee and to the
3executive director of the developmental center.
4(4) At each review by the court specified in this subdivision,
5the court shall determine if the security level of housing and
6treatment is appropriate and may make an order in accordance
7with its determination.
8(c) (1) (A) At the end of three years from the date of
9commitment or a period of commitment equal to the maximum
10term of imprisonment provided by law for the most serious offense
11charged in the information, indictment, or misdemeanor complaint,
12or the maximum term of imprisonment provided by law for a
13violation of probation or mandatory supervision, whichever is
14shorter,
a defendant who has not become mentally competent shall
15be returned to the committing court.
16(B) The court shall notify the regional center director or designee
17and the executive director of the developmental center of that
18return and of any resulting court orders.
19(2) (A) Except as provided in subparagraph (B), in the event
20of dismissal of the criminal charges before the defendant becomes
21mentally competent, the defendant shall be subject to the applicable
22provisions of the Lanterman-Petris-Short Act (Part 1 (commencing
23with Section 5000) of Division 5 of the Welfare and Institutions
24Code), or to commitment and detention pursuant to a petition filed
25pursuant to Section 6502 of the Welfare and Institutions Code. If
26it is found that the person is not subject to
commitment or detention
27pursuant to the applicable provision of the Lanterman-Petris-Short
28Act (Part 1 (commencing with Section 5000) of Division 5 of the
29Welfare and Institutions Code) or to commitment or detention
30pursuant to a petition filed pursuant to Section 6502 of the Welfare
31and Institutions Code, the individual shall not be subject to further
32confinement pursuant to this article and the criminal action remains
33subject to dismissal pursuant to Section 1385. The court shall notify
34the regional center director and the executive director of the
35developmental center of any dismissal.
36(B) In revocation proceedings alleging a violation of mandatory
37supervision in which the defendant remains incompetent upon
38return to court under subparagraph (A), the defendant shall be
39subject to the applicable provisions of the Lanterman-Petris-Short
40Act
(Part 1 (commencing with Section 5000) of Division 5 of the
P35 1Welfare and Institutions Code), or to commitment and detention
2pursuant to a petition filed pursuant to Section 6502 of the Welfare
3and Institutions Code. If it is found that the person is not subject
4to commitment or detention pursuant to the applicable provision
5of thebegin delete Lanternman-Petris-Shortend deletebegin insert Lanterman-Petris-Shortend insert Act (Part
61 (commencing with Section 5000) of Division 5 of the Welfare
7and Institutions Code) or to commitment or detention pursuant to
8a petition filed pursuant to Section 6502 of the Welfare and
9Institutions Code, the court shall reinstate mandatory supervision
10and modify the terms and conditions of supervision to include
11appropriate mental health treatment
or refer the matter to a local
12mental health court, reentry court, or other collaborative justice
13court available for improving the mental health of the defendant.
14Actions alleging a violation of mandatory supervision shall not be
15subject to dismissal under Section 1385.
16(d) Except as provided in subparagraph (B) of paragraph (2) of
17subdivision (c), the criminal action remains subject to dismissal
18pursuant to Section 1385. If at any time prior to the maximum
19period of time allowed for proceedings under this article, the
20regional center director concludes that the behavior of the defendant
21related to the defendant’s criminal offense has been eliminated
22during time spent in court-ordered programs, the court may, upon
23recommendation of the regional center director, dismiss the
24criminal charges. The court shall transmit a copy of any order of
25dismissal
to the regional center director and to the executive
26director of the developmental center.
27(e) For the purpose of this section, “secure treatment facility”
28shall not include, except for state mental hospitals, state
29developmental centers, and correctional treatment facilities, a
30facility licensed pursuant to Chapter 2 (commencing with Section
311250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
323.2 (commencing with Section 1569) of, Division 2 of the Health
33and Safety Code, or a community board and care facility.
Section 1370.5 of the Penal Code is amended to read:
(a) A person committed to a state hospital or other
36public or private mental health facility pursuant to the provisions
37of Section 1370, 1370.01, 1370.02, or 1370.1, who escapes from
38or who escapes while being conveyed to or from a state hospital
39or facility, is punishable by imprisonment in a county jail not to
40exceed one year or in the state prison for a determinate term of
P36 1one year and one day. The term of imprisonment imposed pursuant
2to this section shall be served consecutively to any other sentence
3or commitment.
4(b) The medical director or person in charge of a state hospital
5or other public or
private mental health facility to which a person
6has been committed pursuant to the provisions of Section 1370,
71370.01, 1370.02, or 1370.1 shall promptly notify the chief of
8police of the city in which the hospital or facility is located, or the
9sheriff of the county if the hospital or facility is located in an
10unincorporated area, of the escape of the person, and shall request
11the assistance of the chief of police or sheriff in apprehending the
12person, and shall within 48 hours of the escape of the person orally
13notify the court that made the commitment, the prosecutor in the
14case, and the Department of Justice of the escape.
Section 1371 of the Penal Code is amended to read:
The commitment of the defendant, as described in
17Section 1370, 1370.1,begin insert 1370.01,end insert or 1370.02, exonerates his or her
18bail, or entitles a person, authorized to receive the property of the
19defendant, to a return of any money he or she may have deposited
20instead of bail, or gives, to the person or persons found by the court
21to have deposited any money instead of bail on behalf of the
22defendant, a right to the return of that money.
Section 1373 of the Penal Code is amended to read:
The expense of sending the defendant to the state hospital
25or other facility, and of bringing him or her back, are chargeable
26to the county in which the indictment was found, information was
27filed, or revocation proceeding was held; but the county may
28recover the expense from the estate of the defendant, if he or she
29has any, or from a relative, bound to provide for and maintain him
30or her.
Section 1375.5 of the Penal Code is amended to read:
(a) Time spent by a defendant in a hospital or other
33facility as a result of a commitment therein as a mentally
34incompetent pursuant to this chapter shall be credited on the term
35of imprisonment, if any, for which the defendant is sentenced in
36the criminal case which was suspended pursuant to Sectionbegin delete 1370 begin insert 1370, 1370.1, or 1370.01.end insert
37or 1370.1.end delete
38(b) Time spent by an offender in a hospital or other facility as
39a result of a commitment as a mentally incompetent pursuant to
P37 1Section
1370.02 shall be credited toward any period of revocation
2or remaining term of supervision that was suspended.
3 (c) As used in this section, “time spent in a hospital or other
4facility” includes days a defendant is treated as an outpatient
5pursuant to Title 15 (commencing with Section 1600) of Part 2.
If the Commission on State Mandates determines
7that this act contains costs mandated by the state, reimbursement
8to local agencies and school districts for those costs shall be made
9pursuant to Part 7 (commencing with Section 17500) of Division
104 of Title 2 of the Government Code.
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96