Amended in Senate May 7, 2014

Senate Bill No. 1412

Introduced by Senator Nielsen

February 21, 2014

An act to amend Sections 1367, begin insert 1368, 1368.1, 1369, end insert 1369.1, begin insert 1370, 1370.01, 1370.1, end insert 1370.5, begin insert 1371, 1373, end insert and 1375.5 of, begin delete and end delete to add begin delete Sections 1368.2, 1370.02, and 1370.03 end delete begin insert Section 1370.02 end insert to, begin insert and to repeal Section 1367.1 of, end insert the Penal begin delete Code end delete begin insert Code, end insert relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

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

begin delete

Existing

end delete

begin insert (1) end insert begin insert   end insert begin insert Existing end insert 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 begin delete applicable end delete begin insert applicable, end insert 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 begin insert probation, mandatory supervision, end insert postrelease community begin delete supervision or mandatory supervision end delete begin insert supervision, or parole end insert 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 begin delete mandatory supervision end delete term begin insert of supervision end insert that was suspended. begin insert If a defendant is found mentally incompetent during postrelease community supervision or parole revocation hearings, the bill would allow the court to order the defendant to undergo treatment, dismiss the pending revocation matter and return the defendant to supervision, in which case the bill would allow the court to modify the terms and conditions of supervision or refer the matter to the public guardian of the county to initiate conservatorship proceedings, or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant. end insert By increasing the duties of local officials, including the county mental health director begin insert and county public guardian end insert , this bill would impose a state-mandated local program.

begin insert

If a person is subject to parole due to a conviction for an offense of first or 2nd degree murder or a registerable sex offense in which one or more of the victims of the offense was a child under 14 years of age, the bill would require court to remand the person to the custody of the Department of Corrections and Rehabilitation upon a finding of probable cause that the person violated a term or condition of parole, if the person is found mentally incompetent.

end insert begin insert

The bill would also make conforming changes.

end insert begin insert

(2) During the pendency of an action in a case in which the defendant has been charged with a misdemeanor, if the defendant’s behavior leads the judge to conclude that the defendant is mentally disordered and incompetent to stand trial, existing law requires the judge to state the conclusion in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally disordered. Existing law requires the court to order the defendant to be referred for evaluation and treatment, as specified, if counsel for the defendant informs the court that he or she believes the defendant is or may be mentally disordered.

end insert begin insert

This bill would repeal those provisions.

end insert begin delete

The

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begin insert (3) end insert begin insert   end insert begin insert The end insert 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
or have his or her begin insert probation, mandatory supervision, end insert postrelease
community begin delete supervision or mandatory supervision end delete begin insert supervision, or
parole end insert revoked 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 begin insert or alleged to have violated the terms of probation or
mandatory supervision end insert and is incompetent as a result of a mental
disorder. begin delete Sections 1367.1 and end delete begin insert Section end insert 1370.01 shall apply to a
person who is charged with a misdemeanor or misdemeanors only,
begin insert or a violation of formal or informal probation for a misdemeanor, end insert
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. Section 1370.02
shall apply to a person begin delete whose postrelease community supervision
has been revoked. end delete begin insert alleged to have violated the terms of his or her
postrelease community supervision or parole. end insert begin delete Section 1370.03 shall
apply to a person whose mandatory supervision has been revoked. end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1367.1 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

1367.1.  

(a) During the pendency of an action and prior to
judgment in a case when the defendant has been charged with a
misdemeanor or misdemeanors only, if the defendant’s behavior
or other evidence leads the judge to conclude that there is reason
to believe that the defendant is mentally disordered and as a result
may be incompetent to stand trial, the judge shall state this
conclusion and his or her reasons in the record. The judge shall
inquire of the attorney for the defendant whether, in the opinion
of the attorney, the defendant is mentally disordered. If the
defendant is not represented by counsel, the court shall appoint
counsel. At the request of the defendant 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 defendant and to form an opinion as to whether the
defendant is mentally disordered at that time.

(b) If counsel informs the court that he or she believes the
defendant is or may be mentally disordered, the court shall order
that the defendant be referred for evaluation and treatment in
accordance with Section 4011.6. If counsel informs the court that
he or she believes the defendant is not mentally disordered, the
court may nevertheless order that the defendant be referred for
evaluation and treatment in accordance with Section 4011.6. The
judge may order the facility providing evaluation and treatment
to provide the court a copy of the discharge summary at the
conclusion of evaluation and treatment.

