Amended in Senate April 28, 2015

Amended in Senate April 6, 2015

Senate Bill No. 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 amended, 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Under existing law, if consent for antipsychotic medication is withdrawn or if the treating psychiatrist later determines that antipsychotic medication is medically necessary and appropriate, the treating psychiatrist is required to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 authorize the treating psychiatrist, if he or she determines that there is a need, based on factors such as preserving rapport with the patient, to request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist for purposes of involuntary medication. If the medical director of the facility designates another psychiatrist to act, this bill would require the treating psychiatrist to brief the acting psychiatrist of the relevant facts of the begin delete case. end delete begin insert case and would require the acting psychiatrist to examine the patient prior to the hearing. end insert

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

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

SECTION 1.  

Section 1370 of the Penal Code is amended to
read:

1370.  

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

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

(i) In the meantime, 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, including a local county jail
treatment facility or the community-based residential treatment
system established pursuant to Article 1 (commencing with Section
5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
Institutions Code if the facility has a secured perimeter or a locked
and controlled 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 in Section 1600.

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

(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon
clear and convincing evidence, a substantial likelihood that the
person’s release would result in great bodily harm to others, the
court shall order that the 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,
unless the court makes specific findings on the record that an
alternative placement would provide more appropriate treatment
for the defendant and would not pose a danger to the health and
safety of others.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(D) (i) If the treating psychiatrist certifies that antipsychotic
medication has become medically necessary and appropriate
pursuant to subparagraph (C), antipsychotic medication may be
administered to the defendant for not more than 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. The treating psychiatrist shall present the case
for the certification for involuntary treatment and the defendant
shall be represented by an attorney or a patients’ rights advocate.
The attorney or patients’ rights advocate shall be appointed to meet
with the defendant no later than one day prior to the medication
review hearing to review the defendant’s rights at the medication
review hearing, discuss the process, answer questions or concerns
regarding involuntary medication or the hearing, assist the
defendant in preparing for the hearing and advocating for his or
her interests at the hearing, review the panel’s final determination
following the hearing, advise the defendant of his or her right to
judicial review of the panel’s decision, and provide the defendant
with referral information for legal advice on the subject. The
defendant shall also have the following rights with respect to the
medication review hearing:

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

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

(III) To present evidence at the hearing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(D) State summary criminal history information.

(E) Arrest reports prepared by the police department or other
law enforcement agency.

(F) Court-ordered psychiatric examination or evaluation reports.

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

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

(I) Medical records.

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

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

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

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

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

(7) (A) An order by the court authorizing involuntary
medication of the defendant shall be valid for no more than one
year. The court shall review the order at the time of the review of
the initial report and the six-month progress reports pursuant to
paragraph (1) of subdivision (b) to determine if the grounds for
the authorization remain. In the review, the court shall consider
the reports of the treating psychiatrist or psychiatrists and the
defendant’s patients’ rights advocate or attorney. The court may
require testimony from the treating psychiatrist and the patients’
rights advocate or attorney, if necessary. The court may continue
the order authorizing involuntary medication for up to another six
months, or vacate the order, or make any other appropriate order.

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

(8)  begin delete If end delete begin insert For purposes of subparagraph (B) of paragraph (2) and
paragraphs (3) to (7), inclusive, if end insert the treating psychiatrist
determines that there is a need, based on preserving his or her
rapport with the begin delete patient, to prevent harm, or other factors, end delete begin insert patient
or to preventing harm, end insert the treating psychiatrist may request that
the facility medical director designate another psychiatrist to act
in the place of the treating psychiatrist for purposes of this
subdivision. If the medical director of the facility designates
another psychiatrist to act pursuant to this paragraph, the treating
psychiatrist shall brief the acting psychiatrist of the relevant facts
of the begin delete case. end delete begin insert case and the acting psychiatrist shall examine the
patient prior to the hearing. end insert

(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director
for the county or region of commitment, or a designee, concerning
the defendant’s progress toward recovery of mental competence
and whether the administration of antipsychotic medication remains
necessary. If the defendant is on outpatient status, the outpatient
treatment staff shall make a written report to the community
program director concerning the defendant’s progress toward
recovery of mental competence. Within 90 days of placement on
outpatient status, the community program director shall report to
the court on this matter. If the defendant has not recovered mental
competence, but the report discloses a substantial likelihood that
the defendant will regain mental competence in the foreseeable
future, the defendant shall remain in the state hospital or other
treatment facility or on outpatient status. Thereafter, at six-month
intervals or until the defendant becomes mentally competent, if
the defendant is confined in a treatment facility, the medical
director of the hospital or person in charge of the facility shall
report in writing to the court and the community program director
or a designee regarding the defendant’s progress toward recovery
of mental competence and whether the administration of
antipsychotic medication remains necessary. If the defendant is
on outpatient status, after the initial 90-day report, the outpatient
treatment staff shall report to the community program director on
the defendant’s progress toward recovery, and the community
program director shall report to the court on this matter at
six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(e) If the criminal action against the defendant is dismissed, the
defendant shall be released from commitment ordered under this
section, but without prejudice to the initiation of any proceedings
that may be appropriate under the Lanterman-Petris-Short Act
(Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code).

(f) As used in this chapter, “community program director” means
the person, agency, or entity designated by the State Department
of State Hospitals pursuant to Section 1605 of this code and Section
4360 of the Welfare and Institutions Code.

(g) For the purpose of this section, “secure treatment facility”
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, any
facility licensed pursuant to Chapter 2 (commencing with Section
1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter
3.2 (commencing with Section 1569) of, Division 2 of the Health
and Safety Code, or any community board and care facility.

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