Amended in Assembly August 19, 2014

Amended in Assembly June 23, 2014

Amended in Assembly June 9, 2014

Amended in Senate May 7, 2014

Senate BillNo. 1412


Introduced by Senator Nielsen

February 21, 2014


An act to amend Sections 1367, 1368, 1368.1, 1369, 1369.1, 1370, 1370.01, 1370.1, 1370.5, 1371, 1373, and 1375.5 of, to add Section 1370.02 to, and to repeal Section 1367.1 of, the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

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.begin delete 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.end delete If a defendant is found mentally incompetent during postrelease community supervision or parole revocation hearings, the bill wouldbegin delete allowend deletebegin insert requireend insert the court tobegin delete order the defendant to undergo treatment,end delete dismiss the pending revocation matter and return the defendant to supervision, in which case the bill would allow thebegin delete courtend deletebegin insert court, using the least restrictive option that will meet the mental health needs of the defendant,end insert to modify the terms and conditions of supervisionbegin delete or refer the matter to the public guardian of the county to initiate conservatorship proceedings, orend deletebegin insert end insertbegin insertto include appropriate mental health treatment,end insert refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of thebegin delete defendant.end deletebegin insert defendant, or, if there are no other reasonable alternatives to the establishment of a conservatorship to meet the mental health needs of the defendant, end insertbegin insertrefer the matter to the public guardian of the county of commitment to initiate conservatorship proceedings, as specified.end insert 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.

begin insert

If a conservatorship is established for a defendant or parolee pursuant to the above-described provisions, the bill would prohibit the county or the Department of Corrections and Rehabilitation from compassionately releasing the defendant or parolee or otherwise causing the termination of his or her supervision or parole based on the establishment of that conservatorship.

end insert

(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.

begin insert

(3) This bill would incorporate additional changes to Section 1370 of the Penal Code, proposed by AB 2186 and AB 2625, that would become operative only if this bill and either or both of those bills are chaptered and become effective January 1, 2015, and this bill is chaptered last.

end insert
begin delete

(3)

end delete

begin insert(end insertbegin insert4)end insert 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:

P3    1

SECTION 1.  

Section 1367 of the Penal Code is amended to
2read:

3

1367.  

(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 probation for a
13felony or mandatory supervision and is incompetent as a result of
14a mental disorder. Section 1370.01 shall apply to a person who is
P4    1charged with a misdemeanor or misdemeanors only, or a violation
2of formal or informal probation for a misdemeanor, and the judge
3finds reason to believe that the defendant is mentally disordered,
4and may, as a result of the mental disorder, be incompetent to stand
5trial. Section 1370.1 shall apply to a person who is incompetent
6as a result of a developmental disability and shall apply to a person
7who is incompetent as a result of a mental disorder, but is also
8developmentally disabled. Section 1370.02 shall apply to a person
9alleged to have violated the terms of his or her postrelease
10community supervision or parole.

11

SEC. 2.  

Section 1367.1 of the Penal Code is repealed.

12

SEC. 3.  

Section 1368 of the Penal Code is amended to read:

13

1368.  

(a) If, during the pendency of an action and prior to
14judgment, or during revocation proceedings for a violation of
15probation, mandatory supervision, postrelease community
16supervision, or parole, a doubt arises in the mind of the judge as
17to the mental competence of the defendant, he or she shall state
18that doubt in the record and inquire of the attorney for the defendant
19whether, in the opinion of the attorney, the defendant is mentally
20competent. If the defendant is not represented by counsel, the court
21shall appoint counsel. At the request of the defendant or his or her
22counsel or upon its own motion, the court shall recess the
23proceedings for as long as may be reasonably necessary to permit
24counsel to confer with the defendant and to form an opinion as to
25the mental competence of the defendant at that point in time.

26(b) If counsel informs the court that he or she believes the
27defendant is or may be mentally incompetent, the court shall order
28that the question of the defendant’s mental competence is to be
29determined in a hearing which is held pursuant to Sections 1368.1
30and 1369. If counsel informs the court that he or she believes the
31defendant is mentally competent, the court may nevertheless order
32a hearing. Any hearing shall be held in the superior court.

33(c) Except as provided in Section 1368.1, when an order for a
34hearing into the present mental competence of the defendant has
35been issued, all proceedings in the criminal prosecution shall be
36suspended until the question of the present mental competence of
37the defendant has been determined.

38If a jury has been impaneled and sworn to try the defendant, the
39jury shall be discharged only if it appears to the court that undue
40hardship to the jurors would result if the jury is retained on call.

P5    1If the defendant is declared mentally incompetent, the jury shall
2be discharged.

3

SEC. 4.  

Section 1368.1 of the Penal Code is amended to read:

4

1368.1.  

(a) If the action is on a complaint charging a felony,
5proceedings to determine mental competence shall be held prior
6to the filing of an information unless the counsel for the defendant
7requests a preliminary examination under the provisions of Section
8859b. At such preliminary examination, counsel for the defendant
9may (1) demur, (2) move to dismiss the complaint on the ground
10that there is not reasonable cause to believe that a felony has been
11committed and that the defendant is guilty thereof, or (3) make a
12motion under Section 1538.5.

13(b) If the action is on a complaint charging a misdemeanor,
14counsel for the defendant may (1) demur, (2) move to dismiss the
15complaint on the ground that there is not reasonable cause to
16 believe that a public offense has been committed and that the
17defendant is guilty thereof, or (3) make a motion under Section
181538.5.

19(c) If the proceeding involves an alleged violation of probation,
20mandatory supervision, postrelease community supervision, or
21parole, counsel for the defendant may move to reinstate supervision
22on the ground that there is not probable cause to believe that the
23defendant violated the terms of his or her supervision.

24(d) In ruling upon any demurrer or motion described in
25subdivision (a), (b), or (c), the court may hear any matter which
26is capable of fair determination without the personal participation
27of the defendant.

28(e) A demurrer or motion described in subdivision (a), (b), or
29(c) shall be made in the court having jurisdiction over the
30complaint. The defendant shall not be certified until the demurrer
31or motion has been decided.

32

SEC. 5.  

Section 1369 of the Penal Code is amended to read:

33

1369.  

Except as stated in subdivision (g), a trial by court or
34jury of the question of mental competence shall proceed in the
35following order:

36(a) The court shall appoint a psychiatrist or licensed
37psychologist, and any other expert the court may deem appropriate,
38to examine the defendant. In any case where the defendant or the
39defendant’s counsel informs the court that the defendant is not
40seeking a finding of mental incompetence, the court shall appoint
P6    1two psychiatrists, licensed psychologists, or a combination thereof.
2One of the psychiatrists or licensed psychologists may be named
3by the defense and one may be named by the prosecution. The
4examining psychiatrists or licensed psychologists shall evaluate
5the nature of the defendant’s mental disorder, if any, the
6defendant’s ability or inability to understand the nature of the
7criminal proceedings or assist counsel in the conduct of a defense
8in a rational manner as a result of a mental disorder and, if within
9the scope of their licenses and appropriate to their opinions,
10whether or not treatment with antipsychotic medication is medically
11appropriate for the defendant and whether antipsychotic medication
12is likely to restore the defendant to mental competence. If an
13examining psychologist is of the opinion that antipsychotic
14medication may be medically appropriate for the defendant and
15that the defendant should be evaluated by a psychiatrist to
16determine if antipsychotic medication is medically appropriate,
17the psychologist shall inform the court of this opinion and his or
18her recommendation as to whether a psychiatrist should examine
19the defendant. The examining psychiatrists or licensed
20psychologists shall also address the issues of whether the defendant
21has capacity to make decisions regarding antipsychotic medication
22and whether the defendant is a danger to self or others. If the
23defendant is examined by a psychiatrist and the psychiatrist forms
24an opinion as to whether or not treatment with antipsychotic
25medication is medically appropriate, the psychiatrist shall inform
26the court of his or her opinions as to the likely or potential side
27effects of the medication, the expected efficacy of the medication,
28possible alternative treatments, and whether it is medically
29appropriate to administer antipsychotic medication in the county
30jail. If it is suspected the defendant is developmentally disabled,
31the court shall appoint the director of the regional center for the
32developmentally disabled established under Division 4.5
33(commencing with Section 4500) of the Welfare and Institutions
34Code, or the designee of the director, to examine the defendant.
35The court may order the developmentally disabled defendant to
36be confined for examination in a residential facility or state
37hospital.

38The regional center director shall recommend to the court a
39suitable residential facility or state hospital. Prior to issuing an
40order pursuant to this section, the court shall consider the
P7    1recommendation of the regional center director. While the person
2is confined pursuant to order of the court under this section, he or
3she shall be provided with necessary care and treatment.

4(b) (1) The counsel for the defendant shall offer evidence in
5support of the allegation of mental incompetence.

6(2) If the defense declines to offer any evidence in support of
7the allegation of mental incompetence, the prosecution may do so.

8(c) The prosecution shall present its case regarding the issue of
9the defendant’s present mental competence.

10(d) Each party may offer rebutting testimony, unless the court,
11for good reason in furtherance of justice, also permits other
12evidence in support of the original contention.

13(e) When the evidence is concluded, unless the case is submitted
14without final argument, the prosecution shall make its final
15argument and the defense shall conclude with its final argument
16to the court or jury.

17(f) In a jury trial, the court shall charge the jury, instructing
18them on all matters of law necessary for the rendering of a verdict.
19It shall be presumed that the defendant is mentally competent
20unless it is proved by a preponderance of the evidence that the
21defendant is mentally incompetent. The verdict of the jury shall
22be unanimous.

23(g) Only a court trial is required to determine competency in
24any proceeding for a violation of probation, mandatory supervision,
25postrelease community supervision, or parole.

26

SEC. 6.  

Section 1369.1 of the Penal Code is amended to read:

27

1369.1.  

(a) As used in this chapter, “treatment facility”
28includes a county jail. Upon the concurrence of the county board
29of supervisors, the county mental health director, and the county
30sheriff, the jail may be designated to provide medically approved
31medication to defendants found to be mentally incompetent and
32unable to provide informed consent due to a mental disorder,
33pursuant to this chapter. In the case of Madera, Napa, and Santa
34Clara Counties, the concurrence shall be with the board of
35supervisors, the county mental health director, and the county
36sheriff or the chief of corrections. The provisions of Sections 1370,
371370.01, and 1370.02 shall apply to antipsychotic medications
38provided in a county jail, provided, however, that the maximum
39period of time a defendant may be treated in a treatment facility
40pursuant to this section shall not exceed six months.

P8    1(b) This section does not abrogate or limit any law enacted to
2ensure the due process rights set forth in Sell v. United States
3(2003) 539 U.S. 166.

4(c) This section shall remain in effect only until January 1, 2016,
5and as of that date is repealed, unless a later enacted statute, that
6is enacted before January 1, 2016, deletes or extends that date.

begin delete
7

SEC. 7.  

Section 1370 of the Penal Code is amended to read:

8

1370.  

(a) (1) (A) If the defendant is found mentally
9competent, the criminal process shall resume, the trial on the
10offense charged or hearing on the alleged violation shall proceed,
11and judgment may be pronounced.

12(B) If the defendant is found mentally incompetent, the trial,
13the hearing on the alleged violation, or the judgment shall be
14suspended until the person becomes mentally competent.

15(i) In the meantime, the court shall order that the mentally
16incompetent defendant be delivered by the sheriff to a state hospital
17for the care and treatment of the mentally disordered, or to any
18other available public or private treatment facility, including a
19local county jail treatment facility, approved by the community
20program director that will promote the defendant’s speedy
21restoration to mental competence, or placed on outpatient status
22as specified in Section 1600.

23(ii) However, if the action against the defendant who has been
24found mentally incompetent is on a complaint charging a felony
25offense specified in Section 290, the prosecutor shall determine
26whether the defendant previously has been found mentally
27incompetent to stand trial pursuant to this chapter on a charge of
28a Section 290 offense, or whether the defendant is currently the
29subject of a pending Section 1368 proceeding arising out of a
30charge of a Section 290 offense. If either determination is made,
31the prosecutor shall so notify the court and defendant in writing.
32After this notification, and opportunity for hearing, the court shall
33order that the defendant be delivered by the sheriff to a state
34hospital or other secure treatment facility for the care and treatment
35of the mentally disordered unless the court makes specific findings
36on the record that an alternative placement would provide more
37appropriate treatment for the defendant and would not pose a
38danger to the health and safety of others.

39(iii) If the action against the defendant who has been found
40mentally incompetent is on a complaint charging a felony offense
P9    1specified in Section 290 and the defendant has been denied bail
2pursuant to subdivision (b) of Section 12 of Article I of the
3California Constitution because the court has found, based upon
4clear and convincing evidence, a substantial likelihood that the
5person’s release would result in great bodily harm to others, the
6court shall order that the defendant be delivered by the sheriff to
7a state hospital for the care and treatment of the mentally disordered
8unless the court makes specific findings on the record that an
9alternative placement would provide more appropriate treatment
10for the defendant and would not pose a danger to the health and
11safety of others.

12(iv) The clerk of the court shall notify the Department of Justice
13in writing of any finding of mental incompetence with respect to
14a defendant who is subject to clause (ii) or (iii) for inclusion in his
15or her state summary criminal history information.

16(C) Upon the filing of a certificate of restoration to competence,
17the court shall order that the defendant be returned to court in
18accordance with Section 1372. The court shall transmit a copy of
19its order to the community program director or a designee.

20(D) A defendant charged with a violent felony may not be
21delivered to a state hospital or treatment facility pursuant to this
22subdivision unless the state hospital or treatment facility has a
23secured perimeter or a locked and controlled treatment facility,
24and the judge determines that the public safety will be protected.

25(E) For purposes of this paragraph, “violent felony” means an
26offense specified in subdivision (c) of Section 667.5.

27(F) A defendant charged with a violent felony may be placed
28on outpatient status, as specified in Section 1600, only if the court
29finds that the placement will not pose a danger to the health or
30safety of others. If the court places a defendant charged with a
31violent felony on outpatient status, as specified in Section 1600,
32the court must serve copies of the placement order on defense
33counsel, the sheriff in the county where the defendant will be
34placed and the district attorney for the county in which the violent
35felony charges are pending against the defendant.

36(2) Prior to making the order directing that the defendant be
37confined in a state hospital or other treatment facility or placed on
38outpatient status, the court shall proceed as follows:

39(A) The court shall order the community program director or a
40designee to evaluate the defendant and to submit to the court within
P10   115 judicial days of the order a written recommendation as to
2whether the defendant should be required to undergo outpatient
3treatment, or committed to a state hospital or to any other treatment
4facility. No person shall be admitted to a state hospital or other
5treatment facility or placed on outpatient status under this section
6without having been evaluated by the community program director
7or a designee. The community program director or designee shall
8evaluate the appropriate placement for the defendant between a
9state hospital or a local county jail treatment facility based upon
10guidelines provided by the State Department of State Hospitals.
11If a local county jail treatment facility is selected, the State
12Department of State Hospitals shall provide treatment at the county
13jail treatment facility and reimburse the county jail treatment
14facility for the reasonable costs of the bed during the treatment.
15The six-month limitation in Section 1369.1 shall not apply to
16individuals deemed incompetent to stand trial who are being treated
17to restore competency within a county jail treatment facility
18pursuant to this section.

19(B) The court shall hear and determine whether the defendant
20lacks capacity to make decisions regarding the administration of
21antipsychotic medication, and shall proceed as follows:

22(i) The court shall hear and determine whether any of the
23following is true:

24(I) The defendant lacks capacity to make decisions regarding
25antipsychotic medication, the defendant’s mental disorder requires
26medical treatment with antipsychotic medication, and, if the
27defendant’s mental disorder is not treated with antipsychotic
28medication, it is probable that serious harm to the physical or
29mental health of the patient will result. Probability of serious harm
30to the physical or mental health of the defendant requires evidence
31that the defendant is presently suffering adverse effects to his or
32her physical or mental health, or the defendant has previously
33suffered these effects as a result of a mental disorder and his or
34her condition is substantially deteriorating. The fact that a
35defendant has a diagnosis of a mental disorder does not alone
36establish probability of serious harm to the physical or mental
37health of the defendant.

38(II) The defendant is a danger to others, in that the defendant
39has inflicted, attempted to inflict, or made a serious threat of
40inflicting substantial physical harm on another while in custody,
P11   1or the defendant had inflicted, attempted to inflict, or made a
2serious threat of inflicting substantial physical harm on another
3that resulted in his or her being taken into custody, and the
4defendant presents, as a result of mental disorder or mental defect,
5a demonstrated danger of inflicting substantial physical harm on
6others. Demonstrated danger may be based on an assessment of
7the defendant’s present mental condition, including a consideration
8of past behavior of the defendant within six years prior to the time
9the defendant last attempted to inflict, inflicted, or threatened to
10inflict substantial physical harm on another, and other relevant
11evidence.

12(III) The people have charged the defendant with a serious crime
13against the person or property, involuntary administration of
14antipsychotic medication is substantially likely to render the
15defendant competent to stand trial, the medication is unlikely to
16have side effects that interfere with the defendant’s ability to
17understand the nature of the criminal proceedings or to assist
18counsel in the conduct of a defense in a reasonable manner, less
19intrusive treatments are unlikely to have substantially the same
20results, and antipsychotic medication is in the patient’s best medical
21interest in light of his or her medical condition.

22(ii) If the court finds any of the conditions described in clause
23(i) to be true, the court shall issue an order authorizing the treatment
24facility to involuntarily administer antipsychotic medication to the
25defendant when and as prescribed by the defendant’s treating
26psychiatrist. The court shall not order involuntary administration
27of psychotropic medication under subclause (III) of clause (i)
28unless the court has first found that the defendant does not meet
29the criteria for involuntary administration of psychotropic
30medication under subclause (I) of clause (i) and does not meet the
31criteria under subclause (II) of clause (i).

32(iii) In all cases, the treating hospital, facility, or program may
33administer medically appropriate antipsychotic medication
34prescribed by a psychiatrist in an emergency as described in
35subdivision (m) of Section 5008 of the Welfare and Institutions
36Code.

37(iv) If the court has determined that the defendant has the
38capacity to make decisions regarding antipsychotic medication,
39and if the defendant, with advice of his or her counsel, consents,
40the court order of commitment shall include confirmation that
P12   1antipsychotic medication may be given to the defendant as
2prescribed by a treating psychiatrist pursuant to the defendant’s
3consent. The commitment order shall also indicate that, if the
4defendant withdraws consent for antipsychotic medication, after
5the treating psychiatrist complies with the provisions of
6subparagraph (C), the defendant shall be returned to court for a
7hearing in accordance with subparagraphs (C) and (D) regarding
8whether antipsychotic medication shall be administered
9involuntarily.

10(v) If the court has determined that the defendant has the
11capacity to make decisions regarding antipsychotic medication
12and if the defendant, with advice from his or her counsel, does not
13consent, the court order for commitment shall indicate that, after
14the treating psychiatrist complies with the provisions of
15subparagraph (C), the defendant shall be returned to court for a
16hearing in accordance with subparagraphs (C) and (D) regarding
17whether antipsychotic medication shall be administered
18involuntarily.

19(vi) Any report made pursuant to paragraph (1) of subdivision
20(b) shall include a description of any antipsychotic medication
21administered to the defendant and its effects and side effects,
22including effects on the defendant’s appearance or behavior that
23would affect the defendant’s ability to understand the nature of
24the criminal proceedings or to assist counsel in the conduct of a
25defense in a reasonable manner. During the time the defendant is
26confined in a state hospital or other treatment facility or placed on
27outpatient status, either the defendant or the people may request
28that the court review any order made pursuant to this subdivision.
29The defendant, to the same extent enjoyed by other patients in the
30state hospital or other treatment facility, shall have the right to
31contact the patients’ rights advocate regarding his or her rights
32under this section.

33(C) If the defendant consented to antipsychotic medication as
34described in clause (iv) of subparagraph (B), but subsequently
35withdraws his or her consent, or, if involuntary antipsychotic
36medication was not ordered pursuant to clause (v) of subparagraph
37(B), and the treating psychiatrist determines that antipsychotic
38medication has become medically necessary and appropriate, the
39treating psychiatrist shall make efforts to obtain informed consent
40from the defendant for antipsychotic medication. If informed
P13   1consent is not obtained from the defendant, and the treating
2psychiatrist is of the opinion that the defendant lacks capacity to
3make decisions regarding antipsychotic medication based on the
4conditions described in subclause (I) or (II) of clause (i) of
5subparagraph (B), the treating psychiatrist shall certify whether
6the lack of capacity and any applicable conditions described above
7exist. That certification shall contain an assessment of the current
8mental status of the defendant and the opinion of the treating
9psychiatrist that involuntary antipsychotic medication has become
10medically necessary and appropriate.

11(D) (i) If the treating psychiatrist certifies that antipsychotic
12medication has become medically necessary and appropriate
13pursuant to subparagraph (C), antipsychotic medication may be
14administered to the defendant for not more than 21 days, provided,
15however, that, within 72 hours of the certification, the defendant
16is provided a medication review hearing before an administrative
17law judge to be conducted at the facility where the defendant is
18receiving treatment. The treating psychiatrist shall present the case
19for the certification for involuntary treatment and the defendant
20shall be represented by an attorney or a patients’ rights advocate.
21The attorney or patients’ rights advocate shall be appointed to meet
22with the defendant no later than one day prior to the medication
23review hearing to review the defendant’s rights at the medication
24review hearing, discuss the process, answer questions or concerns
25regarding involuntary medication or the hearing, assist the
26defendant in preparing for the hearing and advocating for his or
27her interests at the hearing, review the panel’s final determination
28following the hearing, advise the defendant of his or her right to
29judicial review of the panel’s decision, and provide the defendant
30with referral information for legal advice on the subject. The
31defendant shall also have the following rights with respect to the
32medication review hearing:

33(I) To be given timely access to the defendant’s records.

34(II)  To be present at the hearing, unless the defendant waives
35that right.

36(III) To present evidence at the hearing.

37(IV) To question persons presenting evidence supporting
38involuntary medication.

39(V) To make reasonable requests for attendance of witnesses
40on the defendant’s behalf.

P14   1(VI) To a hearing conducted in an impartial and informal
2manner.

