Senate Bill No. 1412

Introduced by Senator Nielsen

February 21, 2014

An act to amend Sections 1367, 1369.1, 1370.5, and 1375.5 of, and to add Sections 1368.2, 1370.02, and 1370.03 to, the Penal Code relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 1412, as introduced, Nielsen. Criminal proceedings: mentally incompetent offenders.

Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated and by which the defendant receives treatment, including, if applicable antipsychotic medication, with the goal of returning the defendant to competency. Existing law credits time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the term of any imprisonment for which the defendant is sentenced.

This bill would, similarly, prohibit a person from having his or her postrelease community supervision or mandatory supervision revoked while that person is mentally incompetent. The bill would establish a process by which the person’s mental competency is evaluated and by which the defendant receives treatment, including, if applicable, antipsychotic medication, with the goal of returning the person to competency. This bill would credit time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the period of revocation or the remaining mandatory supervision term that was suspended. By increasing the duties of local officials, including the county mental health director, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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

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

SECTION 1.  

Section 1367 of the Penal Code is amended to
read:

1367.  

(a) A person cannot be tried or adjudged to punishment
begin insert or have his or her postrelease community supervision or mandatory
supervision revoked end insert while that person is mentally incompetent. A
defendant is mentally incompetent for purposes of this chapter if,
as a result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner.

(b) Section 1370 shall apply to a person who is charged with a
felony and is incompetent as a result of a mental disorder. Sections
1367.1 and 1370.01 shall apply to a person who is charged with a
misdemeanor or misdemeanors only, and the judge finds reason
to believe that the defendant is mentally disordered, and may, as
a result of the mental disorder, be incompetent to stand trial.
Section 1370.1 shall apply to a person who is incompetent as a
result of a developmental disability and shall apply to a person
who is incompetent as a result of a mental disorder, but is also
developmentally disabled. begin insert Section 1370.02 shall apply to a person
whose postrelease community supervision has been revoked.
Section 1370.03 shall apply to a person whose mandatory
supervision has been revoked. end insert

SEC. 2.  

Section 1368.2 is added to the Penal Code, to read:

1368.2.  

(a) If, during the pendency of a revocation of
postrelease community supervision or mandatory supervision, a
doubt arises in the mind of the judge as to the mental competence
of the offender, the judge shall state that doubt in the record and
inquire of the attorney for the offender whether, in the opinion of
the attorney, the offender is mentally competent. If the offender
is not represented by counsel, the court shall appoint counsel. At
the request of the offender or his or her counsel or upon its own
motion, the court shall recess the proceedings for as long as may
be reasonably necessary to permit counsel to confer with the
offender and to form an opinion as to the mental competence of
the offender at that point in time.

(b) If counsel informs the court that he or she believes the
offender is or may be mentally incompetent, the court shall order
that the question of the offender’s mental competence be
determined in a hearing held pursuant to Section 1369. If counsel
informs the court that he or she believes the offender is mentally
competent, the court may nevertheless order a hearing. The hearing
shall be held in the superior court.

(c) When an order for a hearing into the present mental
competence of the offender has been issued, all revocation
proceedings shall be suspended until the question of the present
mental competence of the offender has been determined.

SEC. 3.  

Section 1369.1 of the Penal Code is amended to read:

1369.1.  

(a) As used in this chapter, “treatment facility”
includes a county jail. Upon the concurrence of the county board
of supervisors, the county mental health director, and the county
sheriff, the jail may be designated to provide medically approved
medication to defendants found to be mentally incompetent and
unable to provide informed consent due to a mental disorder,
pursuant to this chapter. In the case of Madera, Napa, and Santa
Clara Counties, the concurrence shall be with the board of
supervisors, the county mental health director, and the county
sheriff or the chief of corrections. The provisions of Sections 1370
and 1370.01 shall apply to antipsychotic medications provided in
a county jail, provided, however, that the maximum period of time
a defendant may be treated in a treatment facility pursuant to this
section shall not exceed six months. begin insert The provisions of Section
1370.02 shall apply to antipsychotic medications provided to a
person in a county jail pending revocation of postrelease
community supervision, provided, however, that the maximum
period of time a defendant may be treated in a treatment facility
pursuant to this section shall not exceed one year. The provisions
of Section 1370.03 shall apply to antipsychotic medications
provided to a person in a county jail pending revocation of
mandatory supervision, provided, however, that the maximum
period of time a defendant may be treated in a treatment facility
pursuant to this section shall not exceed the remaining period of
mandatory supervision imposed pursuant to subparagraph (B) of
paragraph (5) of subdivision (h) of Section 1170. end insert

(b) This section does not abrogate or limit any begin delete provision of end delete law
enacted to ensure the due process rights set forth in Sell v. United
States (2003) 539 U.S. 166.

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

SEC. 4.  

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

1370.02.  

