Senate BillNo. 453


Introduced by Senator Pan

February 25, 2015


An act to amend Section 1370 of the Penal Code, relating to prisons.

LEGISLATIVE COUNSEL’S DIGEST

SB 453, as introduced, Pan. Prisons: involuntary medication.

Existing law provides that if a defendant in a criminal proceeding is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent. Existing law provides that the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility approved by the community program director that will promote the defendant’s speedy restoration to mental competence, or placed on outpatient status as specified. Existing law further specifies commitment proceedings to include circumstances for the voluntary and involuntary administration of antipsychotic medication.

Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to make efforts to obtain consent for that medication. Existing law provides that if the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate for the defendant, antipsychotic medication may be administered to the defendant for a maximum of 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment.

This bill would instead authorize a psychiatrist designated by the facility medical director to make the determination and certification as to whether antipsychotic medication is medically necessary and appropriate and to administer that medication to the defendant for up to 21 days.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 1370 of the Penal Code is amended to
2read:

3

1370.  

(a) (1) (A) If the defendant is found mentally
4competent, the criminal process shall resume, the trial on the
5offense charged or hearing on the alleged violation shall proceed,
6and judgment may be pronounced.

7(B) If the defendant is found mentally incompetent, the trial,
8the hearing on the alleged violation, or the judgment shall be
9suspended until the person becomes mentally competent.

10(i) In the meantime, the court shall order that the mentally
11incompetent defendant be delivered by the sheriff to a state hospital
12for the care and treatment of the mentally disordered, as directed
13by the State Department of State Hospitals, or to any other available
14public or private treatment facility, including a local county jail
15treatment facility or the community-based residential treatment
16system established pursuant to Article 1 (commencing with Section
175670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
18Institutions Code if the facility has a secured perimeter or a locked
19and controlled 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
P3    1subject of a pending Section 1368 proceeding arising out of a
2charge of a Section 290 offense. If either determination is made,
3the prosecutor shall so notify the court and defendant in writing.
4After this notification, and opportunity for hearing, the court shall
5order that the defendant be delivered by the sheriff to a state
6hospital, as directed by the State Department of State Hospitals,
7or other secure treatment facility for the care and treatment of the
8mentally disordered unless the court makes specific findings on
9the record that an alternative placement would provide more
10appropriate treatment for the defendant and would not pose a
11danger 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 mentally
21disordered, as directed by the State Department of State Hospitals,
22unless the court makes specific findings on the record that an
23alternative placement would provide more appropriate treatment
24for the defendant and would not pose a danger to the health and
25safety of others.

26(iv) The clerk of the court shall notify the Department of Justice
27in writing ofbegin delete anyend deletebegin insert aend insert finding of mental incompetence with respect
28to a defendant who is subject to clause (ii) or (iii) for inclusion in
29his or her state summary criminal history information.

30(C) Upon the filing of a certificate of restoration to competence,
31the court shall order that the defendant be returned to court in
32accordance with Section 1372. The court shall transmit a copy of
33its order to the community program director or a designee.

34(D) A defendant charged with a violent felony may not be
35delivered to a state hospital or treatment facility pursuant to this
36subdivision unless the state hospital or treatment facility has a
37secured perimeter or a locked and controlled treatment facility,
38and the judge determines that the public safety will be protected.

39(E) For purposes of this paragraph, “violent felony” means an
40offense specified in subdivision (c) of Section 667.5.

P4    1(F) A defendant charged with a violent felony may be placed
2on outpatient status, as specified in Section 1600, only if the court
3finds that the placement will not pose a danger to the health or
4safety of others. If the court places a defendant charged with a
5violent felony on outpatient status, as specified in Section 1600,
6the court shall serve copies of the placement order on defense
7counsel, the sheriff in the county where the defendant will be
8placed, and the district attorney for the county in which the violent
9felony charges are pending against the defendant.