(c) Except as provided in Section 1368.1, when an order for
evaluation and treatment in accordance with Section 4011.6 has
been issued, all proceedings in the criminal prosecution shall be
suspended until the evaluation and treatment has been concluded.

If a jury has been impaneled and sworn to try the defendant, the
jury may be discharged if it appears to the court that undue hardship
to the jurors would result if the jury is retained on call.

(d) When evaluation and treatment ordered pursuant to this
section has concluded, the defendant shall be returned to court. If
it appears to the judge that the defendant is competent to stand
trial, the criminal process shall resume, the trial on the offense or
offenses charged shall proceed, and judgment may be pronounced.
If the judge has reason to believe that the defendant may be
incompetent to stand trial despite the treatment ordered pursuant
to this section, the judge may order that the question of the
defendant’s mental competence to stand trial is to be determined
in a hearing held pursuant to Sections 1368.1 and 1369. If the
defendant is found mentally incompetent, then the provision of
Section 1370.01 shall apply.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 1368 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1368.  

(a) If, during the pendency of an action and prior to
judgment, begin insert or during revocation proceedings for a violation of
probation, mandatory supervision, postrelease community
supervision, or parole, end insert a doubt arises in the mind of the judge as
to the mental competence of the defendant, he or she shall state
that doubt in the record and inquire of the attorney for the defendant
whether, in the opinion of the attorney, the defendant is mentally
competent. If the defendant is not represented by counsel, the court
shall appoint counsel. At the request of the defendant 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 defendant and to form an opinion as to
the mental competence of the defendant at that point in time.

(b) If counsel informs the court that he or she believes the
defendant is or may be mentally incompetent, the court shall order
that the question of the defendant’s mental competence is to be
determined in a hearing which is held pursuant to Sections 1368.1
and 1369. If counsel informs the court that he or she believes the
defendant is mentally competent, the court may nevertheless order
a hearing. Any hearing shall be held in the superior court.

(c) Except as provided in Section 1368.1, when an order for a
hearing into the present mental competence of the defendant has
been issued, all proceedings in the criminal prosecution shall be
suspended until the question of the present mental competence of
the defendant has been determined.

If a jury has been impaneled and sworn to try the defendant, the
jury shall be discharged only if it appears to the court that undue
hardship to the jurors would result if the jury is retained on call.

If the defendant is declared mentally incompetent, the jury shall
be discharged.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 1368.1 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1368.1.  

(a) If the action is on a complaint charging a felony,
proceedings to determine mental competence shall be held prior
to the filing of an information unless the counsel for the defendant
requests a preliminary examination under the provisions of Section
859b. At such preliminary examination, counsel for the defendant
may (1) demur, (2) move to dismiss the complaint on the ground
that there is not reasonable cause to believe that a felony has been
committed and that the defendant is guilty thereof, or (3) make a
motion under Section 1538.5.

(b) If the action is on a complaint charging a misdemeanor,
counsel for the defendant may (1) demur, (2) move to dismiss the
complaint on the ground that there is not reasonable cause to
believe that a public offense has been committed and that the
defendant is guilty thereof, or (3) make a motion under Section
1538.5.

begin insert

(c) If the proceeding involves an alleged violation of probation,
mandatory supervision, postrelease community supervision, or
parole, counsel for the defendant may move to reinstate supervision
on the ground that there is not probable cause to believe that the
defendant violated the terms of his or her supervision.

end insert begin delete

(c)

end delete

begin insert (d) end insert  In ruling upon any demurrer or motion described in
subdivision begin delete (a) or (b), end delete begin insert (a), (b), or (c), end insert the court may hear any matter
which is capable of fair determination without the personal
participation of the defendant.

begin delete

(d)

end delete

begin insert (e) end insert  A demurrer or motion described in subdivision begin delete (a) or (b) end delete
begin insert (a), (b), or (c) end insert shall be made in the court having jurisdiction over
the complaint. The defendant shall not be certified until the
demurrer or motion has been decided.

begin delete

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.

end delete

begin insert

begin insert SEC. 5. 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.  

begin delete A end delete begin insert Except as stated in subdivision (g), a end insert trial by court or
jury of the question of mental competence shall proceed in the
following order:

