Amended in Assembly April 23, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2543

Introduced by Assembly Member Levine

February 21, 2014

An act to amend Sections begin delete 1026 and 1370 end delete begin insert 1027 and 1369 end insert of the Penal Code, and to add Section 7233 to the Welfare and Institutions Code, relating to state hospitals.

LEGISLATIVE COUNSEL’S DIGEST

AB 2543, as amended, Levine. State hospitals: placement evaluations.

Existing law establishes the State Department of State Hospitals for the administration of state hospitals and provides for the involuntary confinement of certain individuals in those state hospitals, including defendants who have been found incompetent to stand trial and defendants found to be guilty of a crime, or who have plead not guilty by reason of insanity, and found to be insane at the time he or she committed the crime. begin insert Existing law requires a court, when a defendant pleads not guilty by reason of insanity or if there is a question as to the defendant’s mental competence, to appoint a specified number of psychiatrists or psychologists to examine the defendant. end insert

begin delete

Existing law requires a court, except as specified, to direct that a defendant described above be confined in a state hospital or any other appropriate public or private treatment facility, or placed on outpatient status. Existing law requires the court, prior to making the order directing placement, to order the community program director, as defined, to evaluate the defendant and to submit a written recommendation as to whether the defendant should be placed on outpatient status or confined in a state hospital or other treatment facility.

end delete

This bill would require the State Department of State Hospitals to establish, within the department, a pool of psychiatrists and psychologists with forensic skills and would require evaluation panels to be created from the pool of psychiatrists and psychologists, as specified. The bill would require the court to order an evaluation panel to evaluate begin delete the end delete begin insert a end insert defendant begin delete and to submit a written recommendation relating to the defendant’s placement end delete begin insert who pleads not guilty by reason of insanity or who may be mentally incompetent end insert . The bill would make conforming changes.

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1027 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

1027.  

(a) When a defendant pleads not guilty by reason of
insanity the court shall begin delete select and appoint two, and may select and
appoint three, psychiatrists, or licensed psychologists who have a
doctoral degree in psychology and at least five years of
postgraduate experience in the diagnosis and treatment of emotional
and mental disorders end delete begin insert appoint an evaluation panel that has been
convened pursuant to Section 7233 of the Welfare and Institutions
Code end insert , to examine the defendant and investigate his or her mental
status. It is the duty of the begin delete psychiatrists or psychologists selected
and appointed end delete begin insert evaluation panel end insert to make the examination and
investigation, and to testify, whenever summoned, in any
proceeding in which the sanity of the defendant is in question. The
begin delete psychiatrists or psychologists appointed by the court end delete begin insert members of
the evaluation panel end insert shall be allowed, in addition to their actual
traveling expenses, those fees that in the discretion of the court
seem just and reasonable, having regard to the services rendered
by the witnesses. The fees allowed shall be paid by the county
where the indictment was found or in which the defendant was
held for trial begin insert to the State Department of State Hospitals end insert .

(b) Any report on the examination and investigation made
pursuant to subdivision (a) shall include, but not be limited to, the
psychological history of the defendant, the facts surrounding the
commission of the acts forming the basis for the present charge
used by the begin delete psychiatrist or psychologist in making his or her end delete
begin insert evaluation panel in making the panel’s end insert examination of the
defendant, the present psychological or psychiatric symptoms of
the defendant, if any, the substance abuse history of the defendant,
the substance use history of the defendant on the day of the offense,
a review of the police report for the offense, and any other credible
and relevant material reasonably necessary to describe the facts
of the offense.

(c) This section does not presume that begin delete a psychiatrist or
psychologist end delete begin insert an evaluation panel end insert can determine whether a
defendant was sane or insane at the time of the alleged offense.
This section does not limit a court’s discretion to admit or exclude,
pursuant to the Evidence Code, psychiatric or psychological
evidence about the defendant’s state of mind or mental or emotional
condition at the time of the alleged offense.

(d) Nothing contained in this section shall be deemed or
construed to prevent any party to any criminal action from
producing any other expert evidence with respect to the mental
status of the defendant. If expert witnesses are called by the district
attorney in the action, they shall only be entitled to those witness
fees as may be allowed by the court.

(e)  begin delete Any psychiatrist or psychologist end delete begin insert The members of an
evaluation panel end insert appointed by the court may be called by either
party to the action or by the court, and shall be subject to all legal
objections as to competency and bias and as to qualifications as
an expert. When called by the court or by either party to the action,
the court may examine the begin delete psychiatrist or psychologist end delete begin insert members
of the evaluation panel end insert , as deemed necessary, but either party shall
have the same right to object to the questions asked by the court
and the evidence adduced as though the begin delete psychiatrist or psychologist
were a witness end delete begin insert members of the panel were witnesses end insert for the adverse
party. When begin delete the psychiatrist or psychologist end delete begin insert a member of the panel end insert
is called and examined by the court, the parties may cross-examine
him or her in the order directed by the court. When called by either
party to the action, the adverse party may examine him or her the
same as in the case of any other witness called by the party.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1369 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1369.  