(a) (1) If the offender is found mentally competent,
the postrelease community supervision revocation proceedings
shall resume. If the offender is found mentally incompetent, the
revocation proceedings shall be suspended until the person becomes
mentally competent, and the court shall order that, in the meantime,
the offender be delivered by the sheriff to an available public or
private treatment facility, approved by the county mental health
director, that will promote the offender’s speedy restoration to
mental competence, or placed on outpatient status as specified in
this section. Upon the filing of a certificate of restoration to
competence, the offender shall be returned to court in accordance
with Section 1372. The court shall transmit a copy of its order to
the county mental health director or his or her designee.

(2) Prior to making the order directing that the offender be
confined in a treatment facility or placed on outpatient status, the
court shall do all of the following:

(A) Order the county mental health director, or his or her
designee, to evaluate the offender and to submit to the court within
15 business days of the order a written recommendation as to
whether the offender should be required to undergo outpatient
treatment or committed to a treatment facility. A person shall not
be admitted to a treatment facility or placed on outpatient status
under this section without having been evaluated by the county
mental health director or his or her designee. A person shall not
be admitted to a state hospital under this section unless the county
mental health director finds that there is no less restrictive
appropriate placement available and the county mental health
director has a contract with the State Department of State Hospitals
for these placements.

(B) Hear and determine whether the offender, with advice of
his or her counsel, consents to the administration of antipsychotic
medication.

(i) If the offender, with advice of his or her counsel, consents
to the administration of antipsychotic medication, the court order
of commitment shall include confirmation that antipsychotic
medication may be given to the offender as prescribed by a treating
psychiatrist. The commitment order shall also indicate that, if the
offender withdraws consent for antipsychotic medication after the
treating psychiatrist complies with the provisions of subparagraph
(C), the offender shall be returned to court for a hearing in
accordance with this subdivision regarding whether antipsychotic
medication shall be administered involuntarily.

(ii) If the offender does not consent to the administration of
antipsychotic medication, the court shall hear and determine
whether any of the following are true:

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

(II) The offender is a danger to others, in that the offender has
inflicted, attempted to inflict, or made a serious threat of inflicting
substantial physical harm on another while in custody, or the
offender 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 offender 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 offender’s present
mental condition, including a consideration of past behavior of the
offender within six years prior to the time the offender last
attempted to inflict, inflicted, or threatened to inflict substantial
physical harm on another, and other relevant evidence.

(iii) If the court finds any of the conditions described in clause
(ii) to be true, the court shall issue an order authorizing the
treatment facility to involuntarily administer antipsychotic
medication to the offender when and as prescribed by the offender’s
treating psychiatrist.

(iv) 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.

(v) A report made pursuant to subdivision (b) shall include a
description of any antipsychotic medication administered to the
offender and its effects and side effects, including effects on the
offender’s appearance or behavior that would affect the offender’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 offender is confined in a state hospital or other
treatment facility or placed on outpatient status, either the offender
or the people may request that the court review an order made
pursuant to this subdivision. The offender, 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 offender consented to antipsychotic medication as
described in clause (i) of subparagraph (B), but subsequently
withdraws his or her consent, or, if involuntary antipsychotic
medication was not ordered pursuant to clause (ii) 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 offender for antipsychotic medication. If informed consent
is not obtained from the offender, and the treating psychiatrist is
of the opinion that the offender lacks capacity to make decisions
regarding antipsychotic medication as specified in subclause (I)
of clause (ii) of subparagraph (B), or that the offender is a danger
to others as specified in subclause (II) of clause (ii) of subparagraph
(B), the committing court shall be notified of this, including an
assessment of the current mental status of the offender and the
opinion of the treating psychiatrist that involuntary antipsychotic
medication has become medically necessary and appropriate. The
court shall provide copies of the report to the prosecuting attorney
and to the attorney representing the offender and shall set a hearing
to determine whether involuntary antipsychotic medication should
be ordered.

(3) When the court, after considering the placement
recommendation of the county mental health director required in
paragraph (2), orders that the offender be confined in a public or
private treatment facility, the court shall provide copies of the
following documents, which shall be taken with the offender to
the treatment facility where the offender 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) Arrest reports prepared by the police department or other
law enforcement agency.

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

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

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

(5) (A) If the offender is committed or transferred to a public
or private treatment facility approved by the county mental health
director, the court may, upon receiving the written recommendation
of the county mental health director, transfer the offender to another
public or private treatment facility approved by the county mental
health director. In the event of dismissal of the revocation
proceedings before the offender recovers competence, the person
shall be subject to the applicable provisions of Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code. Where either the offender or the prosecutor chooses to
contest the 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 offender 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.

(B) Prior to making an order for transfer under this paragraph,
the court shall notify the offender, the attorney of record for the
offender, the prosecuting attorney, and the county mental health
director or his or her designee.

(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the treatment facility to
which the offender is confined shall make a written report to the
court and the county mental health director or his or her designee,
concerning the offender’s progress toward recovery of mental
competence.

(2) Where the offender is on outpatient status, the outpatient
treatment staff shall make a written report to the county mental
health director concerning the offender’s progress toward recovery
of mental competence. Within 90 days of placement on outpatient
status, the county mental health director shall report to the court
on this matter.