(a) The court shall appoint a psychiatrist or licensed
psychologist, and any other expert 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, 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. The
examining psychiatrists or licensed psychologists 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 psychologist 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 psychologist shall inform the court of this opinion and his or
her recommendation as to whether a psychiatrist should examine
the defendant. The examining psychiatrists or licensed
psychologists 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

(g) Only a court trial is required to determine competency in
any proceeding for a violation of probation, mandatory
supervision, postrelease community supervision, or parole.

end insert

begin delete SEC. 3. end delete
begin insert SEC. 6. end insert   

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. 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 begin delete 1370.03 end delete begin insert 1370 end insert 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.

(b) This section does not abrogate or limit any 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.

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 1370 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1370.  

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

(B) If the defendant is found mentally incompetent, the trial begin insert ,
the hearing on the alleged violation, end insert or begin insert the end insert 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 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 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 committed to a state hospital or to any other treatment
facility. No person shall 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, 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 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.

(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) 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 community program director
for the county or region of commitment, or a designee, concerning
the defendant’s progress toward recovery of mental competence.
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.
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 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 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, begin insert or the
maximum term of imprisonment provided by law for a violation
of probation or mandatory supervision, end insert 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 begin insert the end insert criminal
charges begin insert or revocation proceedings end insert 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)  begin delete The end delete begin insert With the exception of proceedings alleging a violation
of mandatory supervision, the end insert 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. begin insert In a proceeding
alleging a violation of mandatory supervision, if the court finds
that the person is not gravely disabled as described in paragraph
(2) of subdivision (c), the court shall reinstate mandatory
supervision and may modify the terms and conditions of supervision
to include appropriate mental health treatment or refer the matter
to a local mental health court, reentry court, or other collaborative
justice court available for improving the mental health of the
defendant. end insert

(e) If the criminal begin delete charge end delete begin insert action end insert 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.

begin delete

(i) This section shall become operative on July 1, 2012.

end delete

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 1370.01 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1370.01.  

(a) (1) 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. If the defendant
is found mentally incompetent, the begin delete trial or end delete begin insert trial, end insert judgment begin insert , or
hearing on the alleged violation end insert shall be suspended until the person
becomes mentally competent, and the court shall order that (A) in
the meantime, the defendant be delivered by the sheriff to an
available public or private treatment facility approved by the county
mental health director that will promote the defendant’s speedy
restoration to mental competence, or placed on outpatient status
as specified in this section, and (B) upon the filing of a certificate
of restoration to competence, the defendant 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 defendant be
confined in a treatment facility or placed on outpatient status, the
court shall proceed as follows:

(A) The court shall order the county mental health director or
his or her 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 committed to a treatment facility. No
person shall 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. No
person shall 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) The court shall hear and determine whether the defendant,
with advice of his or her counsel, consents to the administration
of antipsychotic medication, and shall proceed as follows:

(i) 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 this subdivision regarding whether
antipsychotic medication shall be administered involuntarily.

(ii) If the defendant does not consent to the administration of
medication, 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.

(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 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 (ii) 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 (ii) and does not meet the criteria under subclause (II) of
clause (ii).

(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) Any report made pursuant to 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 (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 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 as specified
in subclause (I) of clause (ii) of subparagraph (B), or that the
defendant 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 defendant 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 defendant and shall set a hearing to determine whether
involuntary antipsychotic medication should be ordered in the
manner described in subparagraph (B).

(3) When the court, after considering the placement
recommendation of the county mental health director required in
paragraph (2), orders that the defendant be confined in a public or
private treatment facility, the court shall provide copies of the
following documents which shall be taken with the defendant to
the 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 county mental health director’s placement
recommendation report.

(4) A person subject to commitment under 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) If the defendant 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 defendant to
another public or private treatment facility approved by the county
mental health 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 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 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 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 county mental health director or
his or her designee.

(b) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the treatment facility to
which the defendant is confined shall make a written report to the
court and the county mental health director or his or her designee,
concerning the defendant’s progress toward recovery of mental
competence. Where the defendant is on outpatient status, the
outpatient treatment staff shall make a written report to the county
mental health director concerning the defendant’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. 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 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 county mental health director or a designee regarding
the defendant’s progress toward recovery of mental competence.
Where the defendant is on outpatient status, after the initial 90-day
report, the outpatient treatment staff shall report to the county
mental health director on the defendant’s progress toward recovery,
and the county mental health 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 county mental
health director or his or her designee.

