Bill Text: CA SB1412 | 2013-2014 | Regular Session | Chaptered
Bill Title: Criminal proceedings: mentally incompetent offenders.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-09-28 - Chaptered by Secretary of State. Chapter 759, Statutes of 2014. [SB1412 Detail]
Download: California-2013-SB1412-Chaptered.html
BILL NUMBER: SB 1412 CHAPTERED
BILL TEXT
CHAPTER 759
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2014
APPROVED BY GOVERNOR SEPTEMBER 28, 2014
PASSED THE SENATE AUGUST 22, 2014
PASSED THE ASSEMBLY AUGUST 21, 2014
AMENDED IN ASSEMBLY AUGUST 19, 2014
AMENDED IN ASSEMBLY JUNE 23, 2014
AMENDED IN ASSEMBLY JUNE 9, 2014
AMENDED IN SENATE MAY 7, 2014
INTRODUCED BY Senator Nielsen
FEBRUARY 21, 2014
An act to amend Sections 1367, 1368, 1368.1, 1369, 1369.1, 1370,
1370.01, 1370.1, 1370.5, 1371, 1373, and 1375.5 of, to add Section
1370.02 to, and to repeal Section 1367.1 of, the Penal Code, relating
to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 1412, Nielsen. Criminal proceedings: mentally incompetent
offenders.
(1) Existing law prohibits a person from being tried or adjudged
to punishment while that person is mentally incompetent. Existing law
establishes a process by which a defendant's mental competency is
evaluated and by which the defendant receives treatment, including,
if applicable, antipsychotic medication, with the goal of returning
the defendant to competency. Existing law credits time spent by a
defendant in a state hospital or other facility as a result of
commitment during the process toward the term of any imprisonment for
which the defendant is sentenced.
This bill would, similarly, prohibit a person from having his or
her probation, mandatory supervision, postrelease community
supervision, or parole 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. If a defendant is
found mentally incompetent during postrelease community supervision
or parole revocation hearings, the bill would require the court to
dismiss the pending revocation matter and return the defendant to
supervision, in which case the bill would allow the court, using the
least restrictive option that will meet the mental health needs of
the defendant, to modify the terms and conditions of supervision to
include appropriate mental health treatment, 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, or, if there are no other reasonable alternatives to the
establishment of a conservatorship to meet the mental health needs of
the defendant, refer the matter to the public guardian of the county
of commitment to initiate conservatorship proceedings, as specified.
By increasing the duties of local officials, including the county
mental health director and county public guardian, the bill would
impose a state-mandated local program.
If a person 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 is found mentally incompetent, the bill would require the
court to order the person to undergo treatment to restore mental
competency. If his or her mental competency is not restored, the bill
would establish procedures for his or her supervision or referral,
as specified.
The bill would also make conforming changes.
If a conservatorship is established for a defendant or parolee
pursuant to the above-described provisions, the bill would prohibit
the county or the Department of Corrections and Rehabilitation from
compassionately releasing the defendant or parolee or otherwise
causing the termination of his or her supervision or parole based on
the establishment of that conservatorship.
(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.
This bill would repeal those provisions.
(3) This bill would incorporate additional changes to Section 1370
of the Penal Code, proposed by AB 2186 and AB 2625, that would
become operative only if this bill and either or both of those bills
are chaptered and become effective January 1, 2015, and this bill is
chaptered last.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
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 probation, mandatory supervision, postrelease
community supervision, or parole 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 or alleged to have violated the terms of probation for a
felony or mandatory supervision and is incompetent as a result of a
mental disorder. Section 1370.01 shall apply to a person who is
charged with a misdemeanor or misdemeanors only, or a violation of
formal or informal probation for a misdemeanor, 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
alleged to have violated the terms of his or her postrelease
community supervision or parole.
SEC. 2. Section 1367.1 of the Penal Code is repealed.
SEC. 3. Section 1368 of the Penal Code is amended to read:
1368. (a) If, during the pendency of an action and prior to
judgment, or during revocation proceedings for a violation of
probation, mandatory supervision, postrelease community supervision,
or parole, 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.
SEC. 4. Section 1368.1 of the Penal Code is amended to read:
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.
(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.
(d) In ruling upon any demurrer or motion described in subdivision
(a), (b), or (c), the court may hear any matter which is capable of
fair determination without the personal participation of the
defendant.
(e) A demurrer or motion described in subdivision (a), (b), or (c)
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.
SEC. 5. Section 1369 of the Penal Code is amended to read:
1369. Except as stated in subdivision (g), a 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.
(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.
SEC. 6. 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, 1370.01, and 1370.02
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.
(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.
SEC. 7. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
or hearing on the alleged violation shall proceed, and judgment may
be pronounced.