3(ii) If the administrative law judge determines that the defendant
4either meets the criteria specified in subclause (I) of clause (i) of
5subparagraph (B), or meets the criteria specified in subclause (II)
6of clause (i) of subparagraph (B), then antipsychotic medication
7may continue to be administered to the defendant for the 21-day
8certification period. Concurrently with the treating psychiatrist’s
9certification, the treating psychiatrist shall file a copy of the
10certification and a petition with the court for issuance of an order
11to administer antipsychotic medication beyond the 21-day
12certification period. For purposes of this subparagraph, the treating
13psychiatrist shall not be required to pay or deposit any fee for the
14filing of the petition or other document or paper related to the
15petition.

16(iii) If the administrative law judge disagrees with the
17certification, medication may not be administered involuntarily
18until the court determines that antipsychotic medication should be
19administered pursuant to this section.

20(iv) The court shall provide notice to the prosecuting attorney
21and to the attorney representing the defendant, and shall hold a
22hearing, no later than 18 days from the date of the certification, to
23determine whether antipsychotic medication should be ordered
24beyond the certification period.

25(v) If, as a result of the hearing, the court determines that
26antipsychotic medication should be administered beyond the
27certification period, the court shall issue an order authorizing the
28administration of that medication.

29(vi) The court shall render its decision on the petition and issue
30its order no later than three calendar days after the hearing and, in
31any event, no later than the expiration of the 21-day certification
32period.

33(3) When the court orders that the defendant be confined in a
34state hospital or other public or private treatment facility, the court
35shall provide copies of the following documents which shall be
36taken with the defendant to the state hospital or other treatment
37facility where the defendant is to be confined:

38(A) The commitment order, including a specification of the
39charges.

P15   1(B) A computation or statement setting forth the maximum term
2of commitment in accordance with subdivision (c).

3(C) A computation or statement setting forth the amount of
4credit for time served, if any, to be deducted from the maximum
5term of commitment.

6(D) State summary criminal history information.

7(E) Any arrest reports prepared by the police department or
8other law enforcement agency.

9(F) Any court-ordered psychiatric examination or evaluation
10reports.

11(G) The community program director’s placement
12recommendation report.

13(H) Records of any finding of mental incompetence pursuant
14to this chapter arising out of a complaint charging a felony offense
15specified in Section 290 or any pending Section 1368 proceeding
16arising out of a charge of a Section 290 offense.

17(4) When the defendant is committed to a treatment facility
18pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
19court makes the findings specified in clause (ii) or (iii) of
20subparagraph (B) of paragraph (1) to assign the defendant to a
21treatment facility other than a state hospital or other secure
22treatment facility, the court shall order that notice be given to the
23appropriate law enforcement agency or agencies having local
24jurisdiction at the site of the placement facility of any finding of
25mental incompetence pursuant to this chapter arising out of a
26charge of a Section 290 offense.

27(5) When directing that the defendant be confined in a state
28hospital pursuant to this subdivision, the court shall select the
29hospital in accordance with the policies established by the State
30Department of State Hospitals.

31(6) (A) If the defendant is committed or transferred to a state
32hospital pursuant to this section, the court may, upon receiving the
33written recommendation of the medical director of the state hospital
34and the community program director that the defendant be
35transferred to a public or private treatment facility approved by
36the community program director, order the defendant transferred
37to that facility. If the defendant is committed or transferred to a
38public or private treatment facility approved by the community
39program director, the court may, upon receiving the written
40recommendation of the community program director, transfer the
P16   1defendant to a state hospital or to another public or private
2treatment facility approved by the community program director.
3In the event of dismissal of the criminal charges before the
4defendant recovers competence, the person shall be subject to the
5applicable provisions of the Lanterman-Petris-Short Act (Part 1
6(commencing with Section 5000) of Division 5 of the Welfare and
7Institutions Code). Where either the defendant or the prosecutor
8chooses to contest either kind of order of transfer, a petition may
9be filed in the court for a hearing, which shall be held if the court
10determines that sufficient grounds exist. At the hearing, the
11prosecuting attorney or the defendant may present evidence bearing
12on the order of transfer. The court shall use the same standards as
13are used in conducting probation revocation hearings pursuant to
14Section 1203.2.

15Prior to making an order for transfer under this section, the court
16shall notify the defendant, the attorney of record for the defendant,
17the prosecuting attorney, and the community program director or
18a designee.

19(B) If the defendant is initially committed to a state hospital or
20secure treatment facility pursuant to clause (ii) or (iii) of
21subparagraph (B) of paragraph (1) and is subsequently transferred
22to any other facility, copies of the documents specified in paragraph
23(3) shall be taken with the defendant to each subsequent facility
24to which the defendant is transferred. The transferring facility shall
25also notify the appropriate law enforcement agency or agencies
26having local jurisdiction at the site of the new facility that the
27defendant is a person subject to clause (ii) or (iii) of subparagraph
28(B) of paragraph (1).

29(7) An order by the court authorizing involuntary medication
30of the defendant shall be valid for no more than one year. The
31court shall review the order six months after the order was made
32to determine if the grounds for the authorization remain. In the
33review, the court shall consider the reports of the treating
34psychiatrist or psychiatrists and the defendant’s patients’ rights
35advocate or attorney. The court may require testimony from the
36treating psychiatrist or psychiatrists and the patients’ rights
37advocate or attorney, if necessary. The court may continue the
38order authorizing involuntary medication for up to another six
39months, or vacate the order, or make any other appropriate order.

P17   1(b) (1) Within 90 days of a commitment made pursuant to
2subdivision (a), the medical director of the state hospital or other
3treatment facility to which the defendant is confined shall make a
4written report to the court and the community program director
5for the county or region of commitment, or a designee, concerning
6the defendant’s progress toward recovery of mental competence.
7Where the defendant is on outpatient status, the outpatient treatment
8staff shall make a written report to the community program director
9concerning the defendant’s progress toward recovery of mental
10competence. Within 90 days of placement on outpatient status, the
11community program director shall report to the court on this matter.
12If the defendant has not recovered mental competence, but the
13report discloses a substantial likelihood that the defendant will
14regain mental competence in the foreseeable future, the defendant
15shall remain in the state hospital or other treatment facility or on
16outpatient status. Thereafter, at six-month intervals or until the
17defendant becomes mentally competent, where the defendant is
18confined in a treatment facility, the medical director of the hospital
19or person in charge of the facility shall report in writing to the
20court and the community program director or a designee regarding
21the defendant’s progress toward recovery of mental competence.
22Where the defendant is on outpatient status, after the initial 90-day
23report, the outpatient treatment staff shall report to the community
24program director on the defendant’s progress toward recovery,
25and the community program director shall report to the court on
26this matter at six-month intervals. A copy of these reports shall be
27 provided to the prosecutor and defense counsel by the court. If the
28report indicates that there is no substantial likelihood that the
29defendant will regain mental competence in the foreseeable future,
30the committing court shall order the defendant to be returned to
31the court for proceedings pursuant to paragraph (2) of subdivision
32(c). The court shall transmit a copy of its order to the community
33program director or a designee.

34(2) Where the court has issued an order authorizing the treating
35facility to involuntarily administer antipsychotic medication to the
36defendant, the reports made at six-month intervals concerning the
37defendant’s progress toward regaining competency shall also
38consider the issue of involuntary medication. Each report shall
39include, but is not limited to, all the following:

P18   1(A) Whether or not the defendant has the capacity to make
2decisions concerning antipsychotic medication.

3(B) If the defendant lacks capacity to make decisions concerning
4antipsychotic medication, whether the defendant risks serious harm
5to his or her physical or mental health if not treated with
6antipsychotic medication.

7(C) Whether or not the defendant presents a danger to others if
8he or she is not treated with antipsychotic medication.

9(D) Whether the defendant has a mental illness for which
10medications are the only effective treatment.

11(E) Whether there are any side effects from the medication
12currently being experienced by the defendant that would interfere
13with the defendant’s ability to collaborate with counsel.

14(F) Whether there are any effective alternatives to medication.

15(G) How quickly the medication is likely to bring the defendant
16to competency.

17(H) Whether the treatment plan includes methods other than
18medication to restore the defendant to competency.

19(I) A statement, if applicable, that no medication is likely to
20restore the defendant to competency.

21(3) After reviewing the reports, the court shall determine whether
22or not grounds for the order authorizing involuntary administration
23of antipsychotic medication still exist and shall do one of the
24following:

25(A) If the original grounds for involuntary medication still exist,
26the order authorizing the treating facility to involuntarily administer
27antipsychotic medication to the defendant shall remain in effect.

28(B) If the original grounds for involuntary medication no longer
29exist, and there is no other basis for involuntary administration of
30antipsychotic medication, the order for the involuntary
31administration of antipsychotic medication shall be vacated.

32(C) If the original grounds for involuntary medication no longer
33exist, and the report states that there is another basis for involuntary
34administration of antipsychotic medication, the court shall set a
35hearing within 21 days to determine whether the order for the
36involuntary administration of antipsychotic medication shall be
37vacated or whether a new order for the involuntary administration
38of antipsychotic medication shall be issued. The hearing shall
39proceed as set forth in subparagraph (B) of paragraph (2) of
40subdivision (a).

P19   1(4) Any defendant who has been committed or has been on
2outpatient status for 18 months and is still hospitalized or on
3outpatient status shall be returned to the committing court where
4a hearing shall be held pursuant to the procedures set forth in
5Section 1369. The court shall transmit a copy of its order to the
6community program director or a designee.

7(5) If it is determined by the court that no treatment for the
8defendant’s mental impairment is being conducted, the defendant
9shall be returned to the committing court. The court shall transmit
10a copy of its order to the community program director or a
11designee.

12(6) At each review by the court specified in this subdivision,
13the court shall determine if the security level of housing and
14treatment is appropriate and may make an order in accordance
15with its determination. If the court determines that the defendant
16shall continue to be treated in the state hospital or on an outpatient
17basis, the court shall determine issues concerning administration
18of antipsychotic medication, as set forth in subparagraph (B) of
19paragraph (2) of subdivision (a).

20(c) (1) At the end of three years from the date of commitment
21or a period of commitment equal to the maximum term of
22imprisonment provided by law for the most serious offense charged
23in the information, indictment, or misdemeanor complaint, or the
24maximum term of imprisonment provided by law for a violation
25of probation or mandatory supervision, whichever is shorter, a
26defendant who has not recovered mental competence shall be
27returned to the committing court. The court shall notify the
28community program director or a designee of the return and of
29any resulting court orders.

30(2) Whenever any defendant is returned to the court pursuant
31to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
32subdivision and it appears to the court that the defendant is gravely
33disabled, as defined in subparagraph (B) of paragraph (1) of
34subdivision (h) of Section 5008 of the Welfare and Institutions
35Code, the court shall order the conservatorship investigator of the
36county of commitment of the defendant to initiate conservatorship
37proceedings for the defendant pursuant to Chapter 3 (commencing
38with Section 5350) of Part 1 of Division 5 of the Welfare and
39Institutions Code. Any hearings required in the conservatorship
40proceedings shall be held in the superior court in the county that
P20   1ordered the commitment. The court shall transmit a copy of the
2order directing initiation of conservatorship proceedings to the
3community program director or a designee, the sheriff and the
4district attorney of the county in which criminal charges are
5pending, and the defendant’s counsel of record. The court shall
6notify the community program director or a designee, the sheriff
7 and district attorney of the county in which criminal charges are
8pending, and the defendant’s counsel of record of the outcome of
9the conservatorship proceedings.

10(3) If a change in placement is proposed for a defendant who
11is committed pursuant to subparagraph (B) of paragraph (1) of
12subdivision (h) of Section 5008 of the Welfare and Institutions
13Code, the court shall provide notice and an opportunity to be heard
14with respect to the proposed placement of the defendant to the
15sheriff and the district attorney of the county in which the criminal
16charges or revocation proceedings are pending.

17(4) Where the defendant is confined in a treatment facility, a
18copy of any report to the committing court regarding the
19defendant’s progress toward recovery of mental competence shall
20be provided by the committing court to the prosecutor and to the
21defense counsel.

22(d) With the exception of proceedings alleging a violation of
23mandatory supervision, the criminal action remains subject to
24dismissal pursuant to Section 1385. If the criminal action is
25dismissed, the court shall transmit a copy of the order of dismissal
26to the community program director or a designee. In a proceeding
27alleging a violation of mandatory supervision, if the person is not
28placed under a conservatorship as described in paragraph (2) of
29subdivision (c), or if a conservatorship is terminated, the court
30shall reinstate mandatory supervision and may modify the terms
31and conditions of supervision to include appropriate mental health
32treatment or refer the matter to a local mental health court, reentry
33court, or other collaborative justice court available for improving
34the mental health of the defendant.

35(e) If the criminal action against the defendant is dismissed, the
36defendant shall be released from any commitment ordered under
37this section, but without prejudice to the initiation of any
38proceedings that may be appropriate under the
39Lanterman-Petris-Short Act (Part 1 (commencing with Section
405000) of Division 5 of the Welfare and Institutions Code).

P21   1(f) As used in this chapter, “community program director” means
2the person, agency, or entity designated by the State Department
3of State Hospitals pursuant to Section 1605 of this code and Section
44360 of the Welfare and Institutions Code.

5(g) For the purpose of this section, “secure treatment facility”
6shall not include, except for state mental hospitals, state
7developmental centers, and correctional treatment facilities, any
8facility licensed pursuant to Chapter 2 (commencing with Section
91250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
103.2 (commencing with Section 1569) of, Division 2 of the Health
11and Safety Code, or any community board and care facility.

12(h) Nothing in this section shall preclude a defendant from filing
13a petition for habeas corpus to challenge the continuing validity
14of an order authorizing a treatment facility or outpatient program
15to involuntarily administer antipsychotic medication to a person
16being treated as incompetent to stand trial.

end delete
17begin insert

begin insertSEC. 7.end insert  

end insert

begin insertSection 1370 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

18

1370.  

(a) (1) (A) If the defendant is found mentally
19competent, the criminal process shall resume, the trial on the
20offense chargedbegin insert or hearing on the alleged violationend insert shall proceed,
21and judgment may be pronounced.

22(B) If the defendant is found mentally incompetent, thebegin delete trial orend delete
23begin insert trial, the hearing on the alleged violation, or theend insert judgment shall
24be suspended until the person becomes mentally competent.

25(i) In the meantime, the court shall order that the mentally
26incompetent defendant be delivered by the sheriff to a state hospital
27for the care and treatment of the mentally disordered, as directed
28by the State Department of State Hospitals, or to any other available
29public or private treatment facility, including a local county jail
30treatment facility or the community-based residential treatment
31system established pursuant to Article 1 (commencing with Section
325670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
33Institutions Code if the facility has a secured perimeter or a locked
34and controlled treatment facility, approved by the community
35program director that will promote the defendant’s speedy
36restoration to mental competence, or placed on outpatient status
37as specified in Section 1600.

38(ii) However, if the action against the defendant who has been
39found mentally incompetent is on a complaint charging a felony
40offense specified in Section 290, the prosecutor shall determine
P22   1whether the defendant previously has been found mentally
2incompetent to stand trial pursuant to this chapter on a charge of
3a Section 290 offense, or whether the defendant is currently the
4subject of a pending Section 1368 proceeding arising out of a
5charge of a Section 290 offense. If either determination is made,
6the prosecutor shall so notify the court and defendant in writing.
7After this notification, and opportunity for hearing, the court shall
8order that the defendant be delivered by the sheriff to a state
9hospital, as directed by the State Department of State Hospitals,
10or other secure treatment facility for the care and treatment of the
11mentally disordered unless the court makes specific findings on
12the record that an alternative placement would provide more
13appropriate treatment for the defendant and would not pose a
14danger to the health and safety of others.

15(iii) If the action against the defendant who has been found
16mentally incompetent is on a complaint charging a felony offense
17specified in Section 290 and the defendant has been denied bail
18pursuant to subdivision (b) of Section 12 of Article I of the
19California Constitution because the court has found, based upon
20clear and convincing evidence, a substantial likelihood that the
21person’s release would result in great bodily harm to others, the
22court shall order that the defendant be delivered by the sheriff to
23a state hospital for the care and treatment of the mentally
24disordered, as directed by the State Department of State Hospitals,
25unless the court makes specific findings on the record that an
26alternative placement would provide more appropriate treatment
27for the defendant and would not pose a danger to the health and
28safety of others.

29(iv) The clerk of the court shall notify the Department of Justice
30in writing of any finding of mental incompetence with respect to
31a defendant who is subject to clause (ii) or (iii) for inclusion in his
32or her state summary criminal history information.

33(C) Upon the filing of a certificate of restoration to competence,
34the court shall order that the defendant be returned to court in
35accordance with Section 1372. The court shall transmit a copy of
36its order to the community program director or a designee.

37(D) A defendant charged with a violent felony may not be
38delivered to a state hospital or treatment facility pursuant to this
39subdivision unless the state hospital or treatment facility has a
P23   1secured perimeter or a locked and controlled treatment facility,
2and the judge determines that the public safety will be protected.

3(E) For purposes of this paragraph, “violent felony” means an
4offense specified in subdivision (c) of Section 667.5.

5(F) A defendant charged with a violent felony may be placed
6on outpatient status, as specified in Section 1600, only if the court
7finds that the placement will not pose a danger to the health or
8safety of others. If the court places a defendant charged with a
9violent felony on outpatient status, as specified in Section 1600,
10the courtbegin delete mustend deletebegin insert shallend insert serve copies of the placement order on defense
11counsel, the sheriff in the county where the defendant will be
12begin delete placedend deletebegin insert placed,end insert and the district attorney for the county in which the
13violent felony charges are pending against the defendant.

14(2) Prior to making the order directing that the defendant be
15committed to the State Department of State Hospitals or other
16treatment facility or placed on outpatient status, the court shall
17proceed as follows:

18(A) The court shall order the community program director or a
19designee to evaluate the defendant and to submit to the court within
2015 judicial days of the order a written recommendation as to
21whether the defendant should be required to undergo outpatient
22treatment, orbegin insert beend insert committed to the State Department of State
23Hospitals or to any other treatment facility.begin delete Noend deletebegin insert Aend insert person shallbegin insert notend insert
24 be admitted to a state hospital or other treatment facility or placed
25on outpatient status under this section without having been
26evaluated by the community program director or a designee. The
27community program director or designee shall evaluate the
28appropriate placement for the defendant between the State
29Department of State Hospitals, a local county jail treatment facility,
30or the community-based residential treatment system based upon
31guidelines provided by the State Department of State Hospitals.
32If a local county jail treatment facility is selected, the State
33Department of State Hospitals shall provide treatment at the county
34jail treatment facility and reimburse the county jail treatment
35facility for the reasonable costs of the bed during the treatment. If
36the community-based residential treatment system is selected, the
37State Department of State Hospitals shall provide reimbursement
38to the community-based residential treatment system for the cost
39of treatment as negotiated with the State Department of State
40Hospitals. The six-month limitation in Section 1369.1 shall not
P24   1apply to individuals deemed incompetent to stand trial who are
2being treated to restore competency within a county jail treatment
3facility pursuant to this section.

4(B) The court shall hear and determine whether the defendant
5lacks capacity to make decisions regarding the administration of
6antipsychotic medication, and shall proceed as follows:

7(i) The court shall hear and determine whether any of the
8following is true:

9(I) The defendant lacks capacity to make decisions regarding
10antipsychotic medication, the defendant’s mental disorder requires
11medical treatment with antipsychotic medication, and, if the
12defendant’s mental disorder is not treated with antipsychotic
13medication, it is probable that serious harm to the physical or
14mental health of the patient will result. Probability of serious harm
15to the physical or mental health of the defendant requires evidence
16that the defendant is presently suffering adverse effects to his or
17her physical or mental health, or the defendant has previously
18suffered these effects as a result of a mental disorder and his or
19her condition is substantially deteriorating. The fact that a
20defendant has a diagnosis of a mental disorder does not alone
21establish probability of serious harm to the physical or mental
22health of the defendant.

23(II) The defendant is a danger to others, in that the defendant
24has inflicted, attempted to inflict, or made a serious threat of
25inflicting substantial physical harm on another while in custody,
26or the defendant had inflicted, attempted to inflict, or made a
27serious threat of inflicting substantial physical harm on another
28that resulted in his or her being taken into custody, and the
29defendant presents, as a result of mental disorder or mental defect,
30a demonstrated danger of inflicting substantial physical harm on
31others. Demonstrated danger may be based on an assessment of
32the defendant’s present mental condition, including a consideration
33of past behavior of the defendant within six years prior to the time
34the defendant last attempted to inflict, inflicted, or threatened to
35inflict substantial physical harm on another, and other relevant
36evidence.

37(III) The people have charged the defendant with a serious crime
38against the person or property, involuntary administration of
39antipsychotic medication is substantially likely to render the
40defendant competent to stand trial, the medication is unlikely to
P25   1have side effects that interfere with the defendant’s ability to
2understand the nature of the criminal proceedings or to assist
3counsel in the conduct of a defense in a reasonable manner, less
4intrusive treatments are unlikely to have substantially the same
5results, and antipsychotic medication is in the patient’s best medical
6interest in light of his or her medical condition.

7(ii) If the court finds any of the conditions described in clause
8(i) to be true, the court shall issue an order authorizing the treatment
9facility to involuntarily administer antipsychotic medication to the
10defendant when and as prescribed by the defendant’s treating
11psychiatrist. The court shall not order involuntary administration
12of psychotropic medication under subclause (III) of clause (i)
13unless the court has first found that the defendant does not meet
14the criteria for involuntary administration of psychotropic
15medication under subclause (I) of clause (i) and does not meet the
16criteria under subclause (II) of clause (i).

17(iii) In all cases, the treating hospital, facility, or program may
18administer medically appropriate antipsychotic medication
19prescribed by a psychiatrist in an emergency as described in
20subdivision (m) of Section 5008 of the Welfare and Institutions
21Code.

22(iv) If the court has determined that the defendant has the
23capacity to make decisions regarding antipsychotic medication,
24and if the defendant, with advice of his or her counsel, consents,
25the court order of commitment shall include confirmation that
26antipsychotic medication may be given to the defendant as
27prescribed by a treating psychiatrist pursuant to the defendant’s
28consent. The commitment order shall also indicate that, if the
29defendant withdraws consent for antipsychotic medication, after
30the treating psychiatrist complies with the provisions of
31subparagraph (C), the defendant shall be returned to court for a
32hearing in accordance with subparagraphs (C) and (D) regarding
33whether antipsychotic medication shall be administered
34involuntarily.