(c) (1) If, at the end of one year 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 misdemeanor complaint, whichever is shorter, the defendant
has not recovered mental competence, the defendant 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 any defendant is returned to the court pursuant
to subdivision (b) or paragraph (1) of this subdivision and it appears
to the court that the defendant 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 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 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 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 county mental
health director or his or her 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 which may be appropriate under Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions
Code.

begin delete

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.

end delete

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 1370.02 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1370.02. end insert   

(a) If the defendant is found mentally competent
during a postrelease community supervision or parole revocation
hearing, the revocation proceedings shall resume. The formal
hearing on the revocation shall occur within a reasonable time
after resumption of the proceedings, but in no event may the
defendant be detained in custody for over 180 days from the date
of arrest.

(b) If the defendant is found mentally incompetent, the court,
based upon consideration of the information and recommendations
contained in the expert reports required by Section 1369, shall
have discretion to order any of the following:

(1) (A) If the court determines that there is a reasonable
likelihood that the defendant may be restored to competency and
returned to court to face the revocation proceedings no later than
180 days from the date of the arrest of the defendant, the court
may order the defendant to undergo treatment as authorized by
Section 1370 or 1370.1 for restoring the defendant to competency,
except that:

(i) The initial written progress report due to the court pursuant
to subdivision (b) of Section 1370 shall be provided to the court
within 45 days and subsequent progress reports shall be provided
to the court at two-month intervals.

(ii) The initial written progress report due to the court under
subdivision (b) of Section 1370.1 shall be provided to the court
within 45 days and subsequent progress reports shall be provided
within 90 days.

(B) If the defendant is restored to competency within 180 days
of arrest, the defendant shall be returned to court under the
procedures required by Section 1372.

(C) If the defendant is not restored to competency within 180
days of arrest, the defendant shall be returned to court and the
court shall proceed under paragraph (2) or (3).

(2) Dismiss the pending revocation matter and return the
defendant to supervision. If the matter is dismissed pursuant to
this paragraph, the court may also:

(A) Modify the terms and conditions of supervision to include
appropriate mental health treatment.

(B) Refer the matter to the public guardian of the county of
commitment to initiate conservatorship proceedings.

(3) Refer the matter to any local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the defendant.

(c) Notwithstanding any other law, if a person subject to parole
pursuant to Section 3000.1 or paragraph (4) of subdivision (b) of
Section 3000 is found mentally incompetent, the court, upon a
finding of probable cause that the person violated a term or
condition of parole, shall remand the person to the custody of the
Department of Corrections and Rehabilitation and the jurisdiction
of the Board of Parole Hearings for the purpose of future parole
consideration. If the court finds no probable cause to believe that
the person violated a term or condition of parole, the court may
proceed under paragraph (2) or (3) of subdivision (b), or both.

end insert

begin delete

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.

end delete

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 1370.1 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1370.1.  

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

(B) If the defendant is found mentally incompetent and is
developmentally disabled, the trial or judgment shall be suspended
until the defendant becomes mentally competent.

(i) Except as provided in clause (ii) or (iii), the court shall
consider a recommendation for placement, which recommendation
shall be made to the court by the director of a regional center or
designee. In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff or other person
designated by the court to a state hospital or developmental center
for the care and treatment of the developmentally disabled or any
other available residential facility approved by the director of a
regional center for the developmentally disabled established under
Division 4.5 (commencing with Section 4500) of the Welfare and
Institutions Code as will promote the defendant’s speedy attainment
of mental competence, or be placed on outpatient status pursuant
to the provisions of Section 1370.4 and Title 15 (commencing with
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 developmentally disabled 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 developmentally
disabled 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 becoming competent, the court shall order that the
defendant be returned to the committing court pursuant to the
procedures set forth in paragraph (2) of subdivision (a) of Section
1372 or by another person designated by the court. The court shall
further determine conditions under which the person may be absent
from the placement for medical treatment, social visits, and other
similar activities. Required levels of supervision and security for
these activities shall be specified.

(D) The court shall transmit a copy of its order to the regional
center director or designee and to the Director of Developmental
Services.

