Amended in Senate June 15, 2014

Amended in Assembly April 21, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2186

Introduced by Assembly Member Lowenthal

begin insert

(Coauthor: Senator Anderson)

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February 20, 2014

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

LEGISLATIVE COUNSEL’S DIGEST

AB 2186, as amended, Lowenthal. Defendants: competency.

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, 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.

This bill would require the court to consider opinions developed by examining medical professionals during the inquiry determining mental competence when the court is determining if the defendant lacks the capacity to make decisions regarding the administration of antipsychotic 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 a court to extend the administrative law judge’s order authorizing involuntary medication for 14 days beyond the 21-day certification period upon a finding of good cause or by stipulation of the parties. The bill would authorize the district attorney, county counsel, or representative of any facility where a defendant found incompetent to stand trial is committed, to petition the court for an order to administer involuntary medication.

Existing law provides that an order by the court authorizing involuntary medication of the defendant is valid for one year. Existing law requires the court to review the order 6 months after it is made to determine if the grounds for the authorization remain. Existing law requires the medical director of the state hospital or other treatment facility to which the defendant is confined to 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, within 90 days of commitment, and thereafter, at 6-month intervals or until the defendant becomes mentally competent.

This bill would require the court to review its order authorizing involuntary medication at the time of review of the initial progress report and in conjunction with the 6-month intervals described above. The bill would provide that within 60 days of the expiration of the one year involuntary medication order, the district attorney, county counsel, or representative of the facility where the defendant is being treated may petition the committing court for a one year renewal, and would require the petition to include the basis for involuntary medication. The bill would require notice of the petition to the defendant, the defendant’s attorney, and the district attorney, and would require the court to hear and determine whether the defendant continues to meet the criteria for involuntary medication. The bill would require the 90-day and 6-month reports described above regarding progress towards competence to also address whether the administration of antipsychotic medication remains necessary.

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 shall proceed, and judgment may be pronounced.

(B) If the defendant is found mentally incompetent, the trial or
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, or to any
other available public or private treatment facility, including a
local county jail 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 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
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 any 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
confined in a state hospital 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 begin insert be end insert committed to a state hospital 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 a state hospital or a local county jail treatment facility
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. 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 begin delete section end delete begin insert chapter end insert .
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) Any report made pursuant to paragraph (1) of subdivision
(b) shall include a description of any 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 being 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
any 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 confined in a
state hospital or other public or private treatment facility, the court
shall provide copies of the following documents which shall be
taken with the defendant to the state hospital or other treatment
facility where the defendant is to be confined:

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

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

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

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

(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 select the
hospital in accordance with the policies established by the State
Department of State Hospitals.

(6) (A) If the defendant is committed or transferred to a state
hospital 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 a state hospital 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). Where 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 a state hospital 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 or psychiatrists
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.

(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. Where 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, where 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.
Where 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. 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). The court shall transmit a copy of its order to the community
program director or a designee.

(2) Where 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 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) Any 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,
whichever is shorter, 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 any 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. Any 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 criminal
charges are pending.

(4) Where 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) 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.

(e) If the criminal charge against the defendant is dismissed,
the defendant shall be released from any 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.