35(v) If the court has determined that the defendant has the
36capacity to make decisions regarding antipsychotic medication
37and if the defendant, with advice from his or her counsel, does not
38consent, the court order for commitment shall indicate that, after
39the treating psychiatrist complies with the provisions of
40subparagraph (C), the defendant shall be returned to court for a
P26   1hearing in accordance with subparagraphs (C) and (D) regarding
2whether antipsychotic medication shall be administered
3involuntarily.

4(vi) Any report made pursuant to paragraph (1) of subdivision
5(b) shall include a description of any antipsychotic medication
6administered to the defendant and its effects and side effects,
7including effects on the defendant’s appearance or behavior that
8 would affect the defendant’s ability to understand the nature of
9the criminal proceedings or to assist counsel in the conduct of a
10defense in a reasonable manner. During the time the defendant is
11confined in a state hospital or other treatment facility or placed on
12outpatient status, either the defendant or the people may request
13that the court review any order made pursuant to this subdivision.
14The defendant, to the same extent enjoyed by other patients in the
15state hospital or other treatment facility, shall have the right to
16contact the patients’ rights advocate regarding his or her rights
17under this section.

18(C) If the defendant consented to antipsychotic medication as
19described in clause (iv) of subparagraph (B), but subsequently
20withdraws his or her consent, or, if involuntary antipsychotic
21medication was not ordered pursuant to clause (v) of subparagraph
22(B), and the treating psychiatrist determines that antipsychotic
23medication has become medically necessary and appropriate, the
24treating psychiatrist shall make efforts to obtain informed consent
25from the defendant for antipsychotic medication. If informed
26consent is not obtained from the defendant, and the treating
27psychiatrist is of the opinion that the defendant lacks capacity to
28make decisions regarding antipsychotic medication based on the
29conditions described in subclause (I) or (II) of clause (i) of
30subparagraph (B), the treating psychiatrist shall certify whether
31the lack of capacity and any applicable conditions described above
32exist. That certification shall contain an assessment of the current
33mental status of the defendant and the opinion of the treating
34psychiatrist that involuntary antipsychotic medication has become
35medically necessary and appropriate.

36(D) (i) If the treating psychiatrist certifies that antipsychotic
37medication has become medically necessary and appropriate
38pursuant to subparagraph (C), antipsychotic medication may be
39administered to the defendant for not more than 21 days, provided,
40however, that, within 72 hours of the certification, the defendant
P27   1is provided a medication review hearing before an administrative
2law judge to be conducted at the facility where the defendant is
3receiving treatment. The treating psychiatrist shall present the case
4for the certification for involuntary treatment and the defendant
5shall be represented by an attorney or a patients’ rights advocate.
6The attorney or patients’ rights advocate shall be appointed to meet
7with the defendant no later than one day prior to the medication
8review hearing to review the defendant’s rights at the medication
9review hearing, discuss the process, answer questions or concerns
10regarding involuntary medication or the hearing, assist the
11defendant in preparing for the hearing and advocating for his or
12her interests at the hearing, review the panel’s final determination
13following the hearing, advise the defendant of his or her right to
14judicial review of the panel’s decision, and provide the defendant
15with referral information for legal advice on the subject. The
16defendant shall also have the following rights with respect to the
17medication review hearing:

18(I) Tobegin delete beingend deletebegin insert beend insert given timely access to the defendant’s records.

19(II)  To be present at the hearing, unless the defendant waives
20that right.

21(III) To present evidence at the hearing.

22(IV) To question persons presenting evidence supporting
23involuntary medication.

24(V) To make reasonable requests for attendance of witnesses
25on the defendant’s behalf.

26(VI) To a hearing conducted in an impartial and informal
27manner.

28(ii) If the administrative law judge determines that the defendant
29either meets the criteria specified in subclause (I) of clause (i) of
30subparagraph (B), or meets the criteria specified in subclause (II)
31of clause (i) of subparagraph (B), then antipsychotic medication
32may continue to be administered to the defendant for the 21-day
33certification period. Concurrently with the treating psychiatrist’s
34certification, the treating psychiatrist shall file a copy of the
35certification and a petition with the court for issuance of an order
36to administer antipsychotic medication beyond the 21-day
37certification period. For purposes of this subparagraph, the treating
38psychiatrist shall not be required to pay or deposit any fee for the
39filing of the petition or other document or paper related to the
40petition.

P28   1(iii) If the administrative law judge disagrees with the
2certification, medication may not be administered involuntarily
3until the court determines that antipsychotic medication should be
4administered pursuant to this section.

5(iv) The court shall provide notice to the prosecuting attorney
6and to the attorney representing the defendant, and shall hold a
7hearing, no later than 18 days from the date of the certification, to
8determine whether antipsychotic medication should be ordered
9beyond the certification period.

10(v) If, as a result of the hearing, the court determines that
11antipsychotic medication should be administered beyond the
12certification period, the court shall issue an order authorizing the
13administration of that medication.

14(vi) The court shall render its decision on the petition and issue
15its order no later than three calendar days after the hearing and, in
16any event, no later than the expiration of the 21-day certification
17period.

18(3) When the court orders that the defendant be committed to
19the State Department of State Hospitals or other public or private
20treatment facility, the court shall provide copies of the following
21documents prior to the admission of the defendant to the State
22Department of State Hospitals or other treatment facility where
23the defendant is to be committed:

24(A) The commitment order, including a specification of the
25charges.

26(B) A computation or statement setting forth the maximum term
27of commitment in accordance with subdivision (c).

28(C) A computation or statement setting forth the amount of
29credit for time served, if any, to be deducted from the maximum
30term of commitment.

31(D) State summary criminal history information.

32(E) Any arrest reports prepared by the police department or
33other law enforcement agency.

34(F) Any court-ordered psychiatric examination or evaluation
35reports.

36(G) The community program director’s placement
37recommendation report.

38(H) Records of any finding of mental incompetence pursuant
39to this chapter arising out of a complaint charging a felony offense
P29   1specified in Section 290 or any pending Section 1368 proceeding
2arising out of a charge of a Section 290 offense.

3(I) Any medical records.

4(4) When the defendant is committed to a treatment facility
5pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
6court makes the findings specified in clause (ii) or (iii) of
7subparagraph (B) of paragraph (1) to assign the defendant to a
8treatment facility other than a state hospital or other secure
9treatment facility, the court shall order that notice be given to the
10appropriate law enforcement agency or agencies having local
11jurisdiction at the site of the placement facility of any finding of
12mental incompetence pursuant to this chapter arising out of a
13charge of a Section 290 offense.

14(5) When directing that the defendant be confined in a state
15hospital pursuant to this subdivision, the court shall commit the
16patient to the State Department of State Hospitals.

17(6) (A) If the defendant is committed or transferred to the State
18Department of State Hospitals pursuant to this section, the court
19may, upon receiving the written recommendation of the medical
20director of the state hospital and the community program director
21that the defendant be transferred to a public or private treatment
22facility approved by the community program director, order the
23defendant transferred to that facility. If the defendant is committed
24or transferred to a public or private treatment facility approved by
25the community program director, the court may, upon receiving
26the written recommendation of the community program director,
27transfer the defendant to the State Department of State Hospitals
28or to another public or private treatment facility approved by the
29community program director. In the event of dismissal of the
30criminal charges before the defendant recovers competence, the
31person shall be subject to the applicable provisions of the
32Lanterman-Petris-Short Act (Part 1 (commencing with Section
335000) of Division 5 of the Welfare and Institutions Code). If either
34the defendant or the prosecutor chooses to contest either kind of
35order of transfer, a petition may be filed in the court for a hearing,
36which shall be held if the court determines that sufficient grounds
37exist. At the hearing, the prosecuting attorney or the defendant
38may present evidence bearing on the order of transfer. The court
39shall use the same standards as are used in conducting probation
40revocation hearings pursuant to Section 1203.2.

P30   1Prior to making an order for transfer under this section, the court
2shall notify the defendant, the attorney of record for the defendant,
3the prosecuting attorney, and the community program director or
4a designee.

5(B) If the defendant is initially committed to the State
6Department of State Hospitals or secure treatment facility pursuant
7to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
8subsequently transferred to any other facility, copies of the
9documents specified in paragraph (3) shall be taken with the
10defendant to each subsequent facility to which the defendant is
11transferred. The transferring facility shall also notify the appropriate
12law enforcement agency or agencies having local jurisdiction at
13the site of the new facility that the defendant is a person subject
14to clause (ii) or (iii) of subparagraph (B) of paragraph (1).

15(7) An order by the court authorizing involuntary medication
16of the defendant shall be valid for no more than one year. The
17court shall review the order six months after the order was made
18to determine if the grounds for the authorization remain. In the
19review, the court shall consider the reports of the treating
20psychiatrist or psychiatrists and the defendant’s patients’ rights
21 advocate or attorney. The court may require testimony from the
22treating psychiatrist or psychiatrists and the patients’ rights
23advocate or attorney, if necessary. The court may continue the
24order authorizing involuntary medication for up to another six
25months, or vacate the order, or make any other appropriate order.

26(b) (1) Within 90 days of a commitment made pursuant to
27subdivision (a), the medical director of the state hospital or other
28treatment facility to which the defendant is confined shall make a
29written report to the court and the community program director
30for the county or region of commitment, or a designee, concerning
31the defendant’s progress toward recovery of mental competence.
32If the defendant is on outpatient status, the outpatient treatment
33staff shall make a written report to the community program director
34concerning the defendant’s progress toward recovery of mental
35competence. Within 90 days of placement on outpatient status, the
36community program director shall report to the court on this matter.
37If the defendant has not recovered mental competence, but the
38report discloses a substantial likelihood that the defendant will
39regain mental competence in the foreseeable future, the defendant
40shall remain in the state hospital or other treatment facility or on
P31   1outpatient status. Thereafter, at six-month intervals or until the
2defendant becomes mentally competent, if the defendant is
3confined in a treatment facility, the medical director of the hospital
4or person in charge of the facility shall report in writing to the
5court and the community program director or a designee regarding
6the defendant’s progress toward recovery of mental competence.
7If the defendant is on outpatient status, after the initial 90-day
8report, the outpatient treatment staff shall report to the community
9program director on the defendant’s progress toward recovery,
10and the community program director shall report to the court on
11 this matter at six-month intervals. A copy of these reports shall be
12provided to the prosecutor and defense counsel by the court. If the
13report indicates that there is no substantial likelihood that the
14defendant will regain mental competence in the foreseeable future,
15the committing court shall order the defendant to be returned to
16the court for proceedings pursuant to paragraph (2) of subdivision
17(c). The court shall transmit a copy of its order to the community
18program director or a designee.

19(2) If the court has issued an order authorizing the treating
20facility to involuntarily administer antipsychotic medication to the
21defendant, the reports made at six-month intervals concerning the
22defendant’s progress toward regaining competency shall also
23consider the issue of involuntary medication. Each report shall
24include, but is not limited to, all the following:

25(A) Whether or not the defendant has the capacity to make
26decisions concerning antipsychotic medication.

27(B) If the defendant lacks capacity to make decisions concerning
28antipsychotic medication, whether the defendant risks serious harm
29to his or her physical or mental health if not treated with
30antipsychotic medication.

31(C) Whether or not the defendant presents a danger to others if
32he or she is not treated with antipsychotic medication.

33(D) Whether the defendant has a mental illness for which
34medications are the only effective treatment.

35(E) Whether there are any side effects from the medication
36currently being experienced by the defendant that would interfere
37with the defendant’s ability to collaborate with counsel.

38(F) Whether there are any effective alternatives to medication.

39(G) How quickly the medication is likely to bring the defendant
40to competency.

P32   1(H) Whether the treatment plan includes methods other than
2medication to restore the defendant to competency.

3(I) A statement, if applicable, that no medication is likely to
4restore the defendant to competency.

5(3) After reviewing the reports, the court shall determine whether
6or not grounds for the order authorizing involuntary administration
7of antipsychotic medication still exist and shall do one of the
8following:

9(A) If the original grounds for involuntary medication still exist,
10the order authorizing the treating facility to involuntarily administer
11antipsychotic medication to the defendant shall remain in effect.

12(B) If the original grounds for involuntary medication no longer
13exist, and there is no other basis for involuntary administration of
14antipsychotic medication, the order for the involuntary
15administration of antipsychotic medication shall be vacated.

16(C) If the original grounds for involuntary medication no longer
17exist, and the report states that there is another basis for involuntary
18administration of antipsychotic medication, the court shall set a
19hearing within 21 days to determine whether the order for the
20involuntary administration of antipsychotic medication shall be
21vacated or whether a new order for the involuntary administration
22of antipsychotic medication shall be issued. The hearing shall
23proceed as set forth in subparagraph (B) of paragraph (2) of
24subdivision (a).

25(4) Any defendant who has been committed or has been on
26outpatient status for 18 months and is still hospitalized or on
27outpatient status shall be returned to the committing court where
28a hearing shall be held pursuant to the procedures set forth in
29Section 1369. The court shall transmit a copy of its order to the
30community program director or a designee.

31(5) If it is determined by the court that no treatment for the
32defendant’s mental impairment is being conducted, the defendant
33shall be returned to the committing court. The court shall transmit
34a copy of its order to the community program director or a
35designee.

36(6) At each review by the court specified in this subdivision,
37the court shall determine if the security level of housing and
38treatment is appropriate and may make an order in accordance
39with its determination. If the court determines that the defendant
40shall continue to be treated in the state hospital or on an outpatient
P33   1basis, the court shall determine issues concerning administration
2of antipsychotic medication, as set forth in subparagraph (B) of
3paragraph (2) of subdivision (a).

4(c) (1) At the end of three years from the date of commitment
5or a period of commitment equal to the maximum term of
6imprisonment provided by law for the most serious offense charged
7in the information, indictment, or misdemeanor complaint,begin insert or the
8maximum term of imprisonment provided by law for a violation
9of probation or mandatory supervision,end insert
whichever is shorter, a
10defendant who has not recovered mental competence shall be
11returned to the committing court. The court shall notify the
12community program director or a designee of the return and of
13any resulting court orders.

14(2) Whenever any defendant is returned to the court pursuant
15to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
16subdivision and it appears to the court that the defendant is gravely
17disabled, as defined in subparagraph (B) of paragraph (1) of
18subdivision (h) of Section 5008 of the Welfare and Institutions
19Code, the court shall order the conservatorship investigator of the
20county of commitment of the defendant to initiate conservatorship
21proceedings for the defendant pursuant to Chapter 3 (commencing
22with Section 5350) of Part 1 of Division 5 of the Welfare and
23Institutions Code. Any hearings required in the conservatorship
24proceedings shall be held in the superior court in the county that
25ordered the commitment. The court shall transmit a copy of the
26order directing initiation of conservatorship proceedings to the
27community program director or a designee, the sheriff and the
28 district attorney of the county in which criminal charges are
29pending, and the defendant’s counsel of record. The court shall
30notify the community program director or a designee, the sheriff
31and district attorney of the county in which criminal charges are
32pending, and the defendant’s counsel of record of the outcome of
33the conservatorship proceedings.

34(3) If a change in placement is proposed for a defendant who
35is committed pursuant to subparagraph (B) of paragraph (1) of
36subdivision (h) of Section 5008 of the Welfare and Institutions
37Code, the court shall provide notice and an opportunity to be heard
38with respect to the proposed placement of the defendant to the
39sheriff and the district attorney of the county in whichbegin insert theend insert criminal
40chargesbegin insert or revocation proceedingsend insert are pending.

P34   1(4) If the defendant is confined in a treatment facility, a copy
2of any report to the committing court regarding the defendant’s
3progress toward recovery of mental competence shall be provided
4by the committing court to the prosecutor and to the defense
5counsel.

6(d) begin deleteThe end deletebegin insertWith the exception of proceedings alleging a violation
7of mandatory supervision, the end insert
criminal action remains subject to
8dismissal pursuant to Section 1385. If the criminal action is
9dismissed, the court shall transmit a copy of the order of dismissal
10to the community program director or a designee.begin insert In a proceeding
11alleging a violation of mandatory supervision, if the person is not
12placed under a conservatorship as described in paragraph (2) of
13subdivision (c), or if a conservatorship is terminated, the court
14shall reinstate mandatory supervision and may modify the terms
15and conditions of supervision to include appropriate mental health
16treatment or refer the matter to a local mental health court, reentry
17court, or other collaborative justice court available for improving
18the mental health of the defendant.end insert

19(e) If the criminalbegin delete chargeend deletebegin insert actionend insert against the defendant is
20dismissed, the defendant shall be released from any commitment
21ordered under this section, but without prejudice to the initiation
22of any proceedings that may be appropriate under the
23Lanterman-Petris-Shortbegin delete Act, Partend deletebegin insert Act (Partend insert 1 (commencing with
24Section 5000) of Division 5 of the Welfare and Institutionsbegin delete Code.end delete
25begin insert Code).end insert

26(f) As used in this chapter, “community program director” means
27the person, agency, or entity designated by the State Department
28of State Hospitals pursuant to Section 1605 of this code and Section
294360 of the Welfare and Institutions Code.

30(g) For the purpose of this section, “secure treatment facility”
31shall not include, except for state mental hospitals, state
32developmental centers, and correctional treatment facilities, any
33facility licensed pursuant to Chapter 2 (commencing with Section
341250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
353.2 (commencing with Section 1569) of, Division 2 of the Health
36and Safety Code, or any community board and care facility.

37(h) Nothing in this section shall preclude a defendant from filing
38a petition for habeas corpus to challenge the continuing validity
39of an order authorizing a treatment facility or outpatient program
P35   1to involuntarily administer antipsychotic medication to a person
2being treated as incompetent to stand trial.

3begin insert

begin insertSEC. 7.1.end insert  

end insert

begin insertSection 1370 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

4

1370.  

(a) (1) (A) If the defendant is found mentally
5competent, the criminal process shall resume, the trial on the
6offense chargedbegin insert or hearing on the alleged violationend insert shall proceed,
7and judgment may be pronounced.

8(B) If the defendant is found mentally incompetent, thebegin delete trial orend delete
9begin insert trial, the hearing on the alleged violation, or theend insert judgment shall
10be suspended until the person becomes mentally competent.

11(i) In the meantime, the court shall order that the mentally
12incompetent defendant be delivered by the sheriff to a state hospital
13for the care and treatment of the mentally disordered, as directed
14by the State Department of State Hospitals, or to any other available
15public or private treatment facility, including a local county jail
16treatment facility or the community-based residential treatment
17system established pursuant to Article 1 (commencing with Section
185670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
19Institutions Code if the facility has a secured perimeter or a locked
20and controlled treatment facility, approved by the community
21program director that will promote the defendant’s speedy
22restoration to mental competence, or placed on outpatient status
23as specified in Section 1600.

24(ii) However, if the action against the defendant who has been
25found mentally incompetent is on a complaint charging a felony
26offense specified in Section 290, the prosecutor shall determine
27whether the defendant previously has been found mentally
28incompetent to stand trial pursuant to this chapter on a charge of
29a Section 290 offense, or whether the defendant is currently the
30subject of a pending Section 1368 proceeding arising out of a
31charge of a Section 290 offense. If either determination is made,
32the prosecutor shall so notify the court and defendant in writing.
33After this notification, and opportunity for hearing, the court shall
34order that the defendant be delivered by the sheriff to a state
35hospital, as directed by the State Department of State Hospitals,
36or other secure treatment facility for the care and treatment of the
37mentally disordered unless the court makes specific findings on
38the record that an alternative placement would provide more
39appropriate treatment for the defendant and would not pose a
40danger to the health and safety of others.

P36   1(iii) If the action against the defendant who has been found
2mentally incompetent is on a complaint charging a felony offense
3specified in Section 290 and the defendant has been denied bail
4pursuant to subdivision (b) of Section 12 of Article I of the
5California Constitution because the court has found, based upon
6clear and convincing evidence, a substantial likelihood that the
7person’s release would result in great bodily harm to others, the
8court shall order that the defendant be delivered by the sheriff to
9a state hospital for the care and treatment of the mentally
10disordered, as directed by the State Department of State Hospitals,
11unless the court makes specific findings on the record that an
12alternative placement would provide more appropriate treatment
13for the defendant and would not pose a danger to the health and
14safety of others.

15(iv) The clerk of the court shall notify the Department of Justice
16in writing of any finding of mental incompetence with respect to
17a defendant who is subject to clause (ii) or (iii) for inclusion in his
18or her state summary criminal history information.

19(C) Upon the filing of a certificate of restoration to competence,
20the court shall order that the defendant be returned to court in
21accordance with Section 1372. The court shall transmit a copy of
22its order to the community program director or a designee.

23(D) A defendant charged with a violent felony may not be
24delivered to a state hospital or treatment facility pursuant to this
25subdivision unless the state hospital or treatment facility has a
26secured perimeter or a locked and controlled treatment facility,
27and the judge determines that the public safety will be protected.

28(E) For purposes of this paragraph, “violent felony” means an
29offense specified in subdivision (c) of Section 667.5.

30(F) A defendant charged with a violent felony may be placed
31on outpatient status, as specified in Section 1600, only if the court
32finds that the placement will not pose a danger to the health or
33safety of others. If the court places a defendant charged with a
34violent felony on outpatient status, as specified in Section 1600,
35the courtbegin delete mustend deletebegin insert shallend insert serve copies of the placement order on defense
36counsel, the sheriff in the county where the defendant will be
37begin delete placedend deletebegin insert placed,end insert and the district attorney for the county in which the
38violent felony charges are pending against the defendant.

39(2) Prior to making the order directing that the defendant be
40committed to the State Department of State Hospitals or other
P37   1treatment facility or placed on outpatient status, the court shall
2proceed as follows:

3(A) The court shall order the community program director or a
4designee to evaluate the defendant and to submit to the court within
515 judicial days of the order a written recommendation as to
6whether the defendant should be required to undergo outpatient
7treatment, orbegin insert beend insert committed to the State Department of State
8Hospitals or to any other treatment facility.begin delete Noend deletebegin insert Aend insert person shallbegin insert notend insert
9 be admitted to a state hospital or other treatment facility or placed
10on outpatient status under this section without having been
11evaluated by the community program director or a designee. The
12community program director or designee shall evaluate the
13appropriate placement for the defendant between the State
14Department of State Hospitals, a local county jail treatment facility,
15or the community-based residential treatment system based upon
16guidelines provided by the State Department of State Hospitals.
17If a local county jail treatment facility is selected, the State
18Department of State Hospitals shall provide treatment at the county
19jail treatment facility and reimburse the county jail treatment
20facility for the reasonable costs of the bed during the treatment. If
21the community-based residential treatment system is selected, the
22State Department of State Hospitals shall provide reimbursement
23to the community-based residential treatment system for the cost
24of treatment as negotiated with the State Department of State
25Hospitals. The six-month limitation in Section 1369.1 shall not
26apply to individuals deemed incompetent to stand trial who are
27being treated to restore competency within a county jail treatment
28facility pursuant to this section.