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

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

(G) A defendant charged with a violent felony may be placed
on outpatient status, as specified in Section 1370.4 or 1600, only
if the court finds that the placement will not pose a danger to the
health or safety of others.

(H) As used in this section, “developmental disability” means
a disability that originates before an individual attains 18 years of
age, continues, or can be expected to continue, indefinitely and
constitutes a substantial handicap for the individual, and shall not
include other handicapping conditions that are solely physical in
nature. As defined by the Director of Developmental Services, in
consultation with the Superintendent of Public Instruction, this
term shall include intellectual disability, cerebral palsy, epilepsy,
and autism. This term shall also include handicapping conditions
found to be closely related to intellectual disability or to require
treatment similar to that required for individuals with an intellectual
disability, but shall not include other handicapping conditions that
are solely physical in nature.

(2) Prior to making the order directing that the defendant be
confined in a state hospital, developmental center, or other
residential facility, or be placed on outpatient status, the court shall
order the regional center director or 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 committed to a state hospital or developmental center or to any
other available residential facility approved by the regional center
director. A person shall not be admitted to a state hospital,
developmental center, or other residential facility or accepted for
outpatient status under Section 1370.4 without having been
evaluated by the regional center director or designee.

(3) When the court orders that the defendant be confined in a
state hospital or other secure treatment facility pursuant to clause
(ii) or (iii) of subparagraph (B) of paragraph (1), the court shall
provide copies of the following documents which shall be taken
with the defendant to the state hospital or other secure treatment
facility where the defendant is to be confined:

(A) State summary criminal history information.

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

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

(4) When the defendant is committed to a residential 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
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 a finding of mental incompetence
pursuant to this chapter arising out of a charge of a Section 290
offense.

(5) (A) If the defendant is committed or transferred to a state
hospital or developmental center pursuant to this section, the court
may, upon receiving the written recommendation of the executive
director of the state hospital or developmental center and the
regional center director that the defendant be transferred to a
residential facility approved by the regional center director, order
the defendant transferred to that facility. If the defendant is
committed or transferred to a residential facility approved by the
regional center director, the court may, upon receiving the written
recommendation of the regional center director, transfer the
defendant to a state hospital or developmental center or to another
residential facility approved by the regional center director.

In the event of dismissal of the criminal begin delete charges end delete begin insert action or
revocation proceedings end insert 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) or to
commitment or detention pursuant to a petition filed pursuant to
Section 6502 of the Welfare and Institutions Code.

The defendant or prosecuting attorney may contest either kind
of order of transfer by filing a petition with 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 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 regional center director or
designee.

(B) If the defendant is 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 another
facility, copies of the documents specified in paragraph (3) shall
be taken with the defendant to the new facility. 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).

(b) (1) Within 90 days of admission of a person committed
pursuant to subdivision (a), the executive director or designee of
the state hospital, developmental center, or other facility to which
the defendant is committed, or the outpatient supervisor where the
defendant is placed on outpatient status, shall make a written report
to the committing court and the regional center director or a
designee concerning the defendant’s progress toward becoming
mentally competent. If the defendant has not become mentally
competent, but the report discloses a substantial likelihood the
defendant will become mentally competent within the next 90
days, the court may order that the defendant shall remain in the
state hospital, developmental center, or other facility or on
outpatient status for that period of time. Within 150 days of an
admission made pursuant to subdivision (a) or if the defendant
becomes mentally competent, the executive director or designee
of the hospital or developmental center or person in charge of the
facility or the outpatient supervisor shall report to the court and
the regional center director or his or her designee regarding the
defendant’s progress toward becoming mentally competent. The
court shall provide to the prosecutor and defense counsel copies
of all reports under this section. If the report indicates that there
is no substantial likelihood that the defendant has become mentally
competent, 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
regional center director or designee and to the executive director
of the developmental center.

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

(3) 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. A copy of this order
shall be sent to the regional center director or designee and to the
executive director of the developmental center.

(4) 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.

(c) (1) (A) 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,
begin insert or the maximum term of imprisonment provided by law for a
violation of probation or mandatory supervision, end insert whichever is
shorter, a defendant who has not become mentally competent shall
be returned to the committing court.

(B) The court shall notify the regional center director or designee
and the executive director of the developmental center of that
return and of any resulting court orders.