10(2) Prior to making the order directing that the defendant be
11committed to the State Department of State Hospitals or other
12treatment facility or placed on outpatient status, the court shall
13proceed as follows:

14(A) The court shall order the community program director or a
15designee to evaluate the defendant and to submit to the court within
1615 judicial days of the order a written recommendation as to
17whether the defendant should be required to undergo outpatient
18treatment, or be committed to the State Department of State
19Hospitals or to any other treatment facility. A person shall not be
20admitted to a state hospital or other treatment facility or placed on
21outpatient status under this section without having been evaluated
22by the community program director or a designee. The community
23program director or designee shall evaluate the appropriate
24placement for the defendant between the State Department of State
25Hospitals, a local county jail treatment facility, or the
26community-based residential treatment system based upon
27guidelines provided by the State Department of State Hospitals.
28If a local county jail treatment facility is selected, the State
29Department of State Hospitals shall provide treatment at the county
30jail treatment facility and reimburse the county jail treatment
31facility for the reasonable costs of the bed during the treatment. If
32the community-based residential treatment system is selected, the
33State Department of State Hospitals shall provide reimbursement
34to the community-based residential treatment system for the cost
35of treatment as negotiated with the State Department of State
36Hospitals. The six-month limitation in Section 1369.1 shall not
37apply to individuals deemed incompetent to stand trial who are
38being treated to restore competency within a county jail treatment
39facility pursuant to this section.

P5    1(B) The court shall hear and determine whether the defendant
2lacks capacity to make decisions regarding the administration of
3antipsychotic medication. The court shall consider opinions in the
4reports prepared pursuant to subdivision (a) of Section 1369, as
5applicable to the issue of whether the defendant lacks capacity to
6make decisions regarding the administration of antipsychotic
7medication, and shall proceed as follows:

8(i) The court shall hear and determine whether any of the
9following is true:

10(I) The defendant lacks capacity to make decisions regarding
11antipsychotic medication, the defendant’s mental disorder requires
12medical treatment with antipsychotic medication, and, if the
13defendant’s mental disorder is not treated with antipsychotic
14medication, it is probable that serious harm to the physical or
15mental health of the patient will result. Probability of serious harm
16to the physical or mental health of the defendant requires evidence
17that the defendant is presently suffering adverse effects to his or
18her physical or mental health, or the defendant has previously
19suffered these effects as a result of a mental disorder and his or
20her condition is substantially deteriorating. The fact that a
21defendant has a diagnosis of a mental disorder does not alone
22establish probability of serious harm to the physical or mental
23health of the defendant.

24(II) The defendant is a danger to others, in that the defendant
25has inflicted, attempted to inflict, or made a serious threat of
26inflicting substantial physical harm on another while in custody,
27or the defendant had inflicted, attempted to inflict, or made a
28serious threat of inflicting substantial physical harm on another
29that resulted in his or her being taken into custody, and the
30defendant presents, as a result of mental disorder or mental defect,
31a demonstrated danger of inflicting substantial physical harm on
32others. Demonstrated danger may be based on an assessment of
33the defendant’s present mental condition, including a consideration
34of past behavior of the defendant within six years prior to the time
35the defendant last attempted to inflict, inflicted, or threatened to
36inflict substantial physical harm on another, and other relevant
37evidence.

38(III) The people have charged the defendant with a serious crime
39against the person or property, involuntary administration of
40antipsychotic medication is substantially likely to render the
P6    1defendant competent to stand trial, the medication is unlikely to
2have side effects that interfere with the defendant’s ability to
3understand the nature of the criminal proceedings or to assist
4counsel in the conduct of a defense in a reasonable manner, less
5intrusive treatments are unlikely to have substantially the same
6results, and antipsychotic medication is in the patient’s best medical
7interest in light of his or her medical condition.

8(ii) If the court finds any of the conditions described in clause
9(i) to be true, the court shall issue an order authorizing involuntary
10administration of antipsychotic medication to the defendant when
11and as prescribed by the defendant’s treating psychiatrist at any
12facility housing the defendant for purposes of this chapter. The
13order shall be valid for no more than one year, pursuant to
14subparagraph (A) of paragraph (7). The court shall not order
15involuntary administration of psychotropic medication under
16subclause (III) of clause (i) unless the court has first found that the
17defendant does not meet the criteria for involuntary administration
18of psychotropic medication under subclause (I) of clause (i) and
19does not meet the criteria under subclause (II) of clause (i).