29(B) The court shall hear and determine whether thebegin insert defendant
30lacks capacity to make decisions regarding the administration of
31antipsychotic medication. The court shall consider opinions in the
32reports prepared pursuant to subdivision (a) of Section 1369, as
33applicable to the issue of whether theend insert
defendant lacks capacity to
34make decisions regarding the administration of antipsychotic
35medication, and shall proceed as follows:

36(i) The court shall hear and determine whether any of the
37following is true:

38(I) The defendant lacks capacity to make decisions regarding
39antipsychotic medication, the defendant’s mental disorder requires
40medical treatment with antipsychotic medication, and, if the
P38   1defendant’s mental disorder is not treated with antipsychotic
2medication, it is probable that serious harm to the physical or
3mental health of the patient will result. Probability of serious harm
4to the physical or mental health of the defendant requires evidence
5that the defendant is presently suffering adverse effects to his or
6her physical or mental health, or the defendant has previously
7suffered these effects as a result of a mental disorder and his or
8her condition is substantially deteriorating. The fact that a
9defendant has a diagnosis of a mental disorder does not alone
10establish probability of serious harm to the physical or mental
11health of the defendant.

12(II) The defendant is a danger to others, in that the defendant
13has inflicted, attempted to inflict, or made a serious threat of
14inflicting substantial physical harm on another while in custody,
15or the defendant had inflicted, attempted to inflict, or made a
16serious threat of inflicting substantial physical harm on another
17that resulted in his or her being taken into custody, and the
18defendant presents, as a result of mental disorder or mental defect,
19a demonstrated danger of inflicting substantial physical harm on
20others. Demonstrated danger may be based on an assessment of
21the defendant’s present mental condition, including a consideration
22of past behavior of the defendant within six years prior to the time
23the defendant last attempted to inflict, inflicted, or threatened to
24inflict substantial physical harm on another, and other relevant
25evidence.

26(III) The people have charged the defendant with a serious crime
27against the person or property, involuntary administration of
28antipsychotic medication is substantially likely to render the
29defendant competent to stand trial, the medication is unlikely to
30have side effects that interfere with the defendant’s ability to
31understand the nature of the criminal proceedings or to assist
32counsel in the conduct of a defense in a reasonable manner, less
33intrusive treatments are unlikely to have substantially the same
34results, and antipsychotic medication is in the patient’s best medical
35interest in light of his or her medical condition.

36(ii) If the court finds any of the conditions described in clause
37(i) to be true, the court shall issue an order authorizingbegin delete the treatment
38facility to involuntarily administerend delete
begin insert involuntary administration ofend insert
39 antipsychotic medication to the defendant when and as prescribed
40by the defendant’s treatingbegin delete psychiatrist.end deletebegin insert psychiatrist at any facility
P39   1housing the defendant for purposes of thisend insert
begin insert chapterend insertbegin insert. The order shall
2be valid for no more than one year, pursuant to subparagraph (A)
3of paragraph (7).end insert
The court shall not order involuntary
4administration of psychotropic medication under subclause (III)
5of clause (i) unless the court has first found that the defendant does
6not meet the criteria for involuntary administration of psychotropic
7medication under subclause (I) of clause (i) and does not meet the
8criteria under subclause (II) of clause (i).

9(iii) In all cases, the treating hospital, facility, or program may
10administer medically appropriate antipsychotic medication
11prescribed by a psychiatrist in an emergency as described in
12subdivision (m) of Section 5008 of the Welfare and Institutions
13Code.

14(iv) If the court has determined that the defendant has the
15capacity to make decisions regarding antipsychotic medication,
16and if the defendant, with advice of his or her counsel, consents,
17the court order of commitment shall include confirmation that
18antipsychotic medication may be given to the defendant as
19prescribed by a treating psychiatrist pursuant to the defendant’s
20consent. The commitment order shall also indicate that, if the
21defendant withdraws consent for antipsychotic medication, after
22the treating psychiatrist complies with the provisions of
23subparagraph (C), the defendant shall be returned to court for a
24hearing in accordance with subparagraphs (C) and (D) regarding
25whether antipsychotic medication shall be administered
26involuntarily.

27(v) If the court has determined that the defendant has the
28capacity to make decisions regarding antipsychotic medication
29and if the defendant, with advice from his or her counsel, does not
30consent, the court order for commitment shall indicate that, after
31the treating psychiatrist complies with the provisions of
32subparagraph (C), the defendant shall be returned to court for a
33hearing in accordance with subparagraphs (C) and (D) regarding
34whether antipsychotic medication shall be administered
35involuntarily.

36(vi) Any report made pursuant to paragraph (1) of subdivision
37(b) shall include a description of any antipsychotic medication
38administered to the defendant and its effects and side effects,
39including effects on the defendant’s appearance or behavior that
40would affect the defendant’s ability to understand the nature of
P40   1the criminal proceedings or to assist counsel in the conduct of a
2defense in a reasonable manner. During the time the defendant is
3confined in a state hospital or other treatment facility or placed on
4outpatient status, either the defendant or the people may request
5that the court review any order made pursuant to this subdivision.
6The defendant, to the same extent enjoyed by other patients in the
7state hospital or other treatment facility, shall have the right to
8contact the patients’ rights advocate regarding his or her rights
9under this section.

10(C) If the defendant consented to antipsychotic medication as
11described in clause (iv) of subparagraph (B), but subsequently
12withdraws his or her consent, or, if involuntary antipsychotic
13medication was not ordered pursuant to clause (v) of subparagraph
14(B), and the treating psychiatrist determines that antipsychotic
15medication has become medically necessary and appropriate, the
16treating psychiatrist shall make efforts to obtain informed consent
17from the defendant for antipsychotic medication. If informed
18consent is not obtained from the defendant, and the treating
19psychiatrist is of the opinion that the defendant lacks capacity to
20make decisions regarding antipsychotic medication based on the
21conditions described in subclause (I) or (II) of clause (i) of
22subparagraph (B), the treating psychiatrist shall certify whether
23the lack of capacity and any applicable conditions described above
24exist. That certification shall contain an assessment of the current
25mental status of the defendant and the opinion of the treating
26psychiatrist that involuntary antipsychotic medication has become
27medically necessary and appropriate.

28(D) (i) If the treating psychiatrist certifies that antipsychotic
29medication has become medically necessary and appropriate
30pursuant to subparagraph (C), antipsychotic medication may be
31administered to the defendant for not more than 21 days, provided,
32however, that, within 72 hours of the certification, the defendant
33is provided a medication review hearing before an administrative
34law judge to be conducted at the facility where the defendant is
35receiving treatment. The treating psychiatrist shall present the case
36for the certification for involuntary treatment and the defendant
37shall be represented by an attorney or a patients’ rights advocate.
38The attorney or patients’ rights advocate shall be appointed to meet
39with the defendant no later than one day prior to the medication
40review hearing to review the defendant’s rights at the medication
P41   1review hearing, discuss the process, answer questions or concerns
2regarding involuntary medication or the hearing, assist the
3defendant in preparing for the hearing and advocating for his or
4 her interests at the hearing, review the panel’s final determination
5following the hearing, advise the defendant of his or her right to
6judicial review of the panel’s decision, and provide the defendant
7with referral information for legal advice on the subject. The
8defendant shall also have the following rights with respect to the
9medication review hearing:

10(I) Tobegin delete beingend deletebegin insert beend insert given timely access to the defendant’s records.

11(II)  To be present at the hearing, unless the defendant waives
12that right.

13(III) To present evidence at the hearing.

14(IV) To question persons presenting evidence supporting
15involuntary medication.

16(V) To make reasonable requests for attendance of witnesses
17on the defendant’s behalf.

18(VI) To a hearing conducted in an impartial and informal
19manner.

20(ii) If the administrative law judge determines that the defendant
21either meets the criteria specified in subclause (I) of clause (i) of
22subparagraph (B), or meets the criteria specified in subclause (II)
23of clause (i) of subparagraph (B), then antipsychotic medication
24may continue to be administered to the defendant for the 21-day
25certification period. Concurrently with the treating psychiatrist’s
26certification, the treating psychiatrist shall file a copy of the
27certification and a petition with the court for issuance of an order
28to administer antipsychotic medication beyond the 21-day
29certification period. For purposes of this subparagraph, the treating
30psychiatrist shall not be required to pay or deposit any fee for the
31filing of the petition or other document or paper related to the
32petition.

33(iii) If the administrative law judge disagrees with the
34certification, medication may not be administered involuntarily
35until the court determines that antipsychotic medication should be
36administered pursuant to this section.

37(iv) The court shall provide notice to the prosecuting attorney
38and to the attorney representing the defendant, and shall hold a
39hearing, no later than 18 days from the date of the certification, to
P42   1determine whether antipsychotic medication should be ordered
2beyond the certification period.

3(v) If, as a result of the hearing, the court determines that
4antipsychotic medication should be administered beyond the
5 certification period, the court shall issue an order authorizing the
6administration of that medication.

7(vi) The court shall render its decision on the petition and issue
8its order no later than three calendar days after the hearing and, in
9any event, no later than the expiration of the 21-day certification
10period.

begin insert

11(vii) If the administrative law judge upholds the certification
12pursuant to clause (ii), the court may, for a period not to exceed
1314 days, extend the certification and continue the hearing pursuant
14to stipulation between the parties or upon a finding of good cause.
15In determining good cause, the court may review the petition filed
16with the court, the administrative law judge’s order, and any
17additional testimony needed by the court to determine if it is
18appropriate to continue medication beyond the 21-day certification
19and for a period of up to 14 days.

end insert
begin insert

20(viii) The district attorney, county counsel, or representative of
21any facility where a defendant found incompetent to stand trial is
22committed may petition the court for an order to administer
23involuntary medication pursuant to the criteria set forth in
24subclauses (II) and (III) of clause (i) of subparagraph (B). The
25order is reviewable as provided in paragraph (7).

end insert

26(3) When the court orders that the defendant be committed to
27the State Department of State Hospitals or other public or private
28treatment facility, the court shall provide copies of the following
29documents prior to the admission of the defendant to the State
30Department of State Hospitals or other treatment facility where
31the defendant is to be committed:

32(A) The commitment order, including a specification of the
33charges.

34(B) A computation or statement setting forth the maximum term
35of commitment in accordance with subdivision (c).

36(C) A computation or statement setting forth the amount of
37credit for time served, if any, to be deducted from the maximum
38term of commitment.

39(D) State summary criminal history information.

P43   1(E) Any arrest reports prepared by the police department or
2other law enforcement agency.

3(F) Any court-ordered psychiatric examination or evaluation
4reports.

5(G) The community program director’s placement
6recommendation report.

7(H) Records of any finding of mental incompetence pursuant
8to this chapter arising out of a complaint charging a felony offense
9specified in Section 290 or any pending Section 1368 proceeding
10arising out of a charge of a Section 290 offense.

11(I) Any medical records.

12(4) When the defendant is committed to a treatment facility
13pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
14court makes the findings specified in clause (ii) or (iii) of
15subparagraph (B) of paragraph (1) to assign the defendant to a
16treatment facility other than a state hospital or other secure
17treatment facility, the court shall order that notice be given to the
18appropriate law enforcement agency or agencies having local
19jurisdiction at the site of the placement facility of any finding of
20mental incompetence pursuant to this chapter arising out of a
21charge of a Section 290 offense.

22(5) When directing that the defendant be confined in a state
23hospital pursuant to this subdivision, the court shall commit the
24patient to the State Department of State Hospitals.

25(6) (A) If the defendant is committed or transferred to the State
26Department of State Hospitals pursuant to this section, the court
27may, upon receiving the written recommendation of the medical
28director of the state hospital and the community program director
29that the defendant be transferred to a public or private treatment
30facility approved by the community program director, order the
31defendant transferred to that facility. If the defendant is committed
32or transferred to a public or private treatment facility approved by
33the community program director, the court may, upon receiving
34the written recommendation of the community program director,
35transfer the defendant to the State Department of State Hospitals
36or to another public or private treatment facility approved by the
37community program director. In the event of dismissal of the
38criminal charges before the defendant recovers competence, the
39person shall be subject to the applicable provisions of the
40Lanterman-Petris-Short Act (Part 1 (commencing with Section
P44   15000) of Division 5 of the Welfare and Institutions Code). If either
2the defendant or the prosecutor chooses to contest either kind of
3order of transfer, a petition may be filed in the court for a hearing,
4which shall be held if the court determines that sufficient grounds
5exist. At the hearing, the prosecuting attorney or the defendant
6may present evidence bearing on the order of transfer. The court
7shall use the same standards as are used in conducting probation
8revocation hearings pursuant to Section 1203.2.

9Prior to making an order for transfer under this section, the court
10shall notify the defendant, the attorney of record for the defendant,
11the prosecuting attorney, and the community program director or
12a designee.

13(B) If the defendant is initially committed to the State
14Department of State Hospitals or secure treatment facility pursuant
15to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
16subsequently transferred to any other facility, copies of the
17documents specified in paragraph (3) shall be taken with the
18defendant to each subsequent facility to which the defendant is
19transferred. The transferring facility shall also notify the appropriate
20law enforcement agency or agencies having local jurisdiction at
21the site of the new facility that the defendant is a person subject
22to clause (ii) or (iii) of subparagraph (B) of paragraph (1).

23(7) begin insert(A)end insertbegin insertend insert An order by the court authorizing involuntary
24medication of the defendant shall be valid for no more than one
25year. The court shall review the order six months after the order
26was made to determine if the grounds for the authorization remain.
27In the review, the court shall consider the reports of the treating
28psychiatrist or psychiatrists and the defendant’s patients’ rights
29advocate or attorney. The court may require testimony from the
30treating psychiatrist or psychiatrists and the patients’ rights
31advocate or attorney, if necessary. The court may continue the
32order authorizing involuntary medication for up to another six
33months, or vacate the order, or make any other appropriate order.

begin insert

34(B) Within 60 days before the expiration of the one-year
35involuntary medication order, the district attorney, county counsel,
36or representative of any facility where a defendant found
37incompetent to stand trial is committed may petition the committing
38court for a renewal, subject to the same conditions and
39requirements as in subparagraph (A). The petition shall include
40the basis for involuntary medication set forth in clause (i) of
P45   1subparagraph (B) of paragraph (2). Notice of the petition shall
2be provided to the defendant, the defendant’s attorney, and the
3district attorney. The court shall hear and determine whether the
4defendant continues to meet the criteria set forth in clause (i) of
5subparagraph (B) of paragraph (2). The hearing on any petition
6to renew an order for involuntary medication shall be conducted
7prior to the expiration of the current order.

end insert

8(b) (1) Within 90 days of a commitment made pursuant to
9subdivision (a), the medical director of the state hospital or other
10treatment facility to which the defendant is confined shall make a
11written report to the court and the community program director
12for the county or region of commitment, or a designee, concerning
13the defendant’s progress toward recovery of mentalbegin delete competence.end delete
14begin insert competence and whether the administration of antipsychotic
15medication remains necessary.end insert
If the defendant is on outpatient
16status, the outpatient treatment staff shall make a written report to
17the community program director concerning the defendant’s
18progress toward recovery of mental competence. Within 90 days
19of placement on outpatient status, the community program director
20shall report to the court on this matter. If the defendant has not
21recovered mental competence, but the report discloses a substantial
22likelihood that the defendant will regain mental competence in the
23foreseeable future, the defendant shall remain in the state hospital
24or other treatment facility or on outpatient status. Thereafter, at
25six-month intervals or until the defendant becomes mentally
26competent, if the defendant is confined in a treatment facility, the
27medical director of the hospital or person in charge of the facility
28shall report in writing to the court and the community program
29 director or a designee regarding the defendant’s progress toward
30recovery of mentalbegin delete competence.end deletebegin insert competence and whether the
31administration of antipsychotic medication remains necessary.end insert
If
32the defendant is on outpatient status, after the initial 90-day report,
33the outpatient treatment staff shall report to the community program
34director on the defendant’s progress toward recovery, and the
35community program director shall report to the court on this matter
36at six-month intervals. A copy of these reports shall be provided
37to the prosecutor and defense counsel by the court. If the report
38indicates that there is no substantial likelihood that the defendant
39will regain mental competence in the foreseeable future, the
40committing court shall order the defendant to be returned to the
P46   1court for proceedings pursuant to paragraph (2) of subdivision (c).
2The court shall transmit a copy of its order to the community
3program director or a designee.

4(2) If the court has issued an order authorizing the treating
5facility to involuntarily administer antipsychotic medication to the
6defendant, the reports madebegin delete at six-month intervalsend deletebegin insert pursuant to
7paragraph (1)end insert
concerning the defendant’s progress toward
8regaining competency shall also consider the issue of involuntary
9medication. Each report shall include, but is not limited to, all the
10following:

11(A) Whether or not the defendant has the capacity to make
12decisions concerning antipsychotic medication.

13(B) If the defendant lacks capacity to make decisions concerning
14antipsychotic medication, whether the defendant risks serious harm
15to his or her physical or mental health if not treated with
16antipsychotic medication.

17(C) Whether or not the defendant presents a danger to others if
18he or she is not treated with antipsychotic medication.

19(D) Whether the defendant has a mental illness for which
20medications are the only effective treatment.

21(E) Whether there are any side effects from the medication
22currently being experienced by the defendant that would interfere
23with the defendant’s ability to collaborate with counsel.

24(F) Whether there are any effective alternatives to medication.

25(G) How quickly the medication is likely to bring the defendant
26to competency.

27(H) Whether the treatment plan includes methods other than
28medication to restore the defendant to competency.

29(I) A statement, if applicable, that no medication is likely to
30restore the defendant to competency.

31(3) After reviewing the reports, the court shall determine whether
32or not grounds for the order authorizing involuntary administration
33of antipsychotic medication still exist and shall do one of the
34following:

35(A) If the original grounds for involuntary medication still exist,
36the order authorizing the treating facility to involuntarily administer
37antipsychotic medication to the defendant shall remain in effect.

38(B) If the original grounds for involuntary medication no longer
39exist, and there is no other basis for involuntary administration of
P47   1antipsychotic medication, the order for the involuntary
2administration of antipsychotic medication shall be vacated.

3(C) If the original grounds for involuntary medication no longer
4exist, and the report states that there is another basis for involuntary
5administration of antipsychotic medication, the court shall set a
6hearing within 21 days to determine whether the order for the
7involuntary administration of antipsychotic medication shall be
8vacated or whether a new order for the involuntary administration
9of antipsychotic medication shall be issued. The hearing shall
10proceed as set forth in subparagraph (B) of paragraph (2) of
11subdivision (a).

12(4) Any defendant who has been committed or has been on
13outpatient status for 18 months and is still hospitalized or on
14outpatient status shall be returned to the committing court where
15a hearing shall be held pursuant to the procedures set forth in
16Section 1369. The court shall transmit a copy of its order to the
17community program director or a designee.

18(5) If it is determined by the court that no treatment for the
19defendant’s mental impairment is being conducted, the defendant
20shall be returned to the committing court. The court shall transmit
21a copy of its order to the community program director or a
22designee.

23(6) At each review by the court specified in this subdivision,
24the court shall determine if the security level of housing and
25treatment is appropriate and may make an order in accordance
26with its determination. If the court determines that the defendant
27shall continue to be treated in the state hospital or on an outpatient
28basis, the court shall determine issues concerning administration
29of antipsychotic medication, as set forth in subparagraph (B) of
30paragraph (2) of subdivision (a).

31(c) (1) At the end of three years 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 information, indictment, or misdemeanor complaint,begin insert or the
35maximum term of imprisonment provided by law for a violation
36of probation or mandatory supervision,end insert
whichever is shorter, a
37defendant who has not recovered mental competence shall be
38returned to the committing court. The court shall notify the
39community program director or a designee of the return and of
40any resulting court orders.

P48   1(2) Whenever any defendant is returned to the court pursuant
2to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
3subdivision and it appears to the court that the defendant is gravely
4disabled, as defined in subparagraph (B) of paragraph (1) of
5subdivision (h) of Section 5008 of the Welfare and Institutions
6Code, the court shall order the conservatorship investigator of the
7county of commitment of the defendant to initiate conservatorship
8proceedings for the defendant pursuant to Chapter 3 (commencing
9with Section 5350) of Part 1 of Division 5 of the Welfare and
10Institutions Code. Any hearings required in the conservatorship
11proceedings shall be held in the superior court in the county that
12ordered the commitment. The court shall transmit a copy of the
13order directing initiation of conservatorship proceedings to the
14community program director or a designee, the sheriff and the
15district attorney of the county in which criminal charges are
16pending, and the defendant’s counsel of record. The court shall
17notify the community program director or a designee, the sheriff
18and district attorney of the county in which criminal charges are
19pending, and the defendant’s counsel of record of the outcome of
20the conservatorship proceedings.

21(3) If a change in placement is proposed for a defendant who
22is committed pursuant to subparagraph (B) of paragraph (1) of
23subdivision (h) of Section 5008 of the Welfare and Institutions
24Code, the court shall provide notice and an opportunity to be heard
25with respect to the proposed placement of the defendant to the
26sheriff and the district attorney of the county in whichbegin insert theend insert criminal
27chargesbegin insert or revocation proceedingsend insert are pending.

28(4) If the defendant is confined in a treatment facility, a copy
29of any report to the committing court regarding the defendant’s
30progress toward recovery of mental competence shall be provided
31by the committing court to the prosecutor and to the defense
32counsel.