A trial by court or jury of the question of mental
competence shall proceed in the following order:

(a) The court shall appoint begin delete a psychiatrist or licensed psychologist end delete
begin insert an evaluation panel that has been convened pursuant to Section
7233 of the Welfare and Institutions Code end insert , and any other expert
begin insert with forensic experience end insert the court may deem appropriate, to
examine the defendant. In any case where the defendant or the
defendant’s counsel informs the court that the defendant is not
seeking a finding of mental incompetence, begin delete the court shall appoint
two psychiatrists, licensed psychologists, or a combination thereof.
One of the psychiatrists or licensed psychologists may be named
by the defense and one may be named by the prosecution end delete begin insert the
defense and the prosecution shall each confer with the State
Department of State Hospitals regarding the selection of the
panelists end insert . The examining begin delete psychiatrists or licensed psychologists end delete
begin insert panelists end insert shall evaluate the nature of the defendant’s mental
disorder, if any, the defendant’s ability or inability to understand
the nature of the criminal proceedings or assist counsel in the
conduct of a defense in a rational manner as a result of a mental
disorder and, if within the scope of their licenses and appropriate
to their opinions, whether or not treatment with antipsychotic
medication is medically appropriate for the defendant and whether
antipsychotic medication is likely to restore the defendant to mental
competence. If an examining begin delete psychologist end delete begin insert panelist end insert is of the opinion
that antipsychotic medication may be medically appropriate for
the defendant and that the defendant should be evaluated by a
psychiatrist to determine if antipsychotic medication is medically
appropriate, the begin delete psychologist end delete begin insert panelist end insert shall inform the court of this
opinion and his or her recommendation as to whether a psychiatrist
should examine the defendant. The examining begin delete psychiatrists or
licensed psychologists end delete begin insert panelists end insert shall also address the issues of
whether the defendant has capacity to make decisions regarding
antipsychotic medication and whether the defendant is a danger
to self or others. If the defendant is examined by a psychiatrist and
the psychiatrist forms an opinion as to whether or not treatment
with antipsychotic medication is medically appropriate, the
psychiatrist shall inform the court of his or her opinions as to the
likely or potential side effects of the medication, the expected
efficacy of the medication, possible alternative treatments, and
whether it is medically appropriate to administer antipsychotic
medication in the county jail. If it is suspected the defendant is
developmentally disabled, the court shall appoint the director of
the regional center for the developmentally disabled established
under Division 4.5 (commencing with Section 4500) of the Welfare
and Institutions Code, or the designee of the director, to examine
the defendant. The court may order the developmentally disabled
defendant to be confined for examination in a residential facility
or state hospital.

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

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

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

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

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

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

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

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 7233 is added to the end insert begin insert Welfare and Institutions
Code end insert begin insert , to read: end insert

begin insert

begin insert 7233. end insert   

(a) The State Department of State Hospitals shall
establish a pool of psychiatrists and psychologists with forensic
skills who are employees of the department from which evaluation
panels shall be created pursuant to subdivision (b).

(b) The department shall create evaluation panels with each
panel consisting of three to five forensic psychiatrists or
psychologists from the pool created in subdivision (a).

end insert

begin delete

SECTION 1.  

Section 1026 of the Penal Code is amended to read:

1026.  

(a) When a defendant pleads not guilty by reason of
insanity, and also joins with it another plea or pleas, the defendant
shall first be tried as if only that other plea or pleas had been
entered, and in that trial the defendant shall be conclusively
presumed to have been sane at the time the offense is alleged to
have been committed. If the jury finds the defendant guilty, or if
the defendant pleads only not guilty by reason of insanity, then
the question whether the defendant was sane or insane at the time
the offense was committed shall be promptly tried, either before
the same jury or before a new jury in the discretion of the court.
In that trial, the jury shall return a verdict either that the defendant
was sane at the time the offense was committed or was insane at
the time the offense was committed. If the verdict or finding is
that the defendant was sane at the time the offense was committed,
the court shall sentence the defendant as provided by law. If the
verdict or finding is that the defendant was insane at the time the
offense was committed, the court, unless it appears to the court
that the sanity of the defendant has been recovered fully, shall
direct that the defendant be confined in a state hospital for the care
and treatment of the mentally disordered or any other appropriate
public or private treatment facility approved by an evaluation panel
created pursuant to Section 7233 of the Welfare and Institutions
Code, or the court may order the defendant placed on outpatient
status pursuant to Title 15 (commencing with Section 1600) of
Part 2.