20(iii) In all cases, the treating hospital, facility, or program may
21administer medically appropriate antipsychotic medication
22prescribed by a psychiatrist in an emergency as described in
23subdivision (m) of Section 5008 of the Welfare and Institutions
24Code.

25(iv) If the court has determined that the defendant has the
26capacity to make decisions regarding antipsychotic medication,
27and if the defendant, with advice of his or her counsel, consents,
28the court order of commitment shall include confirmation that
29antipsychotic medication may be given to the defendant as
30prescribed by a treating psychiatrist pursuant to the defendant’s
31consent. The commitment order shall also indicate that, if the
32defendant withdraws consent for antipsychotic medication, after
33the treating psychiatrist complies with the provisions of
34subparagraph (C), the defendant shall be returned to court for a
35hearing in accordance with subparagraphs (C) and (D) regarding
36whether antipsychotic medication shall be administered
37involuntarily.

38(v) If the court has determined that the defendant has the
39capacity to make decisions regarding antipsychotic medication
40and if the defendant, with advice from his or her counsel, does not
P7    1consent, the court order for commitment shall indicate that, after
2the treating psychiatrist complies with the provisions of
3subparagraph (C), the defendant shall be returned to court for a
4hearing in accordance with subparagraphs (C) and (D) regarding
5whether antipsychotic medication shall be administered
6involuntarily.

7(vi) begin deleteAny end deletebegin insertA end insertreport made pursuant to paragraph (1) of subdivision
8(b) shall include a description ofbegin delete anyend delete antipsychotic medication
9administered to the defendant and its effects and side effects,
10including effects on the defendant’s appearance or behavior that
11would affect the defendant’s ability to understand the nature of
12the criminal proceedings or to assist counsel in the conduct of a
13defense in a reasonable manner. During the time the defendant is
14confined in a state hospital or other treatment facility or placed on
15outpatient status, either the defendant or the people may request
16that the court review any order made pursuant to this subdivision.
17The defendant, to the same extent enjoyed by other patients in the
18state hospital or other treatment facility, shall have the right to
19contact the patients’ rights advocate regarding his or her rights
20under this section.

21(C) If the defendant consented to antipsychotic medication as
22described in clause (iv) of subparagraph (B), but subsequently
23withdraws his or her consent, or, if involuntary antipsychotic
24medication was not ordered pursuant to clause (v) of subparagraph
25(B), andbegin delete the treating psychiatristend deletebegin insert a psychiatrist designated by the
26facility’s medical directorend insert
determines that antipsychotic medication
27has become medically necessary and appropriate, thebegin delete treatingend delete
28 psychiatristbegin insert end insertbegin insertdesignated by the facility’s medical directorend insert shall make
29efforts to obtain informed consent from the defendant for
30antipsychotic medication. If informed consent is not obtained from
31the defendant, and thebegin delete treatingend delete psychiatristbegin insert end insertbegin insertdesignated by the
32facility’s medical directorend insert
is of the opinion that the defendant lacks
33capacity to make decisions regarding antipsychotic medication
34based on the conditions described in subclause (I) or (II) of clause
35(i) of subparagraph (B), thebegin delete treatingend delete psychiatristbegin insert end insertbegin insertdesignated by the
36facility’s medical directorend insert
shall certify whether the lack of capacity
37and any applicable conditions described above exist. That
38certification shall contain an assessment of the current mental
39status of the defendant and the opinion of thebegin delete treatingend delete psychiatrist
40begin insert designated by the facility’s medical directorend insert that involuntary
P8    1antipsychotic medication has become medically necessary and
2appropriate.