33(d) begin deleteThe end deletebegin insertWith the exception of proceedings alleging a violation
34of mandatory supervision, the end insert
criminal action remains subject to
35dismissal pursuant to Section 1385. If the criminal action is
36dismissed, the court shall transmit a copy of the order of dismissal
37to the community program director or a designee.begin insert In a proceeding
38alleging a violation of mandatory supervision, if the person is not
39placed under a conservatorship as described in paragraph (2) of
40subdivision (c), or if a conservatorship is terminated, the court
P49   1shall reinstate mandatory supervision and may modify the terms
2and conditions of supervision to include appropriate mental health
3treatment or refer the matter to a local mental health court, reentry
4court, or other collaborative justice court available for improving
5the mental health of the defendant.end insert

6(e) If the criminalbegin delete chargeend deletebegin insert actionend insert against the defendant is
7 dismissed, the defendant shall be released from any commitment
8ordered under this section, but without prejudice to the initiation
9of any proceedings that may be appropriate under the
10Lanterman-Petris-Shortbegin delete Act, Partend deletebegin insert Act (Partend insert 1 (commencing with
11Section 5000) of Division 5 of the Welfare and Institutionsbegin delete Code.end delete
12begin insert Code).end insert

13(f) As used in this chapter, “community program director” means
14the person, agency, or entity designated by the State Department
15of State Hospitals pursuant to Section 1605 of this code and Section
164360 of the Welfare and Institutions Code.

17(g) For the purpose of this section, “secure treatment facility”
18shall not include, except for state mental hospitals, state
19developmental centers, and correctional treatment facilities, any
20facility licensed pursuant to Chapter 2 (commencing with Section
211250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
223.2 (commencing with Section 1569) of, Division 2 of the Health
23and Safety Code, or any community board and care facility.

24(h) Nothing in this section shall preclude a defendant from filing
25a petition for habeas corpus to challenge the continuing validity
26of an order authorizing a treatment facility or outpatient program
27to involuntarily administer antipsychotic medication to a person
28being treated as incompetent to stand trial.

29begin insert

begin insertSEC. end insertbegin insert7.2.end insert  

end insert

begin insertSection 1370 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

30

1370.  

(a) (1) (A) If the defendant is found mentally
31competent, the criminal process shall resume, the trial on the
32offense chargedbegin insert or hearing on the alleged violationend insert shall proceed,
33and judgment may be pronounced.

34(B) If the defendant is found mentally incompetent, thebegin delete trial orend delete
35begin insert trial, the hearing on the alleged violation, or theend insert judgment shall
36be suspended until the person becomes mentally competent.

37(i) In the meantime, the court shall order that the mentally
38incompetent defendant be delivered by the sheriff to a state hospital
39for the care and treatment of the mentally disordered, as directed
40by the State Department of State Hospitals, or to any other available
P50   1public or private treatment facility, including a local county jail
2treatment facility or the community-based residential treatment
3system established pursuant to Article 1 (commencing with Section
45670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
5Institutions Code if the facility has a secured perimeter or a locked
6and controlled treatment facility, approved by the community
7program director that will promote the defendant’s speedy
8restoration to mental competence, or placed on outpatient status
9as specified in Section 1600.

10(ii) However, if the action against the defendant who has been
11found mentally incompetent is on a complaint charging a felony
12offense specified in Section 290, the prosecutor shall determine
13whether the defendant previously has been found mentally
14incompetent to stand trial pursuant to this chapter on a charge of
15a Section 290 offense, or whether the defendant is currently the
16subject of a pending Section 1368 proceeding arising out of a
17charge of a Section 290 offense. If either determination is made,
18the prosecutor shall so notify the court and defendant in writing.
19After this notification, and opportunity for hearing, the court shall
20order that the defendant be delivered by the sheriff to a state
21hospital, as directed by the State Department of State Hospitals,
22or other secure treatment facility for the care and treatment of the
23mentally disordered unless the court makes specific findings on
24the record that an alternative placement would provide more
25appropriate treatment for the defendant and would not pose a
26danger to the health and safety of others.

27(iii) If the action against the defendant who has been found
28mentally incompetent is on a complaint charging a felony offense
29specified in Section 290 and the defendant has been denied bail
30pursuant to subdivision (b) of Section 12 of Article I of the
31California Constitution because the court has found, based upon
32clear and convincing evidence, a substantial likelihood that the
33person’s release would result in great bodily harm to others, the
34court shall order that the defendant be delivered by the sheriff to
35a state hospital for the care and treatment of the mentally
36disordered, as directed by the State Department of State Hospitals,
37unless the court makes specific findings on the record that an
38alternative placement would provide more appropriate treatment
39for the defendant and would not pose a danger to the health and
40safety of others.

P51   1(iv) The clerk of the court shall notify the Department of Justice
2in writing of any finding of mental incompetence with respect to
3a defendant who is subject to clause (ii) or (iii) for inclusion in his
4or her state summary criminal history information.

5(C) Upon the filing of a certificate of restoration to competence,
6the court shall order that the defendant be returned to court in
7accordance with Section 1372. The court shall transmit a copy of
8its order to the community program director or a designee.

9(D) A defendant charged with a violent felony may not be
10delivered to a state hospital or treatment facility pursuant to this
11subdivision unless the state hospital or treatment facility has a
12secured perimeter or a locked and controlled treatment facility,
13and the judge determines that the public safety will be protected.

14(E) For purposes of this paragraph, “violent felony” means an
15offense specified in subdivision (c) of Section 667.5.

16(F) A defendant charged with a violent felony may be placed
17on outpatient status, as specified in Section 1600, only if the court
18finds that the placement will not pose a danger to the health or
19safety of others. If the court places a defendant charged with a
20violent felony on outpatient status, as specified in Section 1600,
21the courtbegin delete mustend deletebegin insert shallend insert serve copies of the placement order on defense
22counsel, the sheriff in the county where the defendant will be
23begin delete placedend deletebegin insert placed,end insert and the district attorney for the county in which the
24violent felony charges are pending against the defendant.

25(2) Prior to making the order directing that the defendant be
26committed to the State Department of State Hospitals or other
27treatment facility or placed on outpatient status, the court shall
28proceed as follows:

29(A) The court shall order the community program director or a
30designee to evaluate the defendant and to submit to the court within
3115 judicial days of the order a written recommendation as to
32whether the defendant should be required to undergo outpatient
33treatment, orbegin insert beend insert committed to the State Department of State
34Hospitals or to any other treatment facility.begin delete Noend deletebegin insert Aend insert person shallbegin insert notend insert
35 be admitted to a state hospital or other treatment facility or placed
36on outpatient status under this section without having been
37evaluated by the community program director or a designee. The
38community program director or designee shall evaluate the
39appropriate placement for the defendant between the State
40Department of State Hospitals, a local county jail treatment facility,
P52   1or the community-based residential treatment system based upon
2guidelines provided by the State Department of State Hospitals.
3If a local county jail treatment facility is selected, the State
4Department of State Hospitals shall provide treatment at the county
5jail treatment facility and reimburse the county jail treatment
6facility for the reasonable costs of the bed during the treatment. If
7the community-based residential treatment system is selected, the
8State Department of State Hospitals shall provide reimbursement
9to the community-based residential treatment system for the cost
10of treatment as negotiated with the State Department of State
11Hospitals. The six-month limitation in Section 1369.1 shall not
12apply to individuals deemed incompetent to stand trial who are
13being treated to restore competency within a county jail treatment
14facility pursuant to this section.

15(B) The court shall hear and determine whether the defendant
16lacks capacity to make decisions regarding the administration of
17antipsychotic medication, and shall proceed as follows:

18(i) 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,
P53   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(ii) If the court finds any of the conditions described in clause
19(i) to be true, the court shall issue an order authorizing the treatment
20facility to involuntarily administer antipsychotic medication to the
21defendant when and as prescribed by the defendant’s treating
22psychiatrist. The court shall not order involuntary administration
23of psychotropic medication under subclause (III) of clause (i)
24unless the court has first found that the defendant does not meet
25the criteria for involuntary administration of psychotropic
26medication under subclause (I) of clause (i) and does not meet the
27criteria under subclause (II) of clause (i).

28(iii) In all cases, the treating hospital, facility, or program may
29administer medically appropriate antipsychotic medication
30prescribed by a psychiatrist in an emergency as described in
31subdivision (m) of Section 5008 of the Welfare and Institutions
32Code.

33(iv) If the court has determined that the defendant has the
34capacity to make decisions regarding antipsychotic medication,
35and if the defendant, with advice of his or her counsel, consents,
36the court order of commitment shall include confirmation that
37antipsychotic medication may be given to the defendant as
38prescribed by a treating psychiatrist pursuant to the defendant’s
39consent. The commitment order shall also indicate that, if the
40defendant withdraws consent for antipsychotic medication, after
P54   1the treating psychiatrist complies with the provisions of
2subparagraph (C), the defendant shall be returned to court for a
3hearing in accordance with subparagraphs (C) and (D) regarding
4whether antipsychotic medication shall be administered
5involuntarily.

6(v) If the court has determined that the defendant has the
7capacity to make decisions regarding antipsychotic medication
8and if the defendant, with advice from his or her counsel, does not
9consent, the court order for commitment shall indicate that, after
10the treating psychiatrist complies with the provisions of
11subparagraph (C), the defendant shall be returned to court for a
12hearing in accordance with subparagraphs (C) and (D) regarding
13whether antipsychotic medication shall be administered
14involuntarily.

15(vi) Any report made pursuant to paragraph (1) of subdivision
16(b) shall include a description of any antipsychotic medication
17administered to the defendant and its effects and side effects,
18including effects on the defendant’s appearance or behavior that
19 would affect the defendant’s ability to understand the nature of
20the criminal proceedings or to assist counsel in the conduct of a
21defense in a reasonable manner. During the time the defendant is
22confined in a state hospital or other treatment facility or placed on
23outpatient status, either the defendant or the people may request
24that the court review any order made pursuant to this subdivision.
25The defendant, to the same extent enjoyed by other patients in the
26state hospital or other treatment facility, shall have the right to
27contact the patients’ rights advocate regarding his or her rights
28under this section.

29(C) If the defendant consented to antipsychotic medication as
30described in clause (iv) of subparagraph (B), but subsequently
31withdraws his or her consent, or, if involuntary antipsychotic
32medication was not ordered pursuant to clause (v) of subparagraph
33(B), and the treating psychiatrist determines that antipsychotic
34medication has become medically necessary and appropriate, the
35treating psychiatrist shall make efforts to obtain informed consent
36from the defendant for antipsychotic medication. If informed
37consent is not obtained from the defendant, and the treating
38psychiatrist is of the opinion that the defendant lacks capacity to
39make decisions regarding antipsychotic medication based on the
40conditions described in subclause (I) or (II) of clause (i) of
P55   1subparagraph (B), the treating psychiatrist shall certify whether
2the lack of capacity and any applicable conditions described above
3exist. That certification shall contain an assessment of the current
4mental status of the defendant and the opinion of the treating
5psychiatrist that involuntary antipsychotic medication has become
6medically necessary and appropriate.

7(D) (i) If the treating psychiatrist certifies that antipsychotic
8medication has become medically necessary and appropriate
9pursuant to subparagraph (C), antipsychotic medication may be
10administered to the defendant for not more than 21 days, provided,
11however, that, within 72 hours of the certification, the defendant
12is provided a medication review hearing before an administrative
13law judge to be conducted at the facility where the defendant is
14receiving treatment. The treating psychiatrist shall present the case
15for the certification for involuntary treatment and the defendant
16shall be represented by an attorney or a patients’ rights advocate.
17The attorney or patients’ rights advocate shall be appointed to meet
18with the defendant no later than one day prior to the medication
19review hearing to review the defendant’s rights at the medication
20review hearing, discuss the process, answer questions or concerns
21regarding involuntary medication or the hearing, assist the
22defendant in preparing for the hearing and advocating for his or
23her interests at the hearing, review the panel’s final determination
24following the hearing, advise the defendant of his or her right to
25judicial review of the panel’s decision, and provide the defendant
26with referral information for legal advice on the subject. The
27defendant shall also have the following rights with respect to the
28medication review hearing:

29(I) Tobegin delete beingend deletebegin insert beend insert given timely access to the defendant’s records.

30(II)  To be present at the hearing, unless the defendant waives
31that right.

32(III) To present evidence at the hearing.

33(IV) To question persons presenting evidence supporting
34involuntary medication.

35(V) To make reasonable requests for attendance of witnesses
36on the defendant’s behalf.

37(VI) To a hearing conducted in an impartial and informal
38manner.

39(ii) If the administrative law judge determines that the defendant
40either meets the criteria specified in subclause (I) of clause (i) of
P56   1subparagraph (B), or meets the criteria specified in subclause (II)
2of clause (i) of subparagraph (B), then antipsychotic medication
3may continue to be administered to the defendant for the 21-day
4certification period. Concurrently with the treating psychiatrist’s
5certification, the treating psychiatrist shall file a copy of the
6certification and a petition with the court for issuance of an order
7to administer antipsychotic medication beyond the 21-day
8certification period. For purposes of this subparagraph, the treating
9psychiatrist shall not be required to pay or deposit any fee for the
10filing of the petition or other document or paper related to the
11petition.

12(iii) If the administrative law judge disagrees with the
13certification, medication may not be administered involuntarily
14until the court determines that antipsychotic medication should be
15administered pursuant to this section.

16(iv) The court shall provide notice to the prosecuting attorney
17and to the attorney representing the defendant, and shall hold a
18hearing, no later than 18 days from the date of the certification, to
19determine whether antipsychotic medication should be ordered
20beyond the certification period.

21(v) If, as a result of the hearing, the court determines that
22antipsychotic medication should be administered beyond the
23certification period, the court shall issue an order authorizing the
24administration of that medication.

25(vi) The court shall render its decision on the petition and issue
26its order no later than three calendar days after the hearing and, in
27any event, no later than the expiration of the 21-day certification
28period.

29(3) When the court orders that the defendant be committed to
30the State Department of State Hospitals or other public or private
31treatment facility, the court shall provide copies of the following
32documents prior to the admission of the defendant to the State
33Department of State Hospitals or other treatment facility where
34the defendant is to be committed:

35(A) The commitment order, including a specification of the
36charges.

37(B) A computation or statement setting forth the maximum term
38of commitment in accordance with subdivision (c).

P57   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(I) Any medical records.

16(4) When the defendant is committed to a treatment facility
17pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
18court makes the findings specified in clause (ii) or (iii) of
19subparagraph (B) of paragraph (1) to assign the defendant to a
20treatment facility other than a state hospital or other secure
21treatment facility, the court shall order that notice be given to the
22appropriate law enforcement agency or agencies having local
23jurisdiction at the site of the placement facility of any finding of
24mental incompetence pursuant to this chapter arising out of a
25charge of a Section 290 offense.

26(5) When directing that the defendant be confined in a state
27hospital pursuant to this subdivision, the court shall commit the
28patient to the State Department of State Hospitals.

29(6) (A) If the defendant is committed or transferred to the State
30Department of State Hospitals pursuant to this section, the court
31may, upon receiving the written recommendation of the medical
32director of the state hospital and the community program director
33that the defendant be transferred to a public or private treatment
34facility approved by the community program director, order the
35defendant transferred to that facility. If the defendant is committed
36or transferred to a public or private treatment facility approved by
37the community program director, the court may, upon receiving
38the written recommendation of the community program director,
39transfer the defendant to the State Department of State Hospitals
40or to another public or private treatment facility approved by the
P58   1community program director. In the event of dismissal of the
2criminal charges before the defendant recovers competence, the
3person shall be subject to the applicable provisions of the
4Lanterman-Petris-Short Act (Part 1 (commencing with Section
55000) of Division 5 of the Welfare and Institutions Code). If either
6the defendant or the prosecutor chooses to contest either kind of
7order of transfer, a petition may be filed in the court for a hearing,
8which shall be held if the court determines that sufficient grounds
9exist. At the hearing, the prosecuting attorney or the defendant
10may present evidence bearing on the order of transfer. The court
11shall use the same standards as are used in conducting probation
12revocation hearings pursuant to Section 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 the State
18Department of State Hospitals or secure treatment facility pursuant
19to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
20subsequently transferred to any other facility, copies of the
21documents specified in paragraph (3) shall be taken with the
22defendant to each subsequent facility to which the defendant is
23transferred. The transferring facility shall also notify the appropriate
24law enforcement agency or agencies having local jurisdiction at
25the site of the new facility that the defendant is a person subject
26to clause (ii) or (iii) of subparagraph (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
33 advocate 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
P59   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.
4If 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, if 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.
19If 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
23 this matter at six-month intervals. A copy of these reports shall be
24provided to the prosecutor and defense counsel by the court.begin delete Ifend delete

25begin insert(end insertbegin insertA)end insertbegin insertend insertbegin insertIfend insert the report indicates that there is no substantial likelihood
26that the defendant will regain mental competence in the foreseeable
27future, the committing court shall order the defendant to be returned
28to the court for proceedings pursuant to paragraph (2) of
29subdivisionbegin delete (c).end deletebegin insert (c) no later than 10 days following receipt of the
30report.end insert
The court shall transmit a copy of its order to the
31community program director or a designee.

begin insert

32(B) If the report indicates that there is no substantial likelihood
33that the defendant will regain mental competence in the foreseeable
34future, the medical director of the state hospital or other treatment
35facility to which the defendant is confined shall do both of the
36following:

end insert
begin insert

37(i) Promptly notify and provide a copy of the report to the
38defense counsel and the district attorney.

end insert
begin insert

P60   1(ii) Provide a separate notification, in compliance with
2applicable privacy laws, to the committing county’s sheriff that
3transportation will be needed for the patient.

end insert

4(2) If the court has issued an order authorizing the treating
5facility to involuntarily administer antipsychotic medication to the
6defendant, the reports made at six-month intervals concerning the
7defendant’s progress toward regaining competency shall also
8consider the issue of involuntary medication. Each report shall
9include, but is not limited to, all the following:

10(A) Whether or not the defendant has the capacity to make
11decisions concerning antipsychotic medication.

12(B) If the defendant lacks capacity to make decisions concerning
13antipsychotic medication, whether the defendant risks serious harm
14to his or her physical or mental health if not treated with
15antipsychotic medication.

16(C) Whether or not the defendant presents a danger to others if
17he or she is not treated with antipsychotic medication.

18(D) Whether the defendant has a mental illness for which
19medications are the only effective treatment.

20(E) Whether there are any side effects from the medication
21currently being experienced by the defendant that would interfere
22with the defendant’s ability to collaborate with counsel.

23(F) Whether there are any effective alternatives to medication.

24(G) How quickly the medication is likely to bring the defendant
25to competency.

26(H) Whether the treatment plan includes methods other than
27medication to restore the defendant to competency.

28(I) A statement, if applicable, that no medication is likely to
29restore the defendant to competency.

30(3) After reviewing the reports, the court shall determine whether
31or not grounds for the order authorizing involuntary administration
32of antipsychotic medication still exist and shall do one of the
33following:

34(A) If the original grounds for involuntary medication still exist,
35the order authorizing the treating facility to involuntarily administer
36antipsychotic medication to the defendant shall remain in effect.

37(B) If the original grounds for involuntary medication no longer
38exist, and there is no other basis for involuntary administration of
39antipsychotic medication, the order for the involuntary
40administration of antipsychotic medication shall be vacated.

P61   1(C) If the original grounds for involuntary medication no longer
2exist, and the report states that there is another basis for involuntary
3administration of antipsychotic medication, the court shall set a
4hearing within 21 days to determine whether the order for the
5involuntary administration of antipsychotic medication shall be
6vacated or whether a new order for the involuntary administration
7of antipsychotic medication shall be issued. The hearing shall
8proceed as set forth in subparagraph (B) of paragraph (2) of
9subdivision (a).

10(4) Any defendant who has been committed or has been on
11outpatient status for 18 months and is still hospitalized or on
12outpatient status shall be returned to the committing court where
13a hearing shall be held pursuant to the procedures set forth in
14Section 1369. The court shall transmit a copy of its order to the
15community program director or a designee.

16(5) If it is determined by the court that no treatment for the
17defendant’s mental impairment is being conducted, the defendant
18shall be returned to the committing court. The court shall transmit
19a copy of its order to the community program director or a
20designee.

21(6) At each review by the court specified in this subdivision,
22the court shall determine if the security level of housing and
23treatment is appropriate and may make an order in accordance
24with its determination. If the court determines that the defendant
25shall continue to be treated in the state hospital or on an outpatient
26basis, the court shall determine issues concerning administration
27of antipsychotic medication, as set forth in subparagraph (B) of
28paragraph (2) of subdivision (a).

29(c) (1) At the end of three years from the date of commitment
30or a period of commitment equal to the maximum term of
31imprisonment provided by law for the most serious offense charged
32in the information, indictment, or misdemeanor complaint,begin insert or the
33maximum term of imprisonment provided by law for a violation
34of probation or mandatory supervision,end insert
whichever is shorter,begin insert but
35no later than 90 days prior to the expiration of the defendant’s
36term of commitment,end insert
a defendant who has not recovered mental
37competence shall be returned to the committing court. The court
38shall notify the community program director or a designee of the
39return and of any resulting court orders.

P62   1(2) Whenever any defendant is returned to the court pursuant
2to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
3subdivision and it appears to the court that the defendant is gravely
4disabled, as defined in subparagraph (B) of paragraph (1) of
5subdivision (h) of Section 5008 of the Welfare and Institutions
6Code, the court shall order the conservatorship investigator of the
7county of commitment of the defendant to initiate conservatorship
8proceedings for the defendant pursuant to Chapter 3 (commencing
9with Section 5350) of Part 1 of Division 5 of the Welfare and
10Institutions Code. Any hearings required in the conservatorship
11proceedings shall be held in the superior court in the county that
12ordered the commitment. The court shall transmit a copy of the
13order directing initiation of conservatorship proceedings to the
14community program director or a designee, the sheriff and the
15district attorney of the county in which criminal charges are
16pending, and the defendant’s counsel of record. The court shall
17notify the community program director or a designee, the sheriff
18and district attorney of the county in which criminal charges are
19pending, and the defendant’s counsel of record of the outcome of
20the conservatorship proceedings.

21(3) If a change in placement is proposed for a defendant who
22is committed pursuant to subparagraph (B) of paragraph (1) of
23subdivision (h) of Section 5008 of the Welfare and Institutions
24Code, the court shall provide notice and an opportunity to be heard
25with respect to the proposed placement of the defendant to the
26sheriff and the district attorney of the county in whichbegin insert theend insert criminal
27chargesbegin insert or revocation proceedingsend insert are pending.