(2)  begin delete In end delete begin insert (A) end insert begin insert   end insert begin insert Except as provided in subparagraph (B), in end insert the event
of dismissal of the criminal charges before the defendant becomes
mentally competent, the defendant 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), or to commitment and detention pursuant to a petition filed
pursuant to Section 6502 of the Welfare and Institutions Code. If
it is found that the person is not subject to commitment or detention
pursuant to the applicable provision of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code) or to commitment or detention
pursuant to a petition filed pursuant to Section 6502 of the Welfare
and Institutions Code, the individual shall not be subject to further
confinement pursuant to this article and the criminal action remains
subject to dismissal pursuant to Section 1385. The court shall notify
the regional center director and the executive director of the
developmental center of any dismissal.

begin insert

(B) In revocation proceedings alleging a violation of mandatory
supervision in which the defendant remains incompetent upon
return to court under subparagraph (A), the defendant 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), or to commitment and detention
pursuant to a petition filed pursuant to Section 6502 of the Welfare
and Institutions Code. If it is found that the person is not subject
to commitment or detention pursuant to the applicable provision
of the Lanternman-Petris-Short Act (Part 1 (commencing with
Section 5000) of Division 5 of the Welfare and Institutions Code)
or to commitment or detention pursuant to a petition filed pursuant
to Section 6502 of the Welfare and Institutions Code, the court
shall reinstate mandatory supervision and modify the terms and
conditions of supervision to include appropriate mental health
treatment or refer the matter to a local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the defendant. Actions alleging a violation of
mandatory supervision shall not be subject to dismissal under
Section 1385.

end insert

(d)  begin delete Notwithstanding any other provision of this section, end delete begin insert Except
as provided in subparagraph (B) of paragraph (2) of subdivision
(c), end insert the criminal action remains subject to dismissal pursuant to
Section 1385. If at any time prior to the maximum period of time
allowed for proceedings under this article, the regional center
director concludes that the behavior of the defendant related to the
defendant’s criminal offense has been eliminated during time spent
in court-ordered programs, the court may, upon recommendation
of the regional center director, dismiss the criminal charges. The
court shall transmit a copy of any order of dismissal to the regional
center director and to the executive director of the developmental
center.

(e) For the purpose of this section, “secure treatment facility”
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, a
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 a community board and care facility.

begin delete SEC. 6. end delete
begin insert SEC. 11. end insert   

Section 1370.5 of the Penal Code is amended to read:

1370.5.  

(a) A person committed to a state hospital or other
public or private mental health facility pursuant to the provisions
of Section 1370, 1370.01, 1370.02, begin delete 1370.03, end delete 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 a 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, 1370.02, begin delete 1370.03, end delete 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.

begin insert

begin insert SEC. 12. end insert   

end insert

begin insert Section 1371 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1371.  

The commitment of the defendant, as described in
Section begin delete 1370 or 1370.01, end delete begin insert 1370, 1370.1, or 1370.02, end insert exonerates
his or her bail, or entitles a person, authorized to receive the
property of the defendant, to a return of any money he or she may
have deposited instead of bail, or gives, to the person or persons
found by the court to have deposited any money instead of bail on
behalf of the defendant, a right to the return of that money.

begin insert

begin insert SEC. 13. end insert   

end insert

begin insert Section 1373 of the end insert begin insert Penal Code end insert begin insert is amended to read: end insert

1373.  

The expense of sending the defendant to the state hospital
or other facility, and of bringing him back, are chargeable to the
county in which the indictment was begin delete found or end delete begin insert found, end insert information
begin insert was end insert filed begin insert , or revocation proceeding was held end insert ; but the county may
recover them from the estate of the defendant, if he has any, or
from a relative, bound to provide for and maintain him.

begin delete SEC. 7. end delete
begin insert SEC. 14. end insert   

Section 1375.5 of the Penal Code is amended to read:

1375.5.  

(a) 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 imprisonment, if any, for which the defendant is sentenced in
the criminal case which was suspended pursuant to Section 1370
or 1370.1.

(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 begin delete or 1370.03 end delete shall be credited toward any period
of revocation or remaining begin delete mandatory supervision end delete term begin insert of
supervision end insert that was suspended.

(c) As 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.

begin delete SEC. 8. end delete
begin insert SEC. 15. end insert   

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.