3(D) (i) If thebegin delete treatingend delete psychiatristbegin insert end insertbegin insertdesignated by the facility’s
4medical directorend insert
certifies that antipsychotic medication has become
5medically necessary and appropriate pursuant to subparagraph (C),
6antipsychotic medication may be administered to the defendant
7for not more than 21 days, provided, however, that, within 72 hours
8of the certification, the defendant is provided a medication review
9hearing before an administrative law judge to be conducted at the
10facility where the defendant is receiving treatment. Thebegin delete treatingend delete
11 psychiatristbegin insert designated by the facility’s medical directorend insert shall
12present the case for the certification for involuntary treatment and
13the defendant shall be represented by an attorney or a patients’
14rights advocate. The attorney or patients’ rights advocate shall be
15appointed to meet with the defendant no later than one day prior
16to the medication review hearing to review the defendant’s rights
17at the medication review hearing, discuss the process, answer
18questions or concerns regarding involuntary medication or the
19hearing, assist the defendant in preparing for the hearing and
20advocating for his or her interests at the hearing, review the panel’s
21final determination following the hearing, advise the defendant of
22his or her right to judicial review of the panel’s decision, and
23provide the defendant with referral information for legal advice
24on the subject. The defendant shall also have the following rights
25with respect to the medication review hearing:

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

27(II)  To be present at the hearing, unless the defendant waives
28that right.

29(III) To present evidence at the hearing.

30(IV) To question persons presenting evidence supporting
31involuntary medication.

32(V) To make reasonable requests for attendance of witnesses
33on the defendant’s behalf.

34(VI) To a hearing conducted in an impartial and informal
35manner.

36(ii) If the administrative law judge determines that the defendant
37either meets the criteria specified in subclause (I) of clause (i) of
38subparagraph (B), or meets the criteria specified in subclause (II)
39of clause (i) of subparagraph (B), then antipsychotic medication
40may continue to be administered to the defendant for the 21-day
P9    1certification period. Concurrently with the treating psychiatrist’s
2certification, the treating psychiatrist shall file a copy of the
3certification and a petition with the court for issuance of an order
4to administer antipsychotic medication beyond the 21-day
5certification period. For purposes of this subparagraph, the treating
6psychiatrist shall not be required to pay or deposit any fee for the
7filing of the petition or other document or paper related to the
8petition.

9(iii) If the administrative law judge disagrees with the
10certification, medication may not be administered involuntarily
11until the court determines that antipsychotic medication should be
12administered pursuant to this section.

13(iv) The court shall provide notice to the prosecuting attorney
14and to the attorney representing the defendant, and shall hold a
15hearing, no later than 18 days from the date of the certification, to
16determine whether antipsychotic medication should be ordered
17beyond the certification period.

18(v) If, as a result of the hearing, the court determines that
19antipsychotic medication should be administered beyond the
20certification period, the court shall issue an order authorizing the
21administration of that medication.

22(vi) The court shall render its decision on the petition and issue
23its order no later than three calendar days after the hearing and, in
24any event, no later than the expiration of the 21-day certification
25period.

26(vii) If the administrative law judge upholds the certification
27pursuant to clause (ii), the court may, for a period not to exceed
2814 days, extend the certification and continue the hearing pursuant
29to stipulation between the parties or upon a finding of good cause.
30In determining good cause, the court may review the petition filed
31with the court, the administrative law judge’s order, and any
32additional testimony needed by the court to determine if it is
33appropriate to continue medication beyond the 21-day certification
34and for a period of up to 14 days.

35(viii) The district attorney, county counsel, or representative of
36begin delete anyend deletebegin insert aend insert facility where a defendant found incompetent to stand trial
37is committed may petition the court for an order to administer
38involuntary medication pursuant to the criteria set forth in
39subclauses (II) and (III) of clause (i) of subparagraph (B). The
40order is reviewable as provided in paragraph (7).

P10   1(3) When the court orders that the defendant be committed to
2the State Department of State Hospitals or other public or private
3treatment facility, the court shall provide copies of the following
4documents prior to the admission of the defendant to the State
5Department of State Hospitals or other treatment facility where
6the defendant is to be committed:

7(A) The commitment order, including a specification of the
8charges.

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

11(C) A computation or statement setting forth the amount of
12credit for time served, if any, to be deducted from the maximum
13term of commitment.

14(D) State summary criminal history information.

15(E) begin deleteAny arrest end deletebegin insertArrest end insertreports prepared by the police department
16or other law enforcement agency.

17(F) begin deleteAny court-ordered end deletebegin insertCourt-ordered end insertpsychiatric examination
18or evaluation reports.

19(G) The community program director’s placement
20recommendation report.