(3) If the offender has not recovered mental competence, but
the report discloses a substantial likelihood that the offender will
regain mental competence in the foreseeable future, the offender
shall remain in the treatment facility or on outpatient status.
Thereafter, at six-month intervals or until the offender becomes
mentally competent, reporting shall be as follows:

(A) Where the offender 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 county mental health
director or a designee regarding the offender’s progress toward
recovery of mental competence.

(B) Where the offender is on outpatient status, after the initial
90-day report, the outpatient treatment staff shall report to the
county mental health director on the offender’s progress toward
recovery, and the county mental health director shall report to the
court on this matter at six-month intervals.

(4) A copy of the reports required pursuant to paragraph (3)
shall be provided to the prosecutor and defense counsel by the
court.

(5) If the report indicates that there is no substantial likelihood
that the offender will regain mental competence in the foreseeable
future, the committing court shall order the offender 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
county mental health director or his or her designee.

(c) (1) If, at the end of one year from the date of commitment,
the offender has not recovered mental competence, the offender
shall be returned to the committing court. The court shall notify
the county mental health director or his or her designee of the
return and of any resulting court orders.

(2) Whenever an offender is returned to the court pursuant to
subdivision (b) or paragraph (1) of this subdivision and it appears
to the court that the offender is gravely disabled, as defined in
subparagraph (A) 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 offender to initiate conservatorship proceedings for the offender
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 county mental health director
or his or her designee and shall notify the county mental health
director or his or her designee of the outcome of the proceedings.

(d) The revocation petition remains subject to dismissal. If the
revocation petition is dismissed, the court shall transmit a copy of
the order of dismissal to the county mental health director or his
or her designee.

(e) If the petition is dismissed, the offender shall be released
from commitment ordered pursuant to this section, but without
prejudice to the initiation of proceedings that may be appropriate
under Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code.

SEC. 5.  

Section 1370.03 is added to the Penal Code, to read:

1370.03.  

(a) If the offender is found mentally competent, the
mandatory supervision revocation proceedings shall resume. If the
offender is found mentally incompetent, the revocation proceedings
shall be suspended until the person becomes mentally competent,
and the court shall order the commencement of the treatment and
determination process specified in subdivisions (a) and (b) of
Section 1370.02.

(b) If, at the end of the maximum term of commitment imposed
at the original sentencing hearing pursuant to subdivision (h) of
Section 1170 of the Penal Code, the offender has not recovered
mental competence, the offender shall be returned to the
committing court. The court shall notify the county mental health
director or his or her designee of the return and of any resulting
court orders.

(c) Whenever an offender is returned to the court without
recovering mental competence or upon a finding that it is unlikely
that the person will regain mental competence pursuant to
paragraph (5) of subdivision (b) of Section 1370.02, and it appears
to the court that the offender is gravely disabled, as defined in
subparagraph (A) 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 offender to initiate conservatorship proceedings for the offender
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 county mental health director
or his or her designee and shall notify the county mental health
director or his or her designee of the outcome of the proceedings.

(d) If the offender completes the full term originally imposed,
the offender shall be released from any commitment ordered under
this section, but without prejudice to the initiation of any
proceedings which may be appropriate under Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code.

SEC. 6.  

Section 1370.5 of the Penal Code is amended to read:

1370.5.  

(a)  begin delete Every end delete begin insert A end insert person committed to a state hospital or
other public or private mental health facility pursuant to the
provisions of Section 1370, 1370.01, begin insert 1370.02, 1370.03, end insert or 1370.1,
who escapes from or who escapes while being conveyed to or from
a state hospital or facility, is punishable by imprisonment in begin delete the end delete begin insert a end insert
county jail not to exceed one year or in the state prison for a
determinate term of one year and one day. The term of
imprisonment imposed pursuant to this section shall be served
consecutively to any other sentence or commitment.

(b) The medical director or person in charge of a state hospital
or other public or private mental health facility to which a person
has been committed pursuant to the provisions of Section 1370,
1370.01, begin insert 1370.02, 1370.03, end insert or 1370.1 shall promptly notify the
chief of police of the city in which the hospital or facility is located,
or the sheriff of the county if the hospital or facility is located in
an unincorporated area, of the escape of the person, and shall
request the assistance of the chief of police or sheriff in
apprehending the person, and shall within 48 hours of the escape
of the person orally notify the court that made the commitment,
the prosecutor in the case, and the Department of Justice of the
escape.

SEC. 7.  

Section 1375.5 of the Penal Code is amended to read:

1375.5.  

begin insert (a) end insert begin insert   end insert Time spent by a defendant in a hospital or other
facility as a result of a commitment therein as a mentally
incompetent pursuant to this chapter shall be credited on the term
of begin delete any end delete imprisonment, if any, for which the defendant is sentenced
in the criminal case which was suspended pursuant to Section 1370
or 1370.1.

begin insert

(b) Time spent by an offender in a hospital or other facility as
a result of a commitment as a mentally incompetent pursuant to
Section 1370.02 or 1370.03 shall be credited toward any period
of revocation or remaining mandatory supervision term that was
suspended.

end insert begin delete

As

end delete

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

SEC. 8.  

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