28(4) If the defendant is confined in a treatment facility, a copy
29of any report to the committing court regarding the defendant’s
30progress toward recovery of mental competence shall be provided
31by the committing court to the prosecutor and to the defense
32counsel.

33(d) begin deleteThe end deletebegin insertWith the exception of proceedings alleging a violation
34of mandatory supervision, the end insert
criminal action remains subject to
35dismissal pursuant to Section 1385. If the criminal action is
36dismissed, the court shall transmit a copy of the order of dismissal
37to the community program director or a designee.begin insert In a proceeding
38alleging a violation of mandatory supervision, if the person is not
39placed under a conservatorship as described in paragraph (2) of
40subdivision (c), or if a conservatorship is terminated, the court
P63   1shall reinstate mandatory supervision and may modify the terms
2and conditions of supervision to include appropriate mental health
3treatment or refer the matter to a local mental health court, reentry
4court, or other collaborative justice court available for improving
5the mental health of the defendant.end insert

6(e) If the criminalbegin delete chargeend deletebegin insert actionend insert against the defendant is
7dismissed, the defendant shall be released from any commitment
8ordered under this section, but without prejudice to the initiation
9of any proceedings that may be appropriate under the
10Lanterman-Petris-Shortbegin delete Act, Partend deletebegin insert Act (Partend insert 1 (commencing with
11Section 5000) of Division 5 of the Welfare and Institutionsbegin delete Code.end delete
12begin insert Code).end insert

13(f) As used in this chapter, “community program director” means
14the person, agency, or entity designated by the State Department
15of State Hospitals pursuant to Section 1605 of this code and Section
164360 of the Welfare and Institutions Code.

17(g) For the purpose of this section, “secure treatment facility”
18shall not include, except for state mental hospitals, state
19developmental centers, and correctional treatment facilities, any
20facility licensed pursuant to Chapter 2 (commencing with Section
211250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
223.2 (commencing with Section 1569) of, Division 2 of the Health
23and Safety Code, or any community board and care facility.

24(h) Nothing in this section shall preclude a defendant from filing
25a petition for habeas corpus to challenge the continuing validity
26of an order authorizing a treatment facility or outpatient program
27to involuntarily administer antipsychotic medication to a person
28being treated as incompetent to stand trial.

29begin insert

begin insertSEC. 7.3.end insert  

end insert

begin insertSection 1370 of the end insertbegin insertPenal Codeend insertbegin insert is amended to read:end insert

30

1370.  

(a) (1) (A) If the defendant is found mentally
31competent, the criminal process shall resume, the trial on the
32offense chargedbegin insert or hearing on the alleged violationend insert shall proceed,
33and judgment may be pronounced.

34(B) If the defendant is found mentally incompetent, thebegin delete trial orend delete
35begin insert trial, the hearing on the alleged violation, or theend insert judgment shall
36be suspended until the person becomes mentally competent.

37(i) In the meantime, the court shall order that the mentally
38incompetent defendant be delivered by the sheriff to a state hospital
39for the care and treatment of the mentally disordered, as directed
40by the State Department of State Hospitals, or to any other available
P64   1public or private treatment facility, including a local county jail
2treatment facility or the community-based residential treatment
3system established pursuant to Article 1 (commencing with Section
45670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
5Institutions Code if the facility has a secured perimeter or a locked
6and controlled treatment facility, approved by the community
7program director that will promote the defendant’s speedy
8restoration to mental competence, or placed on outpatient status
9as specified in Section 1600.

10(ii) However, if the action against the defendant who has been
11found mentally incompetent is on a complaint charging a felony
12offense specified in Section 290, the prosecutor shall determine
13whether the defendant previously has been found mentally
14incompetent to stand trial pursuant to this chapter on a charge of
15a Section 290 offense, or whether the defendant is currently the
16subject of a pending Section 1368 proceeding arising out of a
17charge of a Section 290 offense. If either determination is made,
18the prosecutor shall so notify the court and defendant in writing.
19After this notification, and opportunity for hearing, the court shall
20order that the defendant be delivered by the sheriff to a state
21hospital, as directed by the State Department of State Hospitals,
22or other secure treatment facility for the care and treatment of the
23mentally disordered unless the court makes specific findings on
24the record that an alternative placement would provide more
25appropriate treatment for the defendant and would not pose a
26danger to the health and safety of others.

27(iii) If the action against the defendant who has been found
28mentally incompetent is on a complaint charging a felony offense
29specified in Section 290 and the defendant has been denied bail
30pursuant to subdivision (b) of Section 12 of Article I of the
31California Constitution because the court has found, based upon
32clear and convincing evidence, a substantial likelihood that the
33person’s release would result in great bodily harm to others, the
34court shall order that the defendant be delivered by the sheriff to
35a state hospital for the care and treatment of the mentally
36disordered, as directed by the State Department of State Hospitals,
37unless the court makes specific findings on the record that an
38alternative placement would provide more appropriate treatment
39for the defendant and would not pose a danger to the health and
40safety of others.

P65   1(iv) The clerk of the court shall notify the Department of Justice
2in writing of any finding of mental incompetence with respect to
3a defendant who is subject to clause (ii) or (iii) for inclusion in his
4or her state summary criminal history information.

5(C) Upon the filing of a certificate of restoration to competence,
6the court shall order that the defendant be returned to court in
7accordance with Section 1372. The court shall transmit a copy of
8its order to the community program director or a designee.

9(D) A defendant charged with a violent felony may not be
10delivered to a state hospital or treatment facility pursuant to this
11subdivision unless the state hospital or treatment facility has a
12secured perimeter or a locked and controlled treatment facility,
13and the judge determines that the public safety will be protected.

14(E) For purposes of this paragraph, “violent felony” means an
15offense specified in subdivision (c) of Section 667.5.

16(F) A defendant charged with a violent felony may be placed
17on outpatient status, as specified in Section 1600, only if the court
18finds that the placement will not pose a danger to the health or
19safety of others. If the court places a defendant charged with a
20violent felony on outpatient status, as specified in Section 1600,
21the courtbegin delete mustend deletebegin insert shallend insert serve copies of the placement order on defense
22counsel, the sheriff in the county where the defendant will be
23begin delete placedend deletebegin insert placed,end insert and the district attorney for the county in which the
24violent felony charges are pending against the defendant.

25(2) Prior to making the order directing that the defendant be
26committed to the State Department of State Hospitals or other
27treatment facility or placed on outpatient status, the court shall
28proceed as follows:

29(A) The court shall order the community program director or a
30designee to evaluate the defendant and to submit to the court within
3115 judicial days of the order a written recommendation as to
32whether the defendant should be required to undergo outpatient
33treatment, orbegin insert beend insert committed to the State Department of State
34Hospitals or to any other treatment facility.begin delete Noend deletebegin insert Aend insert person shallbegin insert notend insert
35 be admitted to a state hospital or other treatment facility or placed
36on outpatient status under this section without having been
37evaluated by the community program director or a designee. The
38community program director or designee shall evaluate the
39appropriate placement for the defendant between the State
40Department of State Hospitals, a local county jail treatment facility,
P66   1or the community-based residential treatment system based upon
2guidelines provided by the State Department of State Hospitals.
3If a local county jail treatment facility is selected, the State
4Department of State Hospitals shall provide treatment at the county
5jail treatment facility and reimburse the county jail treatment
6facility for the reasonable costs of the bed during the treatment. If
7the community-based residential treatment system is selected, the
8State Department of State Hospitals shall provide reimbursement
9to the community-based residential treatment system for the cost
10of treatment as negotiated with the State Department of State
11Hospitals. The six-month limitation in Section 1369.1 shall not
12apply to individuals deemed incompetent to stand trial who are
13being treated to restore competency within a county jail treatment
14facility pursuant to this section.

15(B) The court shall hear and determine whether thebegin insert defendant
16lacks capacity to make decisions regarding the administration of
17antipsychotic medication. The court shall consider opinions in the
18reports prepared pursuant to subdivision (a) of Section 1369, as
19applicable to the issue of whether theend insert
defendant lacks capacity to
20make decisions regarding the administration of antipsychotic
21medication, and shall proceed as follows:

22(i) The court shall hear and determine whether any of the
23following is true:

24(I) The defendant lacks capacity to make decisions regarding
25antipsychotic medication, the defendant’s mental disorder requires
26medical treatment with antipsychotic medication, and, if the
27defendant’s mental disorder is not treated with antipsychotic
28medication, it is probable that serious harm to the physical or
29mental health of the patient will result. Probability of serious harm
30to the physical or mental health of the defendant requires evidence
31that the defendant is presently suffering adverse effects to his or
32her physical or mental health, or the defendant has previously
33suffered these effects as a result of a mental disorder and his or
34her condition is substantially deteriorating. The fact that a
35defendant has a diagnosis of a mental disorder does not alone
36establish probability of serious harm to the physical or mental
37health of the defendant.

38(II) The defendant is a danger to others, in that the defendant
39has inflicted, attempted to inflict, or made a serious threat of
40inflicting substantial physical harm on another while in custody,
P67   1or the defendant had inflicted, attempted to inflict, or made a
2serious threat of inflicting substantial physical harm on another
3that resulted in his or her being taken into custody, and the
4defendant presents, as a result of mental disorder or mental defect,
5a demonstrated danger of inflicting substantial physical harm on
6others. Demonstrated danger may be based on an assessment of
7the defendant’s present mental condition, including a consideration
8of past behavior of the defendant within six years prior to the time
9the defendant last attempted to inflict, inflicted, or threatened to
10inflict substantial physical harm on another, and other relevant
11evidence.

12(III) The people have charged the defendant with a serious crime
13against the person or property, involuntary administration of
14antipsychotic medication is substantially likely to render the
15defendant competent to stand trial, the medication is unlikely to
16have side effects that interfere with the defendant’s ability to
17understand the nature of the criminal proceedings or to assist
18counsel in the conduct of a defense in a reasonable manner, less
19intrusive treatments are unlikely to have substantially the same
20results, and antipsychotic medication is in the patient’s best medical
21interest in light of his or her medical condition.

22(ii) If the court finds any of the conditions described in clause
23(i) to be true, the court shall issue an order authorizingbegin delete the treatment
24facility to involuntarily administerend delete
begin insert involuntary administration ofend insert
25 antipsychotic medication to the defendant when and as prescribed
26by the defendant’s treatingbegin delete psychiatrist.end deletebegin insert psychiatrist at any facility
27housing the defendant for purposes of thisend insert
begin insert chapterend insertbegin insert. The order shall
28be valid for no more than one year, pursuant to subparagraph (A)
29of paragraph (7).end insert
The court shall not order involuntary
30administration of psychotropic medication under subclause (III)
31of clause (i) unless the court has first found that the defendant does
32not meet the criteria for involuntary administration of psychotropic
33medication under subclause (I) of clause (i) and does not meet the
34criteria under subclause (II) of clause (i).

35(iii) In all cases, the treating hospital, facility, or program may
36administer medically appropriate antipsychotic medication
37prescribed by a psychiatrist in an emergency as described in
38subdivision (m) of Section 5008 of the Welfare and Institutions
39Code.

P68   1(iv) If the court has determined that the defendant has the
2capacity to make decisions regarding antipsychotic medication,
3and if the defendant, with advice of his or her counsel, consents,
4the court order of commitment shall include confirmation that
5antipsychotic medication may be given to the defendant as
6prescribed by a treating psychiatrist pursuant to the defendant’s
7consent. The commitment order shall also indicate that, if the
8defendant withdraws consent for antipsychotic medication, after
9the treating psychiatrist complies with the provisions of
10subparagraph (C), the defendant shall be returned to court for a
11hearing in accordance with subparagraphs (C) and (D) regarding
12whether antipsychotic medication shall be administered
13involuntarily.

14(v) If the court has determined that the defendant has the
15capacity to make decisions regarding antipsychotic medication
16and if the defendant, with advice from his or her counsel, does not
17consent, the court order for commitment shall indicate that, after
18the treating psychiatrist complies with the provisions of
19subparagraph (C), the defendant shall be returned to court for a
20hearing in accordance with subparagraphs (C) and (D) regarding
21whether antipsychotic medication shall be administered
22involuntarily.

23(vi) Any report made pursuant to paragraph (1) of subdivision
24(b) shall include a description of any antipsychotic medication
25administered to the defendant and its effects and side effects,
26including effects on the defendant’s appearance or behavior that
27would affect the defendant’s ability to understand the nature of
28the criminal proceedings or to assist counsel in the conduct of a
29defense in a reasonable manner. During the time the defendant is
30confined in a state hospital or other treatment facility or placed on
31outpatient status, either the defendant or the people may request
32that the court review any order made pursuant to this subdivision.
33The defendant, to the same extent enjoyed by other patients in the
34state hospital or other treatment facility, shall have the right to
35contact the patients’ rights advocate regarding his or her rights
36under this section.

37(C) If the defendant consented to antipsychotic medication as
38described in clause (iv) of subparagraph (B), but subsequently
39withdraws his or her consent, or, if involuntary antipsychotic
40medication was not ordered pursuant to clause (v) of subparagraph
P69   1(B), and the treating psychiatrist determines that antipsychotic
2medication has become medically necessary and appropriate, the
3treating psychiatrist shall make efforts to obtain informed consent
4from the defendant for antipsychotic medication. If informed
5consent is not obtained from the defendant, and the treating
6psychiatrist is of the opinion that the defendant lacks capacity to
7make decisions regarding antipsychotic medication based on the
8conditions described in subclause (I) or (II) of clause (i) of
9subparagraph (B), the treating psychiatrist shall certify whether
10the lack of capacity and any applicable conditions described above
11exist. That certification shall contain an assessment of the current
12mental status of the defendant and the opinion of the treating
13psychiatrist that involuntary antipsychotic medication has become
14medically necessary and appropriate.

15(D) (i) If the treating psychiatrist certifies that antipsychotic
16 medication has become medically necessary and appropriate
17pursuant to subparagraph (C), antipsychotic medication may be
18administered to the defendant for not more than 21 days, provided,
19however, that, within 72 hours of the certification, the defendant
20is provided a medication review hearing before an administrative
21law judge to be conducted at the facility where the defendant is
22receiving treatment. The treating psychiatrist shall present the case
23for the certification for involuntary treatment and the defendant
24shall be represented by an attorney or a patients’ rights advocate.
25The attorney or patients’ rights advocate shall be appointed to meet
26with the defendant no later than one day prior to the medication
27review hearing to review the defendant’s rights at the medication
28review hearing, discuss the process, answer questions or concerns
29regarding involuntary medication or the hearing, assist the
30defendant in preparing for the hearing and advocating for his or
31 her interests at the hearing, review the panel’s final determination
32following the hearing, advise the defendant of his or her right to
33judicial review of the panel’s decision, and provide the defendant
34with referral information for legal advice on the subject. The
35defendant shall also have the following rights with respect to the
36medication review hearing:

37(I) Tobegin delete beingend deletebegin insert beend insert given timely access to the defendant’s records.

38(II)  To be present at the hearing, unless the defendant waives
39that right.

40(III) To present evidence at the hearing.

P70   1(IV) To question persons presenting evidence supporting
2involuntary medication.

3(V) To make reasonable requests for attendance of witnesses
4on the defendant’s behalf.

5(VI) To a hearing conducted in an impartial and informal
6manner.

7(ii) If the administrative law judge determines that the defendant
8either meets the criteria specified in subclause (I) of clause (i) of
9subparagraph (B), or meets the criteria specified in subclause (II)
10of clause (i) of subparagraph (B), then antipsychotic medication
11may continue to be administered to the defendant for the 21-day
12certification period. Concurrently with the treating psychiatrist’s
13certification, the treating psychiatrist shall file a copy of the
14certification and a petition with the court for issuance of an order
15to administer antipsychotic medication beyond the 21-day
16certification period. For purposes of this subparagraph, the treating
17psychiatrist shall not be required to pay or deposit any fee for the
18filing of the petition or other document or paper related to the
19petition.

20(iii) If the administrative law judge disagrees with the
21certification, medication may not be administered involuntarily
22until the court determines that antipsychotic medication should be
23administered pursuant to this section.

24(iv) The court shall provide notice to the prosecuting attorney
25and to the attorney representing the defendant, and shall hold a
26hearing, no later than 18 days from the date of the certification, to
27determine whether antipsychotic medication should be ordered
28beyond the certification period.

29(v) If, as a result of the hearing, the court determines that
30antipsychotic medication should be administered beyond the
31 certification period, the court shall issue an order authorizing the
32administration of that medication.

33(vi) The court shall render its decision on the petition and issue
34its order no later than three calendar days after the hearing and, in
35any event, no later than the expiration of the 21-day certification
36period.

begin insert

37(vii) If the administrative law judge upholds the certification
38pursuant to clause (ii), the court may, for a period not to exceed
3914 days, extend the certification and continue the hearing pursuant
40to stipulation between the parties or upon a finding of good cause.
P71   1In determining good cause, the court may review the petition filed
2with the court, the administrative law judge’s order, and any
3additional testimony needed by the court to determine if it is
4appropriate to continue medication beyond the 21-day certification
5and for a period of up to 14 days.

end insert
begin insert

6(viii) The district attorney, county counsel, or representative of
7any facility where a defendant found incompetent to stand trial is
8committed may petition the court for an order to administer
9involuntary medication pursuant to the criteria set forth in
10subclauses (II) and (III) of clause (i) of subparagraph (B). The
11order is reviewable as provided in paragraph (7).

end insert

12(3) When the court orders that the defendant be committed to
13the State Department of State Hospitals or other public or private
14treatment facility, the court shall provide copies of the following
15documents prior to the admission of the defendant to the State
16Department of State Hospitals or other treatment facility where
17the defendant is to be committed:

18(A) The commitment order, including a specification of the
19charges.

20(B) A computation or statement setting forth the maximum term
21of commitment in accordance with subdivision (c).

22(C) A computation or statement setting forth the amount of
23credit for time served, if any, to be deducted from the maximum
24term of commitment.

25(D) State summary criminal history information.

26(E) Any arrest reports prepared by the police department or
27other law enforcement agency.

28(F) Any court-ordered psychiatric examination or evaluation
29reports.

30(G) The community program director’s placement
31recommendation report.

32(H) Records of any finding of mental incompetence pursuant
33to this chapter arising out of a complaint charging a felony offense
34specified in Section 290 or any pending Section 1368 proceeding
35arising out of a charge of a Section 290 offense.

36(I) Any medical records.

37(4) When the defendant is committed to a treatment facility
38pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
39court makes the findings specified in clause (ii) or (iii) of
40subparagraph (B) of paragraph (1) to assign the defendant to a
P72   1treatment facility other than a state hospital or other secure
2treatment facility, the court shall order that notice be given to the
3appropriate law enforcement agency or agencies having local
4jurisdiction at the site of the placement facility of any finding of
5mental incompetence pursuant to this chapter arising out of a
6charge of a Section 290 offense.

7(5) When directing that the defendant be confined in a state
8hospital pursuant to this subdivision, the court shall commit the
9patient to the State Department of State Hospitals.

10(6) (A) If the defendant is committed or transferred to the State
11Department of State Hospitals pursuant to this section, the court
12may, upon receiving the written recommendation of the medical
13director of the state hospital and the community program director
14that the defendant be transferred to a public or private treatment
15facility approved by the community program director, order the
16defendant transferred to that facility. If the defendant is committed
17or transferred to a public or private treatment facility approved by
18the community program director, the court may, upon receiving
19the written recommendation of the community program director,
20transfer the defendant to the State Department of State Hospitals
21or to another public or private treatment facility approved by the
22community program director. In the event of dismissal of the
23criminal charges before the defendant recovers competence, the
24person shall be subject to the applicable provisions of the
25Lanterman-Petris-Short Act (Part 1 (commencing with Section
265000) of Division 5 of the Welfare and Institutions Code). If either
27the defendant or the prosecutor chooses to contest either kind of
28order of transfer, a petition may be filed in the court for a hearing,
29which shall be held if the court determines that sufficient grounds
30exist. At the hearing, the prosecuting attorney or the defendant
31may present evidence bearing on the order of transfer. The court
32shall use the same standards as are used in conducting probation
33revocation hearings pursuant to Section 1203.2.

34Prior to making an order for transfer under this section, the court
35shall notify the defendant, the attorney of record for the defendant,
36the prosecuting attorney, and the community program director or
37a designee.

38(B) If the defendant is initially committed to the State
39Department of State Hospitals or secure treatment facility pursuant
40to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
P73   1subsequently transferred to any other facility, copies of the
2documents specified in paragraph (3) shall be taken with the
3defendant to each subsequent facility to which the defendant is
4transferred. The transferring facility shall also notify the appropriate
5law enforcement agency or agencies having local jurisdiction at
6the site of the new facility that the defendant is a person subject
7to clause (ii) or (iii) of subparagraph (B) of paragraph (1).