21(H) Records ofbegin delete anyend deletebegin insert aend insert finding of mental incompetence pursuant
22to this chapter arising out of a complaint charging a felony offense
23specified in Section 290 orbegin delete anyend deletebegin insert aend insert pending Section 1368 proceeding
24arising out of a charge of a Section 290 offense.

25(I) begin deleteAny medical end deletebegin insertMedical end insertrecords.

26(4) When the defendant is committed to a treatment facility
27pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
28court makes the findings specified in clause (ii) or (iii) of
29subparagraph (B) of paragraph (1) to assign the defendant to a
30treatment facility other than a state hospital or other secure
31treatment facility, the court shall order that notice be given to the
32appropriate law enforcement agency or agencies having local
33jurisdiction at the site of the placement facility of any finding of
34mental incompetence pursuant to this chapter arising out of a
35charge of a Section 290 offense.

36(5) When directing that the defendant be confined in a state
37hospital pursuant to this subdivision, the court shall commit the
38patient to the State Department of State Hospitals.

39(6) (A) If the defendant is committed or transferred to the State
40Department of State Hospitals pursuant to this section, the court
P11   1may, upon receiving the written recommendation of the medical
2director of the state hospital and the community program director
3that the defendant be transferred to a public or private treatment
4facility approved by the community program director, order the
5defendant transferred to that facility. If the defendant is committed
6or transferred to a public or private treatment facility approved by
7the community program director, the court may, upon receiving
8the written recommendation of the community program director,
9transfer the defendant to the State Department of State Hospitals
10or to another public or private treatment facility approved by the
11community program director. In the event of dismissal of the
12criminal charges before the defendant recovers competence, the
13person shall be subject to the applicable provisions of the
14Lanterman-Petris-Short Act (Part 1 (commencing with Section
155000) of Division 5 of the Welfare and Institutions Code). If either
16the defendant or the prosecutor chooses to contest either kind of
17order of transfer, a petition may be filed in the court for a hearing,
18which shall be held if the court determines that sufficient grounds
19 exist. At the hearing, the prosecuting attorney or the defendant
20may present evidence bearing on the order of transfer. The court
21shall use the same standards as are used in conducting probation
22revocation hearings pursuant to Section 1203.2.

23Prior to making an order for transfer under this section, the court
24shall notify the defendant, the attorney of record for the defendant,
25the prosecuting attorney, and the community program director or
26a designee.

27(B) If the defendant is initially committed to the State
28Department of State Hospitals or secure treatment facility pursuant
29to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
30subsequently transferred to any other facility, copies of the
31documents specified in paragraph (3) shall be taken with the
32defendant to each subsequent facility to which the defendant is
33transferred. The transferring facility shall also notify the appropriate
34law enforcement agency or agencies having local jurisdiction at
35the site of the new facility that the defendant is a person subject
36to clause (ii) or (iii) of subparagraph (B) of paragraph (1).

37(7) (A) An order by the court authorizing involuntary
38medication of the defendant shall be valid for no more than one
39year. The court shall review the order at the time of the review of
40the initial report and the six-month progress reports pursuant to
P12   1paragraph (1) of subdivision (b) to determine if the grounds for
2the authorization remain. In the review, the court shall consider
3the reports of the treating psychiatrist or psychiatrists and the
4defendant’s patients’ rights advocate or attorney. The court may
5require testimony from thebegin delete treatingend delete psychiatrist or
6psychiatristsbegin insertdesignated by the facility’s medical directorend insert and the
7patients’ rights advocate or attorney, if necessary. The court may
8continue the order authorizing involuntary medication for up to
9another six months, or vacate the order, or make any other
10appropriate order.

11(B) Within 60 days before the expiration of the one-year
12involuntary medication order, the district attorney, county counsel,
13or representative of any facility where a defendant found
14incompetent to stand trial is committed may petition the committing
15court for a renewal, subject to the same conditions and
16requirements as in subparagraph (A). The petition shall include
17the basis for involuntary medication set forth in clause (i) of
18subparagraph (B) of paragraph (2). Notice of the petition shall be
19provided to the defendant, the defendant’s attorney, and the district
20attorney. The court shall hear and determine whether the defendant
21continues to meet the criteria set forth in clause (i) of subparagraph
22(B) of paragraph (2). The hearing on any petition to renew an order
23for involuntary medication shall be conducted prior to the
24expiration of the current order.