(b) 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 order the evaluation panel 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 placed on outpatient status or confined in a
state hospital or 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 evaluation panel. If, however, it appears to the court that
the sanity of the defendant has been recovered fully, the defendant
shall be remanded to the custody of the sheriff until the issue of
sanity shall have been finally determined in the manner prescribed
by law. A defendant committed to a state hospital or other treatment
facility or placed on outpatient status pursuant to Title 15
(commencing with Section 1600) of Part 2 shall not be released
from confinement, parole, or outpatient status unless and until the
court which committed the person shall, after notice and hearing,
find and determine that the person’s sanity has been restored. This
section shall not prevent the transfer of the patient from one state
hospital to any other state hospital by proper authority. This section
shall not prevent the transfer of the patient to a hospital in another
state in the manner provided in Section 4119 of the Welfare and
Institutions Code.

(c) 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 evaluation panel that the defendant be transferred to a public
or private treatment facility approved by the evaluation panel,
order the defendant transferred to that facility. If the defendant is
committed or transferred to a public or private treatment facility
approved by the evaluation panel, the court may, upon receiving
the written recommendation of the evaluation panel, order the
defendant transferred to a state hospital or to another public or
private treatment facility approved by the evaluation panel. When
either the defendant or the prosecuting attorney chooses to contest
either kind of order of transfer, a petition may be filed in the court
requesting a hearing which shall be held if the court determines
that sufficient grounds exist. At that hearing, the prosecuting
attorney or the defendant may present evidence bearing on the
order of transfer. The court shall use the same procedures and
standards of proof as used in conducting probation revocation
hearings pursuant to Section 1203.2.

(d) 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 evaluation panel.

(e) When the court, after considering the placement
recommendation of the evaluation panel required in subdivision
(b), 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:

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

(2) A computation or statement setting forth the maximum term
of commitment in accordance with Section 1026.5.

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

(4) State summary criminal history information.

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

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

(7) The evaluation panel’s placement recommendation report.

(f) If the defendant is confined in a state hospital or other
treatment facility as an inpatient, the medical director of the facility
shall, at six-month intervals, submit a report in writing to the court
and the evaluation panel setting forth the status and progress of
the defendant. The court shall transmit copies of these reports to
the prosecutor and defense counsel.

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

(h) For purposes of Sections 1026.1 to 1026.6, inclusive,
“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 5709.8 of the Welfare and
Institutions Code.

(i) For purposes of this section, “evaluation panel” means an
evaluation panel created pursuant to Section 7233 of the Welfare
and Institutions Code.

SEC. 2.  

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 an evaluation panel
created pursuant to Section 7233 of the Welfare and Institutions
Code that will promote the defendant’s speedy restoration to mental
competence, or be 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 evaluation panel.

(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 must 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 evaluation panel 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 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 evaluation panel. The evaluation panel 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, 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 the treatment
facility to involuntarily administer antipsychotic medication to the
defendant when and as prescribed by the defendant’s treating
psychiatrist. 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 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 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.

(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 evaluation panel’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) (i) 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 evaluation panel that the defendant be transferred
to a public or private treatment facility approved by the evaluation
panel, order the defendant transferred to that facility. If the
defendant is committed or transferred to a public or private
treatment facility approved by the evaluation panel, the court may,
upon receiving the written recommendation of the evaluation panel,
transfer the defendant to a state hospital or to another public or
private treatment facility approved by the evaluation panel. 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.

(ii) 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 evaluation panel.

(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) 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 six months after the order was made
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) (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 evaluation panel concerning the
defendant’s progress toward recovery of mental competence. When
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 evaluation panel regarding the defendant’s progress
toward recovery of mental competence. When 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 evaluation panel.

(2) When the court has issued an order authorizing the treating
facility to involuntarily administer antipsychotic medication to the
defendant, the reports made at six-month intervals 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 evaluation panel.

(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 evaluation panel 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
evaluation panel 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 evaluation panel, 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) 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) 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 evaluation panel.

(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) For purposes of this section, “evaluation panel” means an
evaluation panel created pursuant to Section 7233 of the Welfare
and Institutions Code.

(i) This section shall not 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.

SEC. 3.  

Section 7233 is added to the Welfare and Institutions
Code, to read:

7233.  

(a) The State Department of State Hospitals shall
establish a pool of psychiatrists and psychologists with forensic
skills who are employees of the department from which evaluation
panels shall be created pursuant to subdivision (b).

(b) The department shall create evaluation panels with each
panel consisting of three to five, inclusive, forensic psychiatrists
or psychologists from the pool created in subdivision (a).

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