8(7) begin insert(A)end insertbegin insertend insert An order by the court authorizing involuntary
9medication of the defendant shall be valid for no more than one
10year. The court shall review the orderbegin delete six months after the order
11was madeend delete
begin insert at the time of the review of the initial report and the
12six-month progress reports pursuant to paragraph (1) of
13subdivision (b)end insert
to determine if the grounds for the authorization
14remain. In the review, the court shall consider the reports of the
15treating psychiatrist or psychiatrists and the defendant’s patients’
16rights advocate or attorney. The court may require testimony from
17the treating psychiatrist or psychiatrists and the patients’ rights
18advocate or attorney, if necessary. The court may continue the
19order authorizing involuntary medication for up to another six
20months, or vacate the order, or make any other appropriate order.

begin insert

21(B) Within 60 days before the expiration of the one-year
22involuntary medication order, the district attorney, county counsel,
23or representative of any facility where a defendant found
24 incompetent to stand trial is committed may petition the committing
25court for a renewal, subject to the same conditions and
26requirements as in subparagraph (A). The petition shall include
27the basis for involuntary medication set forth in clause (i) of
28subparagraph (B) of paragraph (2). Notice of the petition shall
29be provided to the defendant, the defendant’s attorney, and the
30district attorney. The court shall hear and determine whether the
31defendant continues to meet the criteria set forth in clause (i) of
32subparagraph (B) of paragraph (2). The hearing on any petition
33to renew an order for involuntary medication shall be conducted
34prior to the expiration of the current order.

end insert

35(b) (1) Within 90 days of a commitment made pursuant to
36subdivision (a), the medical director of the state hospital or other
37treatment facility to which the defendant is confined shall make a
38written report to the court and the community program director
39for the county or region of commitment, or a designee, concerning
40the defendant’s progress toward recovery of mentalbegin delete competence.end delete
P74   1begin insert competence and whether the administration of antipsychotic
2medication remains necessary.end insert
If the defendant is on outpatient
3status, the outpatient treatment staff shall make a written report to
4the community program director concerning the defendant’s
5progress toward recovery of mental competence. Within 90 days
6of placement on outpatient status, the community program director
7shall report to the court on this matter. If the defendant has not
8recovered mental competence, but the report discloses a substantial
9likelihood that the defendant will regain mental competence in the
10foreseeable future, the defendant shall remain in the state hospital
11or other treatment facility or on outpatient status. Thereafter, at
12six-month intervals or until the defendant becomes mentally
13competent, if the defendant is confined in a treatment facility, the
14medical director of the hospital or person in charge of the facility
15shall report in writing to the court and the community program
16director or a designee regarding the defendant’s progress toward
17recovery of mentalbegin delete competence.end deletebegin insert competence and whether the
18administration of antipsychotic medication remains necessary.end insert
If
19the defendant is on outpatient status, after the initial 90-day report,
20the outpatient treatment staff shall report to the community program
21director on the defendant’s progress toward recovery, and the
22community program director shall report to the court on this matter
23at six-month intervals. A copy of these reports shall be provided
24to the prosecutor and defense counsel by the court.begin delete Ifend delete

25begin insert(A)end insertbegin insertend insertbegin insertIfend insert the report indicates that there is no substantial likelihood
26that the defendant will regain mental competence in the foreseeable
27future, the committing court shall order the defendant to be returned
28to the court for proceedings pursuant to paragraph (2) of
29subdivisionbegin delete (c).end deletebegin insert (c) end insertbegin insertno later than 10 days following receipt of the
30report.end insert
The court shall transmit a copy of its order to the
31community program director or a designee.

begin insert

32(B) If the report indicates that there is no substantial likelihood
33that the defendant will regain mental competence in the foreseeable
34future, the medical director of the state hospital or other treatment
35facility to which the defendant is confined shall do both of the
36following:

end insert
begin insert

37(i) Promptly notify and provide a copy of the report to the
38defense counsel and the district attorney.

end insert
begin insert

P75   1(ii) Provide a separate notification, in compliance with
2 applicable privacy laws, to the committing county’s sheriff that
3transportation will be needed for the patient.

end insert

4(2) If the court has issued an order authorizing the treating
5facility to involuntarily administer antipsychotic medication to the
6defendant, the reports madebegin delete at six-month intervalsend deletebegin insert pursuant to
7paragraph (1)end insert
concerning the defendant’s progress toward
8regaining competency shall also consider the issue of involuntary
9medication. Each report shall include, but is not limited to, all the
10following:

11(A) Whether or not the defendant has the capacity to make
12decisions concerning antipsychotic medication.

13(B) If the defendant lacks capacity to make decisions concerning
14antipsychotic medication, whether the defendant risks serious harm
15to his or her physical or mental health if not treated with
16antipsychotic medication.

17(C) Whether or not the defendant presents a danger to others if
18he or she is not treated with antipsychotic medication.

19(D) Whether the defendant has a mental illness for which
20medications are the only effective treatment.

21(E) Whether there are any side effects from the medication
22currently being experienced by the defendant that would interfere
23with the defendant’s ability to collaborate with counsel.

24(F) Whether there are any effective alternatives to medication.

25(G) How quickly the medication is likely to bring the defendant
26to competency.

27(H) Whether the treatment plan includes methods other than
28medication to restore the defendant to competency.

29(I) A statement, if applicable, that no medication is likely to
30restore the defendant to competency.

31(3) After reviewing the reports, the court shall determine whether
32or not grounds for the order authorizing involuntary administration
33of antipsychotic medication still exist and shall do one of the
34following:

35(A) If the original grounds for involuntary medication still exist,
36the order authorizing the treating facility to involuntarily administer
37antipsychotic medication to the defendant shall remain in effect.

38(B) If the original grounds for involuntary medication no longer
39exist, and there is no other basis for involuntary administration of
P76   1antipsychotic medication, the order for the involuntary
2administration of antipsychotic medication shall be vacated.

3(C) If the original grounds for involuntary medication no longer
4exist, and the report states that there is another basis for involuntary
5administration of antipsychotic medication, the court shall set a
6hearing within 21 days to determine whether the order for the
7involuntary administration of antipsychotic medication shall be
8vacated or whether a new order for the involuntary administration
9of antipsychotic medication shall be issued. The hearing shall
10proceed as set forth in subparagraph (B) of paragraph (2) of
11subdivision (a).

12(4) Any defendant who has been committed or has been on
13outpatient status for 18 months and is still hospitalized or on
14outpatient status shall be returned to the committing court where
15a hearing shall be held pursuant to the procedures set forth in
16Section 1369. The court shall transmit a copy of its order to the
17community program director or a designee.

18(5) If it is determined by the court that no treatment for the
19defendant’s mental impairment is being conducted, the defendant
20shall be returned to the committing court. The court shall transmit
21a copy of its order to the community program director or a
22designee.

23(6) At each review by the court specified in this subdivision,
24the court shall determine if the security level of housing and
25treatment is appropriate and may make an order in accordance
26with its determination. If the court determines that the defendant
27shall continue to be treated in the state hospital or on an outpatient
28basis, the court shall determine issues concerning administration
29of antipsychotic medication, as set forth in subparagraph (B) of
30paragraph (2) of subdivision (a).

31(c) (1) At the end of three years 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 information, indictment, or misdemeanor complaint,begin insert or the
35maximum term of imprisonment provided by law for a violation
36of probation or mandatory supervision,end insert
whichever is shorter,begin insert but
37no later than 90 days prior to the expiration of the defendant’s
38term of commitment,end insert
a defendant who has not recovered mental
39competence shall be returned to the committing court. The court
P77   1shall notify the community program director or a designee of the
2return and of any resulting court orders.

3(2) Whenever any defendant is returned to the court pursuant
4to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
5subdivision and it appears to the court that the defendant is gravely
6disabled, as defined in subparagraph (B) of paragraph (1) of
7subdivision (h) of Section 5008 of the Welfare and Institutions
8Code, the court shall order the conservatorship investigator of the
9county of commitment of the defendant to initiate conservatorship
10proceedings for the defendant pursuant to Chapter 3 (commencing
11with Section 5350) of Part 1 of Division 5 of the Welfare and
12Institutions Code. Any hearings required in the conservatorship
13proceedings shall be held in the superior court in the county that
14ordered the commitment. The court shall transmit a copy of the
15order directing initiation of conservatorship proceedings to the
16community program director or a designee, the sheriff and the
17district attorney of the county in which criminal charges are
18pending, and the defendant’s counsel of record. The court shall
19notify the community program director or a designee, the sheriff
20and district attorney of the county in which criminal charges are
21pending, and the defendant’s counsel of record of the outcome of
22the conservatorship proceedings.

23(3) If a change in placement is proposed for a defendant who
24is committed pursuant to subparagraph (B) of paragraph (1) of
25subdivision (h) of Section 5008 of the Welfare and Institutions
26Code, the court shall provide notice and an opportunity to be heard
27with respect to the proposed placement of the defendant to the
28sheriff and the district attorney of the county in whichbegin insert theend insert criminal
29chargesbegin insert or revocation proceedingsend insert are pending.

30(4) If the defendant is confined in a treatment facility, a copy
31of any report to the committing court regarding the defendant’s
32progress toward recovery of mental competence shall be provided
33by the committing court to the prosecutor and to the defense
34counsel.

35(d) begin deleteThe end deletebegin insertWith the exception of proceedings alleging a violation
36of mandatory supervision, theend insert
begin insert end insertcriminal action remains subject to
37dismissal pursuant to Section 1385. If the criminal action is
38dismissed, the court shall transmit a copy of the order of dismissal
39to the community program director or a designee.begin insert In a proceeding
40alleging a violation of mandatory supervision, if the person is not
P78   1placed under a conservatorship as described in paragraph (2) of
2subdivision (c), or if a conservatorship is terminated, the court
3shall reinstate mandatory supervision and may modify the terms
4and conditions of supervision to include appropriate mental health
5treatment or refer the matter to a local mental health court, reentry
6court, or other collaborative justice court available for improving
7the mental health of the defendant.end insert

8(e) If the criminalbegin delete chargeend deletebegin insert actionend insert against the defendant is
9dismissed, the defendant shall be released from any commitment
10ordered under this section, but without prejudice to the initiation
11of any proceedings that may be appropriate under the
12Lanterman-Petris-Shortbegin delete Act, Partend deletebegin insert Act (Partend insert 1 (commencing with
13Section 5000) of Division 5 of the Welfare and Institutionsbegin delete Code.end delete
14begin insert Code).end insert

15(f) As used in this chapter, “community program director” means
16the person, agency, or entity designated by the State Department
17of State Hospitals pursuant to Section 1605 of this code and Section
184360 of the Welfare and Institutions Code.

19(g) For the purpose of this section, “secure treatment facility”
20shall not include, except for state mental hospitals, state
21developmental centers, and correctional treatment facilities, any
22facility licensed pursuant to Chapter 2 (commencing with Section
231250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
243.2 (commencing with Section 1569) of, Division 2 of the Health
25and Safety Code, or any community board and care facility.

26(h) Nothing in this section shall preclude a defendant from filing
27a petition for habeas corpus to challenge the continuing validity
28of an order authorizing a treatment facility or outpatient program
29to involuntarily administer antipsychotic medication to a person
30being treated as incompetent to stand trial.

31

SEC. 8.  

Section 1370.01 of the Penal Code is amended to read:

32

1370.01.  

(a) (1) If the defendant is found mentally competent,
33the criminal process shall resume, the trial on the offense charged
34shall proceed, and judgment may be pronounced. If the defendant
35is found mentally incompetent, the trial, judgment, or hearing on
36the alleged violation shall be suspended until the person becomes
37mentally competent, and the court shall order that (A) in the
38meantime, the defendant be delivered by the sheriff to an available
39public or private treatment facility approved by the county mental
40health director that will promote the defendant’s speedy restoration
P79   1to mental competence, or placed on outpatient status as specified
2in this section, and (B) upon the filing of a certificate of restoration
3to competence, the defendant be returned to court in accordance
4with Section 1372. The court shall transmit a copy of its order to
5the county mental health director or his or her designee.

6(2) Prior to making the order directing that the defendant be
7confined in a treatment facility or placed on outpatient status, the
8court shall proceed as follows:

9(A) The court shall order the county mental health director or
10his or her designee to evaluate the defendant and to submit to the
11court within 15 judicial days of the order a written recommendation
12as to whether the defendant should be required to undergo
13outpatient treatment, or committed to a treatment facility. No
14person shall be admitted to a treatment facility or placed on
15outpatient status under this section without having been evaluated
16by the county mental health director or his or her designee. No
17person shall be admitted to a state hospital under this section unless
18the county mental health director finds that there is no less
19restrictive appropriate placement available and the county mental
20health director has a contract with the State Department of State
21Hospitals for these placements.

22(B) The court shall hear and determine whether the defendant,
23with advice of his or her counsel, consents to the administration
24of antipsychotic medication, and shall proceed as follows:

25(i) If the defendant, with advice of his or her counsel, consents,
26the court order of commitment shall include confirmation that
27antipsychotic medication may be given to the defendant as
28prescribed by a treating psychiatrist pursuant to the defendant’s
29consent. The commitment order shall also indicate that, if the
30defendant withdraws consent for antipsychotic medication, after
31the treating psychiatrist complies with the provisions of
32subparagraph (C), the defendant shall be returned to court for a
33hearing in accordance with this subdivision regarding whether
34antipsychotic medication shall be administered involuntarily.

35(ii) If the defendant does not consent to the administration of
36medication, the court shall hear and determine whether any of the
37following is true:

38(I) The defendant lacks capacity to make decisions regarding
39antipsychotic medication, the defendant’s mental disorder requires
40medical treatment with antipsychotic medication, and, if the
P80   1defendant’s mental disorder is not treated with antipsychotic
2medication, it is probable that serious harm to the physical or
3mental health of the patient will result. Probability of serious harm
4to the physical or mental health of the defendant requires evidence
5that the defendant is presently suffering adverse effects to his or
6her physical or mental health, or the defendant has previously
7suffered these effects as a result of a mental disorder and his or
8her condition is substantially deteriorating. The fact that a
9defendant has a diagnosis of a mental disorder does not alone
10establish probability of serious harm to the physical or mental
11health of the defendant.

12(II) The defendant is a danger to others, in that the defendant
13has inflicted, attempted to inflict, or made a serious threat of
14inflicting substantial physical harm on another while in custody,
15or the defendant had inflicted, attempted to inflict, or made a
16serious threat of inflicting substantial physical harm on another
17that resulted in his or her being taken into custody, and the
18defendant presents, as a result of mental disorder or mental defect,
19a demonstrated danger of inflicting substantial physical harm on
20others. Demonstrated danger may be based on an assessment of
21the defendant’s present mental condition, including a consideration
22of past behavior of the defendant within six years prior to the time
23the defendant last attempted to inflict, inflicted, or threatened to
24inflict substantial physical harm on another, and other relevant
25evidence.

26(III) The people have charged the defendant with a serious crime
27against the person or property; involuntary administration of
28antipsychotic medication is substantially likely to render the
29defendant competent to stand trial; the medication is unlikely to
30have side effects that interfere with the defendant’s ability to
31understand the nature of the criminal proceedings or to assist
32counsel in the conduct of a defense in a reasonable manner; less
33intrusive treatments are unlikely to have substantially the same
34results; and antipsychotic medication is in the patient’s best medical
35interest in light of his or her medical condition.

36(iii) If the court finds any of the conditions described in clause
37(ii) to be true, the court shall issue an order authorizing the
38 treatment facility to involuntarily administer antipsychotic
39medication to the defendant when and as prescribed by the
40defendant’s treating psychiatrist. The court shall not order
P81   1involuntary administration of psychotropic medication under
2 subclause (III) of clause (ii) unless the court has first found that
3the defendant does not meet the criteria for involuntary
4administration of psychotropic medication under subclause (I) of
5clause (ii) and does not meet the criteria under subclause (II) of
6clause (ii).

7(iv) In all cases, the treating hospital, facility, or program may
8administer medically appropriate antipsychotic medication
9prescribed by a psychiatrist in an emergency as described in
10subdivision (m) of Section 5008 of the Welfare and Institutions
11Code.

12(v) Any report made pursuant to subdivision (b) shall include
13a description of any antipsychotic medication administered to the
14defendant and its effects and side effects, including effects on the
15defendant’s appearance or behavior that would affect the
16defendant’s ability to understand the nature of the criminal
17proceedings or to assist counsel in the conduct of a defense in a
18reasonable manner. During the time the defendant is confined in
19a state hospital or other treatment facility or placed on outpatient
20status, either the defendant or the people may request that the court
21review any order made pursuant to this subdivision. The defendant,
22to the same extent enjoyed by other patients in the state hospital
23or other treatment facility, shall have the right to contact the
24patients’ rights advocate regarding his or her rights under this
25section.

26(C) If the defendant consented to antipsychotic medication as
27described in clause (i) of subparagraph (B), but subsequently
28withdraws his or her consent, or, if involuntary antipsychotic
29medication was not ordered pursuant to clause (ii) of subparagraph
30(B), and the treating psychiatrist determines that antipsychotic
31medication has become medically necessary and appropriate, the
32treating psychiatrist shall make efforts to obtain informed consent
33from the defendant for antipsychotic medication. If informed
34consent is not obtained from the defendant, and the treating
35psychiatrist is of the opinion that the defendant lacks capacity to
36make decisions regarding antipsychotic medication as specified
37in subclause (I) of clause (ii) of subparagraph (B), or that the
38defendant is a danger to others as specified in subclause (II) of
39clause (ii) of subparagraph (B), the committing court shall be
40notified of this, including an assessment of the current mental
P82   1status of the defendant and the opinion of the treating psychiatrist
2that involuntary antipsychotic medication has become medically
3necessary and appropriate. The court shall provide copies of the
4report to the prosecuting attorney and to the attorney representing
5the defendant and shall set a hearing to determine whether
6involuntary antipsychotic medication should be ordered in the
7manner described in subparagraph (B).

8(3) When the court, after considering the placement
9recommendation of the county mental health director required in
10paragraph (2), orders that the defendant be confined in a public or
11private treatment facility, the court shall provide copies of the
12following documents which shall be taken with the defendant to
13the treatment facility where the defendant is to be confined:

14(A) The commitment order, including a specification of the
15charges.

16(B) A computation or statement setting forth the maximum term
17of commitment in accordance with subdivision (c).

18(C) A computation or statement setting forth the amount of
19credit for time served, if any, to be deducted from the maximum
20term of commitment.

21(D) State summary criminal history information.

22(E) Any arrest reports prepared by the police department or
23other law enforcement agency.

24(F) Any court-ordered psychiatric examination or evaluation
25reports.

26(G) The county mental health director’s placement
27recommendation report.

28(4) A person subject to commitment under this section may be
29placed on outpatient status under the supervision of the county
30mental health director or his or her designee by order of the court
31in accordance with the procedures contained in Title 15
32(commencing with Section 1600) except that where the term
33“community program director” appears the term “county mental
34health director” shall be substituted.

35(5) If the defendant is committed or transferred to a public or
36private treatment facility approved by the county mental health
37director, the court may, upon receiving the written recommendation
38of the county mental health director, transfer the defendant to
39another public or private treatment facility approved by the county
40mental health director. In the event of dismissal of the criminal
P83   1charges before the defendant recovers competence, the person
2shall be subject to the applicable provisions of Part 1 (commencing
3with Section 5000) of Division 5 of the Welfare and Institutions
4Code. Where either the defendant or the prosecutor chooses to
5contest the order of transfer, a petition may be filed in the court
6for a hearing, which shall be held if the court determines that
7sufficient grounds exist. At the hearing, the prosecuting attorney
8or the defendant may present evidence bearing on the order of
9transfer. The court shall use the same standards as are used in
10conducting probation revocation hearings pursuant to Section
111203.2.

12Prior to making an order for transfer under this section, the court
13shall notify the defendant, the attorney of record for the defendant,
14the prosecuting attorney, and the county mental health director or
15his or her designee.

16(b) Within 90 days of a commitment made pursuant to
17subdivision (a), the medical director of the treatment facility to
18which the defendant is confined shall make a written report to the
19court and the county mental health director or his or her designee,
20concerning the defendant’s progress toward recovery of mental
21competence. Where the defendant is on outpatient status, the
22outpatient treatment staff shall make a written report to the county
23mental health director concerning the defendant’s progress toward
24recovery of mental competence. Within 90 days of placement on
25outpatient status, the county mental health director shall report to
26the court on this matter. If the defendant has not recovered mental
27competence, but the report discloses a substantial likelihood that
28the defendant will regain mental competence in the foreseeable
29future, the defendant shall remain in the treatment facility or on
30outpatient status. Thereafter, at six-month intervals or until the
31defendant becomes mentally competent, where the defendant is
32confined in a treatment facility, the medical director of the hospital
33or person in charge of the facility shall report in writing to the
34court and the county mental health director or a designee regarding
35the defendant’s progress toward recovery of mental competence.
36Where the defendant is on outpatient status, after the initial 90-day
37report, the outpatient treatment staff shall report to the county
38mental health director on the defendant’s progress toward recovery,
39and the county mental health director shall report to the court on
40this matter at six-month intervals. A copy of these reports shall be
P84   1provided to the prosecutor and defense counsel by the court. If the
2report indicates that there is no substantial likelihood that the
3defendant will regain mental competence in the foreseeable future,
4the committing court shall order the defendant to be returned to
5the court for proceedings pursuant to paragraph (2) of subdivision
6(c). The court shall transmit a copy of its order to the county mental
7health director or his or her designee.

8(c) (1) If, at the end of one year from the date of commitment
9or a period of commitment equal to the maximum term of
10imprisonment provided by law for the most serious offense charged
11in the misdemeanor complaint, whichever is shorter, the defendant
12has not recovered mental competence, the defendant shall be
13returned to the committing court. The court shall notify the county
14mental health director or his or her designee of the return and of
15any resulting court orders.

16(2) Whenever any defendant is returned to the court pursuant
17to subdivision (b) or paragraph (1) of this subdivision and it appears
18to the court that the defendant is gravely disabled, as defined in
19subparagraph (A) of paragraph (1) of subdivision (h) of Section
205008 of the Welfare and Institutions Code, the court shall order
21the conservatorship investigator of the county of commitment of
22the defendant to initiate conservatorship proceedings for the
23defendant pursuant to Chapter 3 (commencing with Section 5350)
24of Part 1 of Division 5 of the Welfare and Institutions Code. Any
25hearings required in the conservatorship proceedings shall be held
26in the superior court in the county that ordered the commitment.
27The court shall transmit a copy of the order directing initiation of
28conservatorship proceedings to the county mental health director
29or his or her designee and shall notify the county mental health
30director or his or her designee of the outcome of the proceedings.

31(d) The criminal action remains subject to dismissal pursuant
32to Section 1385. If the criminal action is dismissed, the court shall
33transmit a copy of the order of dismissal to the county mental
34health director or his or her designee.

35(e) If the criminal charge against the defendant is dismissed,
36the defendant shall be released from any commitment ordered
37under this section, but without prejudice to the initiation of any
38proceedings which may be appropriate under Part 1 (commencing
39with Section 5000) of Division 5 of the Welfare and Institutions
40Code.

P85   1

SEC. 9.  

Section 1370.02 is added to the Penal Code, to read:

2

1370.02.  

(a) If the defendant is found mentally competent
3during a postrelease community supervision or parole revocation
4hearing, the revocation proceedings shall resume. The formal
5hearing on the revocation shall occur within a reasonable time
6after resumption of the proceedings, but in no event may the
7defendant be detained in custody for over 180 days from the date
8of arrest.