25(b) (1) Within 90 days of a commitment made pursuant to
26subdivision (a), the medical director of the state hospital or other
27treatment facility to which the defendant is confined shall make a
28written report to the court and the community program director
29for the county or region of commitment, or a designee, concerning
30the defendant’s progress toward recovery of mental competence
31and whether the administration of antipsychotic medication remains
32necessary. If the defendant is on outpatient status, the outpatient
33treatment staff shall make a written report to the community
34program director concerning the defendant’s progress toward
35recovery of mental competence. Within 90 days of placement on
36outpatient status, the community program director shall report to
37the court on this matter. If the defendant has not recovered mental
38competence, but the report discloses a substantial likelihood that
39the defendant will regain mental competence in the foreseeable
40future, the defendant shall remain in the state hospital or other
P13   1treatment facility or on outpatient status. Thereafter, at six-month
2intervals or until the defendant becomes mentally competent, if
3the defendant is confined in a treatment facility, the medical
4director of the hospital or person in charge of the facility shall
5report in writing to the court and the community program director
6or a designee regarding the defendant’s progress toward recovery
7of mental competence and whether the administration of
8antipsychotic medication remains necessary. If the defendant is
9on outpatient status, after the initial 90-day report, the outpatient
10treatment staff shall report to the community program director on
11the defendant’s progress toward recovery, and the community
12program director shall report to the court on this matter at
13six-month intervals. A copy of these reports shall be provided to
14the prosecutor and defense counsel by the court.

15(A) If the report indicates that there is no substantial likelihood
16that the defendant will regain mental competence in the foreseeable
17future, the committing court shall order the defendant to be returned
18to the court for proceedings pursuant to paragraph (2) of
19subdivision (c) no later than 10 days following receipt of the report.
20The court shall transmit a copy of its order to the community
21program director or a designee.

22(B) If the report indicates that there is no substantial likelihood
23that the defendant will regain mental competence in the foreseeable
24future, the medical director of the state hospital or other treatment
25facility to which the defendant is confined shall do both of the
26following:

27(i) Promptly notify and provide a copy of the report to the
28defense counsel and the district attorney.

29(ii) Provide a separate notification, in compliance with
30applicable privacy laws, to the committing county’s sheriff that
31transportation will be needed for the patient.

32(2) If the court has issued an order authorizing the treating
33facility to involuntarily administer antipsychotic medication to the
34defendant, the reports made pursuant to paragraph (1) concerning
35the defendant’s progress toward regaining competency shall also
36consider the issue of involuntary medication. Each report shall
37include, but is not limited to, all the following:

38(A) Whether or not the defendant has the capacity to make
39decisions concerning antipsychotic medication.

P14   1(B) If the defendant lacks capacity to make decisions concerning
2antipsychotic medication, whether the defendant risks serious harm
3to his or her physical or mental health if not treated with
4antipsychotic medication.

5(C) Whether or not the defendant presents a danger to others if
6he or she is not treated with antipsychotic medication.

7(D) Whether the defendant has a mental illness for which
8medications are the only effective treatment.

9(E) Whether there are any side effects from the medication
10currently being experienced by the defendant that would interfere
11with the defendant’s ability to collaborate with counsel.

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

13(G) How quickly the medication is likely to bring the defendant
14to competency.

15(H) Whether the treatment plan includes methods other than
16medication to restore the defendant to competency.

17(I) A statement, if applicable, that no medication is likely to
18restore the defendant to competency.

19(3) After reviewing the reports, the court shall determine whether
20or not grounds for the order authorizing involuntary administration
21of antipsychotic medication still exist and shall do one of the
22following:

23(A) If the original grounds for involuntary medication still exist,
24the order authorizing the treating facility to involuntarily administer
25antipsychotic medication to the defendant shall remain in effect.

26(B) If the original grounds for involuntary medication no longer
27exist, and there is no other basis for involuntary administration of
28antipsychotic medication, the order for the involuntary
29administration of antipsychotic medication shall be vacated.