9(b) If the defendant is found mentally incompetent, the court
10shallbegin delete have discretion to order any of the following:end deletebegin insert dismiss the
11pending revocation matter and return the defendant to supervision.
12If the revocation matter is dismissed pursuant to this subdivision,
13the court may, using the least restrictive option to meet the mental
14health needs of the defendant, also do any of the following:end insert

begin delete

15(1) (A) If the court determines that there is a reasonable
16likelihood that the defendant may be restored to competency and
17returned to court to face the revocation proceedings no later than
18180 days from the date of the arrest of the defendant, the court
19may order the defendant to undergo treatment as authorized by
20Section 1370 or 1370.1 for restoring the defendant to competency,
21except that:

22(i) The initial written progress report due to the court pursuant
23to subdivision (b) of Section 1370 shall be provided to the court
24within 45 days and subsequent progress reports shall be provided
25to the court at two-month intervals.

26(ii) The initial written progress report due to the court under
27subdivision (b) of Section 1370.1 shall be provided to the court
28within 45 days of the commitment and subsequent progress reports
29shall be provided within 90 days.

30(B) If the defendant is restored to competency within 180 days
31of arrest, the defendant shall be returned to court under the
32procedures required by Section 1372.

33(C) If the defendant is not restored to competency within 180
34days of arrest, the defendant shall be returned to court and the court
35shall proceed under paragraph (2) or (3).

36(2) Dismiss the pending revocation matter and return the
37defendant to supervision. If the matter is dismissed pursuant to
38this paragraph, the court may also:

39(A)

end delete

P86   1begin insert(1)end insert Modify the terms and conditions of supervision to include
2appropriate mental health treatment.

begin delete

3(B) Refer the matter to the public guardian of the county of
4commitment to initiate conservatorship proceedings.

end delete
begin delete

5(3)

end delete

6begin insert(2)end insert Refer the matter to any local mental health court, reentry
7court, or other collaborative justice court available for improving
8the mental health of the defendant.

begin insert

9(3) Refer the matter to the public guardian of the county of
10commitment to initiate conservatorship proceedings pursuant to
11Sections 5352 and 5352.5 of the Welfare and Institutions Code.
12The public guardian shall investigate all available alternatives to
13conservatorship pursuant to Section 5354 of the Welfare and
14Institutions Code. The court shall order the matter to the public
15guardian pursuant to this paragraph only if there are no other
16reasonable alternatives to the establishment of a conservatorship
17to meet the mental health needs of the defendant.

end insert

18(c) begin insert(1)end insertbegin insertend insert Notwithstanding any other law, if a person subject to
19parole pursuant to Section 3000.1 or paragraph (4) of subdivision
20(b) of Section 3000 is found mentally incompetent, the court shall
21order thebegin delete personend deletebegin insert paroleeend insert to undergo treatment pursuant to Section
221370 for restoring the person to competency, except that if the
23begin delete personend deletebegin insert paroleeend insert is not restored to competency within the maximum
24period of confinement and the court dismisses the revocation, the
25court shall return thebegin delete personend deletebegin insert paroleeend insert to parolebegin delete supervision, refer
26the matter to the public guardian of the county of commitment to
27initiate conservatorship proceedings, or refer the person to other
28appropriate mental health treatment based upon any
29recommendations by the parole agent and mental health experts.end delete

30begin insert supervision.end insert

begin insert

31(2) If the parolee is returned to parole supervision, the court
32may, using the least restrictive option to meet the mental health
33needs of the parolee, do any of the following:

end insert
begin insert

34(A) Modify the terms and conditions of parole to include
35appropriate mental health treatment.

end insert
begin insert

36(B) Refer the matter to any local mental health court, reentry
37court, or other collaborative justice court available for improving
38the mental health of the parolee.

end insert
begin insert

39(C) Refer the matter to the public guardian of the county of
40commitment to initiate conservatorship proceedings pursuant to
P87   1Sections 5352 and 5352.5 of the Welfare and Institutions Code.
2The public guardian shall investigate all available alternatives to
3conservatorship pursuant to Section 5354 of the Welfare and
4Institutions Code. The court shall order the matter to the public
5guardian pursuant to this subparagraph only if there are no other
6reasonable alternatives to the establishment of a conservatorship
7to meet the mental health needs of the parolee.

end insert
begin insert

8(d) If a conservatorship is established for a defendant or parolee
9pursuant to subdivision (b) or (c), the county or the Department
10of Corrections and Rehabilitation shall not compassionately
11release the defendant or parolee or otherwise cause the termination
12of his or her supervision or parole based on the establishment of
13that conservatorship.

end insert
14

SEC. 10.  

Section 1370.1 of the Penal Code is amended to read:

15

1370.1.  

(a) (1) (A) If the defendant is found mentally
16competent, the criminal process shall resume, the trial on the
17offense charged or hearing on the alleged violation shall proceed,
18and judgment may be pronounced.

19(B) If the defendant is found mentally incompetent and is
20developmentally disabled, the trial or judgment shall be suspended
21until the defendant becomes mentally competent.

22(i) Except as provided in clause (ii) or (iii), the court shall
23consider a recommendation for placement, which recommendation
24shall be made to the court by the director of a regional center or
25designee. In the meantime, the court shall order that the mentally
26incompetent defendant be delivered by the sheriff or other person
27designated by the court to a state hospital or developmental center
28for the care and treatment of the developmentally disabled or any
29other available residential facility approved by the director of a
30regional center for the developmentally disabled established under
31Division 4.5 (commencing with Section 4500) of the Welfare and
32Institutions Code as will promote the defendant’s speedy attainment
33of mental competence, or be placed on outpatient status pursuant
34to the provisions of Section 1370.4 and Title 15 (commencing with
35Section 1600).

36(ii) However, if the action against the defendant who has been
37found mentally incompetent is on a complaint charging a felony
38offense specified in Section 290, the prosecutor shall determine
39whether the defendant previously has been found mentally
40incompetent to stand trial pursuant to this chapter on a charge of
P88   1a Section 290 offense, or whether the defendant is currently the
2subject of a pending Section 1368 proceeding arising out of a
3charge of a Section 290 offense. If either determination is made,
4the prosecutor shall so notify the court and defendant in writing.
5After this notification, and opportunity for hearing, the court shall
6order that the defendant be delivered by the sheriff to a state
7hospital or other secure treatment facility for the care and treatment
8of the developmentally disabled unless the court makes specific
9findings on the record that an alternative placement would provide
10more appropriate treatment for the defendant and would not pose
11a danger to the health and safety of others.

12(iii) If the action against the defendant who has been found
13mentally incompetent is on a complaint charging a felony offense
14specified in Section 290 and the defendant has been denied bail
15pursuant to subdivision (b) of Section 12 of Article I of the
16California Constitution because the court has found, based upon
17clear and convincing evidence, a substantial likelihood that the
18person’s release would result in great bodily harm to others, the
19court shall order that the defendant be delivered by the sheriff to
20a state hospital for the care and treatment of the developmentally
21disabled unless the court makes specific findings on the record
22that an alternative placement would provide more appropriate
23treatment for the defendant and would not pose a danger to the
24health and safety of others.

25(iv) The clerk of the court shall notify the Department of Justice
26in writing of any finding of mental incompetence with respect to
27a defendant who is subject to clause (ii) or (iii) for inclusion in his
28or her state summary criminal history information.

29(C) Upon becoming competent, the court shall order that the
30defendant be returned to the committing court pursuant to the
31procedures set forth in paragraph (2) of subdivision (a) of Section
321372 or by another person designated by the court. The court shall
33further determine conditions under which the person may be absent
34from the placement for medical treatment, social visits, and other
35similar activities. Required levels of supervision and security for
36these activities shall be specified.

37(D) The court shall transmit a copy of its order to the regional
38center director or designee and to the Director of Developmental
39Services.

P89   1(E) A defendant charged with a violent felony may not be placed
2in a facility or delivered to a state hospital, developmental center,
3or residential facility pursuant to this subdivision unless the facility,
4state hospital, developmental center, or residential facility has a
5secured perimeter or a locked and controlled treatment facility,
6and the judge determines that the public safety will be protected.

7(F) For purposes of this paragraph, “violent felony” means an
8offense specified in subdivision (c) of Section 667.5.

9(G) A defendant charged with a violent felony may be placed
10on outpatient status, as specified in Section 1370.4 or 1600, only
11if the court finds that the placement will not pose a danger to the
12health or safety of others.

13(H) As used in this section, “developmental disability” means
14a disability that originates before an individual attains 18 years of
15age, continues, or can be expected to continue, indefinitely and
16constitutes a substantial handicap for the individual, and shall not
17include other handicapping conditions that are solely physical in
18nature. As defined by the Director of Developmental Services, in
19consultation with the Superintendent of Public Instruction, this
20term shall include intellectual disability, cerebral palsy, epilepsy,
21and autism. This term shall also include handicapping conditions
22found to be closely related to intellectual disability or to require
23treatment similar to that required for individuals with an intellectual
24disability, but shall not include other handicapping conditions that
25are solely physical in nature.

26(2) Prior to making the order directing that the defendant be
27confined in a state hospital, developmental center, or other
28residential facility, or be placed on outpatient status, the court shall
29order the regional center director or designee to evaluate the
30defendant and to submit to the court within 15 judicial days of the
31order a written recommendation as to whether the defendant should
32be committed to a state hospital or developmental center or to any
33other available residential facility approved by the regional center
34director. A person shall not be admitted to a state hospital,
35 developmental center, or other residential facility or accepted for
36outpatient status under Section 1370.4 without having been
37evaluated by the regional center director or designee.

38(3) When the court orders that the defendant be confined in a
39state hospital or other secure treatment facility pursuant to clause
40(ii) or (iii) of subparagraph (B) of paragraph (1), the court shall
P90   1provide copies of the following documents which shall be taken
2with the defendant to the state hospital or other secure treatment
3facility where the defendant is to be confined:

4(A) State summary criminal history information.

5(B) Any arrest reports prepared by the police department or
6other law enforcement agency.

7(C) Records of a finding of mental incompetence pursuant to
8this chapter arising out of a complaint charging a felony offense
9specified in Section 290 or a pending Section 1368 proceeding
10arising out of a charge of a Section 290 offense.

11(4) When the defendant is committed to a residential facility
12pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
13court makes the findings specified in clause (ii) or (iii) of
14subparagraph (B) of paragraph (1) to assign the defendant to a
15facility other than a state hospital or other secure treatment facility,
16the court shall order that notice be given to the appropriate law
17enforcement agency or agencies having local jurisdiction at the
18site of the placement facility of a finding of mental incompetence
19pursuant to this chapter arising out of a charge of a Section 290
20offense.

21(5) (A) If the defendant is committed or transferred to a state
22hospital or developmental center pursuant to this section, the court
23may, upon receiving the written recommendation of the executive
24director of the state hospital or developmental center and the
25regional center director that the defendant be transferred to a
26residential facility approved by the regional center director, order
27the defendant transferred to that facility. If the defendant is
28committed or transferred to a residential facility approved by the
29regional center director, the court may, upon receiving the written
30recommendation of the regional center director, transfer the
31defendant to a state hospital or developmental center or to another
32residential facility approved by the regional center director.

33In the event of dismissal of the criminal action or revocation
34proceedings before the defendant recovers competence, the person
35shall be subject to the applicable provisions of the
36Lanterman-Petris-Short Act (Part 1 (commencing with Section
375000) of Division 5 of the Welfare and Institutions Code) or to
38commitment or detention pursuant to a petition filed pursuant to
39Section 6502 of the Welfare and Institutions Code.

P91   1The defendant or prosecuting attorney may contest either kind
2of order of transfer by filing a petition with the court for a hearing,
3which shall be held if the court determines that sufficient grounds
4exist. At the hearing, the prosecuting attorney or the defendant
5may present evidence bearing on the order of transfer. The court
6shall use the same standards as used in conducting probation
7revocation hearings pursuant to Section 1203.2.

8Prior to making an order for transfer under this section, the court
9shall notify the defendant, the attorney of record for the defendant,
10the prosecuting attorney, and the regional center director or
11designee.

12(B) If the defendant is committed to a state hospital or secure
13treatment facility pursuant to clause (ii) or (iii) of subparagraph
14(B) of paragraph (1) and is subsequently transferred to another
15facility, copies of the documents specified in paragraph (3) shall
16be taken with the defendant to the new facility. The transferring
17facility shall also notify the appropriate law enforcement agency
18or agencies having local jurisdiction at the site of the new facility
19that the defendant is a person subject to clause (ii) or (iii) of
20subparagraph (B) of paragraph (1).

21(b) (1) Within 90 days of admission of a person committed
22pursuant to subdivision (a), the executive director or designee of
23the state hospital, developmental center, or other facility to which
24the defendant is committed, or the outpatient supervisor where the
25defendant is placed on outpatient status, shall make a written report
26to the committing court and the regional center director or a
27designee concerning the defendant’s progress toward becoming
28mentally competent. If the defendant has not become mentally
29competent, but the report discloses a substantial likelihood the
30defendant will become mentally competent within the next 90
31days, the court may order that the defendant shall remain in the
32state hospital, developmental center, or other facility or on
33outpatient status for that period of time. Within 150 days of an
34admission made pursuant to subdivision (a) or if the defendant
35becomes mentally competent, the executive director or designee
36of the hospital or developmental center or person in charge of the
37facility or the outpatient supervisor shall report to the court and
38the regional center director or his or her designee regarding the
39defendant’s progress toward becoming mentally competent. The
40court shall provide to the prosecutor and defense counsel copies
P92   1of all reports under this section. If the report indicates that there
2is no substantial likelihood that the defendant has become mentally
3competent, the committing court shall order the defendant to be
4 returned to the court for proceedings pursuant to paragraph (2) of
5subdivision (c). The court shall transmit a copy of its order to the
6regional center director or designee and to the executive director
7of the developmental center.

8(2) A defendant who has been committed or has been on
9outpatient status for 18 months, and is still hospitalized or on
10outpatient status, shall be returned to the committing court where
11a hearing shall be held pursuant to the procedures set forth in
12Section 1369. The court shall transmit a copy of its order to the
13regional center director or designee and the executive director of
14the developmental center.

15(3) If it is determined by the court that no treatment for the
16defendant’s mental impairment is being conducted, the defendant
17shall be returned to the committing court. A copy of this order
18shall be sent to the regional center director or designee and to the
19executive director of the developmental center.

20(4) At each review by the court specified in this subdivision,
21the court shall determine if the security level of housing and
22treatment is appropriate and may make an order in accordance
23with its determination.

24(c) (1) (A) At the end of three years from the date of
25commitment or a period of commitment equal to the maximum
26term of imprisonment provided by law for the most serious offense
27charged in the information, indictment, or misdemeanor complaint,
28or the maximum term of imprisonment provided by law for a
29violation of probation or mandatory supervision, whichever is
30shorter, a defendant who has not become mentally competent shall
31be returned to the committing court.

32(B) The court shall notify the regional center director or designee
33and the executive director of the developmental center of that
34return and of any resulting court orders.

35(2) (A) Except as provided in subparagraph (B), in the event
36of dismissal of the criminal charges before the defendant becomes
37mentally competent, the defendant shall be subject to the applicable
38provisions of the Lanterman-Petris-Short Act (Part 1 (commencing
39with Section 5000) of Division 5 of the Welfare and Institutions
40Code), or to commitment and detention pursuant to a petition filed
P93   1pursuant to Section 6502 of the Welfare and Institutions Code. If
2it is found that the person is not subject to commitment or detention
3pursuant to the applicable provision of the Lanterman-Petris-Short
4Act (Part 1 (commencing with Section 5000) of Division 5 of the
5Welfare and Institutions Code) or to commitment or detention
6pursuant to a petition filed pursuant to Section 6502 of the Welfare
7and Institutions Code, the individual shall not be subject to further
8confinement pursuant to this article and the criminal action remains
9subject to dismissal pursuant to Section 1385. The court shall notify
10the regional center director and the executive director of the
11developmental center of any dismissal.

12(B) In revocation proceedings alleging a violation of mandatory
13supervision in which the defendant remains incompetent upon
14return to court under subparagraph (A), the defendant shall be
15subject to the applicable provisions of the Lanterman-Petris-Short
16Act (Part 1 (commencing with Section 5000) of Division 5 of the
17Welfare and Institutions Code), or to commitment and detention
18pursuant to a petition filed pursuant to Section 6502 of the Welfare
19and Institutions Code. If it is found that the person is not subject
20to commitment or detention pursuant to the applicable provision
21of the Lanterman-Petris-Short Act (Part 1 (commencing with
22Section 5000) of Division 5 of the Welfare and Institutions Code)
23or to commitment or detention pursuant to a petition filed pursuant
24to Section 6502 of the Welfare and Institutions Code, the court
25shall reinstate mandatory supervision and modify the terms and
26conditions of supervision to include appropriate mental health
27treatment or refer the matter to a local mental health court, reentry
28court, or other collaborative justice court available for improving
29the mental health of the defendant. Actions alleging a violation of
30mandatory supervision shall not be subject to dismissal under
31Section 1385.

32(d) Except as provided in subparagraph (B) of paragraph (2) of
33subdivision (c), the criminal action remains subject to dismissal
34pursuant to Section 1385. If at any time prior to the maximum
35period of time allowed for proceedings under this article, the
36regional center director concludes that the behavior of the defendant
37related to the defendant’s criminal offense has been eliminated
38during time spent in court-ordered programs, the court may, upon
39recommendation of the regional center director, dismiss the
40criminal charges. The court shall transmit a copy of any order of
P94   1dismissal to the regional center director and to the executive
2director of the developmental center.

3(e) For the purpose of this section, “secure treatment facility”
4shall not include, except for state mental hospitals, state
5developmental centers, and correctional treatment facilities, a
6facility licensed pursuant to Chapter 2 (commencing with Section
71250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
83.2 (commencing with Section 1569) of, Division 2 of the Health
9and Safety Code, or a community board and care facility.

10

SEC. 11.  

Section 1370.5 of the Penal Code is amended to read:

11

1370.5.  

(a) A person committed to a state hospital or other
12public or private mental health facility pursuant to the provisions
13of Section 1370, 1370.01, 1370.02, or 1370.1, who escapes from
14or who escapes while being conveyed to or from a state hospital
15or facility, is punishable by imprisonment in a county jail not to
16exceed one year or in the state prison for a determinate term of
17one year and one day. The term of imprisonment imposed pursuant
18to this section shall be served consecutively to any other sentence
19or commitment.

20(b) The medical director or person in charge of a state hospital
21or other public or private mental health facility to which a person
22has been committed pursuant to the provisions of Section 1370,
231370.01, 1370.02, or 1370.1 shall promptly notify the chief of
24police of the city in which the hospital or facility is located, or the
25sheriff of the county if the hospital or facility is located in an
26unincorporated area, of the escape of the person, and shall request
27the assistance of the chief of police or sheriff in apprehending the
28person, and shall within 48 hours of the escape of the person orally
29notify the court that made the commitment, the prosecutor in the
30case, and the Department of Justice of the escape.

31

SEC. 12.  

Section 1371 of the Penal Code is amended to read:

32

1371.  

The commitment of the defendant, as described in
33Section 1370, 1370.1, 1370.01, or 1370.02, exonerates his or her
34bail, or entitles a person, authorized to receive the property of the
35defendant, to a return of any money he or she may have deposited
36instead of bail, or gives, to the person or persons found by the court
37to have deposited any money instead of bail on behalf of the
38defendant, a right to the return of that money.

39

SEC. 13.  

Section 1373 of the Penal Code is amended to read:

P95   1

1373.  

The expense of sending the defendant to the state hospital
2or other facility, and of bringing him or her back, are chargeable
3to the county in which the indictment was found, information was
4filed, or revocation proceeding was held; but the county may
5recover the expense from the estate of the defendant, if he or she
6has any, or from a relative, bound to provide for and maintain him
7or her.

8

SEC. 14.  

Section 1375.5 of the Penal Code is amended to read:

9

1375.5.  

(a) Time spent by a defendant in a hospital or other
10facility as a result of a commitment therein as a mentally
11incompetent pursuant to this chapter shall be credited on the term
12of imprisonment, if any, for which the defendant is sentenced in
13the criminal case which was suspended pursuant to Section 1370,
141370.1, or 1370.01.

begin delete

15(b) Time spent by an offender in a hospital or other facility as
16a result of a commitment as a mentally incompetent pursuant to
17Section 1370.02 shall be credited toward any period of revocation
18or remaining term of supervision that was suspended.

end delete
begin delete

19 (c)

end delete

20begin insert (b)end insert As used in this section, “time spent in a hospital or other
21facility” includes days a defendant is treated as an outpatient
22pursuant to Title 15 (commencing with Section 1600) of Part 2.

23begin insert

begin insertSEC. 15.end insert  

end insert
begin insert

(a) Section 7.1 of this bill incorporates amendments
24to Section 1370 of the Penal Code proposed by both this bill and
25Assembly Bill 2186. It shall only become operative if (1) both bills
26are enacted and become effective on or before January 1, 2015,
27(2) each bill amends Section 1370 of the Penal Code, (3) Assembly
28Bill 2625 is not enacted or as enacted does not amend that section,
29and (4) this bill is enacted after Assembly Bill 2186, in which case
30Sections 7, 7.2, and 7.3 of this bill shall not become operative.

end insert
begin insert

31(b) Section 7.2 of this bill incorporates amendments to Section
321370 of the Penal Code proposed by both this bill and Assembly
33Bill 2625. It shall only become operative if (1) both bills are
34enacted and become effective on or before January 1, 2015, (2)
35each bill amends Section 1370 of the Penal Code, (3) Assembly
36Bill 2186 is not enacted or as enacted does not amend that section,
37and (4) this bill is enacted after Assembly Bill 2625 in which case
38Sections 7, 7.1, and 7.3 of this bill shall not become operative.

end insert
begin insert

39(c) Section 7.3 of this bill incorporates amendments to Section
401370 of the Penal Code proposed by this bill, Assembly Bill 2186,
P96   1and Assembly Bill 2625. It shall only become operative if (1) all
2three bills are enacted and become effective on or before January
31, 2015, (2) all three bills amend Section 1370 of the Penal Code,
4and (3) this bill is enacted after Assembly Bill 2186 and Assembly
5Bill 2625, in which case Sections 7, 7.1, and 7.2 of this bill shall
6not become operative.

end insert
7

begin deleteSEC. 15.end delete
8begin insertSEC. 16.end insert  

If the Commission on State Mandates determines that
9this act contains costs mandated by the state, reimbursement to
10local agencies and school districts for those costs shall be made
11pursuant to Part 7 (commencing with Section 17500) of Division
124 of Title 2 of the Government Code.



O

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