30(C) If the original grounds for involuntary medication no longer
31exist, and the report states that there is another basis for involuntary
32administration of antipsychotic medication, the court shall set a
33hearing within 21 days to determine whether the order for the
34involuntary administration of antipsychotic medication shall be
35vacated or whether a new order for the involuntary administration
36of antipsychotic medication shall be issued. The hearing shall
37proceed as set forth in subparagraph (B) of paragraph (2) of
38subdivision (a).

39(4) begin deleteAny end deletebegin insertA end insertdefendant who has been committed or has been on
40outpatient status for 18 months and is still hospitalized or on
P15   1outpatient status shall be returned to the committing court where
2a hearing shall be held pursuant to the procedures set forth in
3Section 1369. The court shall transmit a copy of its order to the
4community program director or a designee.

5(5) If it is determined by the court that no treatment for the
6defendant’s mental impairment is being conducted, the defendant
7shall be returned to the committing court. The court shall transmit
8a copy of its order to the community program director or a
9designee.

10(6) At each review by the court specified in this subdivision,
11the court shall determine if the security level of housing and
12treatment is appropriate and may make an order in accordance
13with its determination. If the court determines that the defendant
14 shall continue to be treated in the state hospital or on an outpatient
15basis, the court shall determine issues concerning administration
16of antipsychotic medication, as set forth in subparagraph (B) of
17paragraph (2) of subdivision (a).

18(c) (1) At the end of three years from the date of commitment
19or a period of commitment equal to the maximum term of
20imprisonment provided by law for the most serious offense charged
21in the information, indictment, or misdemeanor complaint, or the
22maximum term of imprisonment provided by law for a violation
23of probation or mandatory supervision, whichever is shorter, but
24no later than 90 days prior to the expiration of the defendant’s term
25of commitment, a defendant who has not recovered mental
26competence shall be returned to the committing court. The court
27shall notify the community program director or a designee of the
28return and of any resulting court orders.

29(2) Wheneverbegin delete anyend deletebegin insert aend insert defendant is returned to the court pursuant
30to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this
31subdivision and it appears to the court that the defendant is gravely
32disabled, as defined in subparagraph (B) of paragraph (1) of
33subdivision (h) of Section 5008 of the Welfare and Institutions
34Code, the court shall order the conservatorship investigator of the
35county of commitment of the defendant to initiate conservatorship
36proceedings for the defendant pursuant to Chapter 3 (commencing
37with Section 5350) of Part 1 of Division 5 of the Welfare and
38Institutions Code.begin delete Any hearingsend deletebegin insert Hearingsend insert required in the
39conservatorship proceedings shall be held in the superior court in
40the county that ordered the commitment. The court shall transmit
P16   1a copy of the order directing initiation of conservatorship
2proceedings to the community program director or a designee, the
3sheriff and the district attorney of the county in which criminal
4charges are pending, and the defendant’s counsel of record. The
5court shall notify the community program director or a designee,
6the sheriff and district attorney of the county in which criminal
7charges are pending, and the defendant’s counsel of record of the
8outcome of the conservatorship proceedings.

9(3) If a change in placement is proposed for a defendant who
10is committed pursuant to subparagraph (B) of paragraph (1) of
11subdivision (h) of Section 5008 of the Welfare and Institutions
12Code, the court shall provide notice and an opportunity to be heard
13with respect to the proposed placement of the defendant to the
14sheriff and the district attorney of the county in which the criminal
15charges or revocation proceedings are pending.

16(4) If the defendant is confined in a treatment facility, a copy
17of any report to the committing court regarding the defendant’s
18progress toward recovery of mental competence shall be provided
19by the committing court to the prosecutor and to the defense
20counsel.

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

34(e) If the criminal action against the defendant is dismissed, the
35defendant shall be released frombegin delete anyend delete commitment ordered under
36this section, but without prejudice to the initiation of any
37proceedings that may be appropriate under the
38Lanterman-Petris-Short Act (Part 1 (commencing with Section
395000) of Division 5 of the Welfare and Institutions Code).

P17   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.



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