(B) If the defendant is found mentally incompetent, the trial, the
hearing on the alleged violation, or the judgment shall be suspended
until the person becomes mentally competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, as directed
by the State Department of State Hospitals, or to any other available
public or private treatment facility, including a local county jail
treatment facility or the community-based residential treatment
system established pursuant to Article 1 (commencing with Section
5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
Institutions Code if the facility has a secured perimeter or a locked
and controlled treatment facility, approved by the community program
director that will promote the defendant's speedy restoration to
mental competence, or placed on outpatient status as specified in
Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital, as directed by the
State Department of State Hospitals, or other secure treatment
facility for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered, as
directed by the State Department of State Hospitals, unless the court
makes specific findings on the record that an alternative placement
would provide more appropriate treatment for the defendant and would
not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court shall serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be
placed, and the district attorney for the county in which the violent
felony charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
committed to the State Department of State Hospitals or other
treatment facility or placed on outpatient status, the court shall
proceed as follows:
(A) The court shall order the community program director or a
designee to evaluate the defendant and to submit to the court within
15 judicial days of the order a written recommendation as to whether
the defendant should be required to undergo outpatient treatment, or
be committed to the State Department of State Hospitals or to any
other treatment facility. A person shall not be admitted to a state
hospital or other treatment facility or placed on outpatient status
under this section without having been evaluated by the community
program director or a designee. The community program director or
designee shall evaluate the appropriate placement for the defendant
between the State Department of State Hospitals, a local county jail
treatment facility, or the community-based residential treatment
system based upon guidelines provided by the State Department of
State Hospitals. If a local county jail treatment facility is
selected, the State Department of State Hospitals shall provide
treatment at the county jail treatment facility and reimburse the
county jail treatment facility for the reasonable costs of the bed
during the treatment. If the community-based residential treatment
system is selected, the State Department of State Hospitals shall
provide reimbursement to the community-based residential treatment
system for the cost of treatment as negotiated with the State
Department of State Hospitals. The six-month limitation in Section
1369.1 shall not apply to individuals deemed incompetent to stand
trial who are being treated to restore competency within a county
jail treatment facility pursuant to this section.
(B) The court shall hear and determine whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication, 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 be given timely access to the defendant's records.
(II) To be present at the hearing, unless the defendant waives
that right.
(III) To present evidence at the hearing.
(IV) To question persons presenting evidence supporting
involuntary medication.
(V) To make reasonable requests for attendance of witnesses on the
defendant's behalf.
(VI) To a hearing conducted in an impartial and informal manner.
(ii) If the administrative law judge determines that the defendant
either meets the criteria specified in subclause (I) of clause (i)
of subparagraph (B), or meets the criteria specified in subclause
(II) of clause (i) of subparagraph (B), then antipsychotic medication
may continue to be administered to the defendant for the 21-day
certification period. Concurrently with the treating psychiatrist's
certification, the treating psychiatrist shall file a copy of the
certification and a petition with the court for issuance of an order
to administer antipsychotic medication beyond the 21-day
certification period. For purposes of this subparagraph, the treating
psychiatrist shall not be required to
pay or deposit any fee for the filing of the petition
or other document or paper related to the petition.
(iii) If the administrative law judge disagrees with the
certification, medication may not be administered involuntarily until
the court determines that antipsychotic medication should be
administered pursuant to this section.
(iv) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
determine whether antipsychotic medication should be ordered beyond
the certification period.
(v) If, as a result of the hearing, the court determines that
antipsychotic medication should be administered beyond the
certification period, the court shall issue an order authorizing the
administration of that medication.
(vi) The court shall render its decision on the petition and issue
its order no later than three calendar days after the hearing and,
in any event, no later than the expiration of the 21-day
certification period.
(3) When the court orders that the defendant be committed to the
State Department of State Hospitals or other public or private
treatment facility, the court shall provide copies of the following
documents prior to the admission of the defendant to the State
Department of State Hospitals or other treatment facility where the
defendant is to be committed:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) 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.
(I) Any medical records.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall commit the
patient to the State Department of State Hospitals.
(6) (A) If the defendant is committed or transferred to the State
Department of State Hospitals pursuant to this section, the court
may, upon receiving the written recommendation of the medical
director of the state hospital and the community program director
that the defendant be transferred to a public or private treatment
facility approved by the community program director, order the
defendant transferred to that facility. If the defendant is committed
or transferred to a public or private treatment facility approved by
the community program director, the court may, upon receiving the
written recommendation of the community program director, transfer
the defendant to the State Department of State Hospitals or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the criminal
charges before the defendant recovers competence, the person shall
be subject to the applicable provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code). If either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in the court for a hearing, which shall be held
if the court determines that sufficient grounds exist. At the
hearing, the prosecuting attorney or the defendant may present
evidence bearing on the order of transfer. The court shall use the
same standards as are used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to the State
Department of State Hospitals or secure treatment facility pursuant
to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
subsequently transferred to any other facility, copies of the
documents specified in paragraph (3) shall be taken with the
defendant to each subsequent facility to which the defendant is
transferred. The transferring facility shall also notify the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the new facility that the defendant is a
person subject to clause (ii) or (iii) of subparagraph (B) of
paragraph (1).
(7) 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. If the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, if the defendant is confined in
a treatment facility, the medical director of the hospital or person
in charge of the facility shall report in writing to the court and
the community program director or a designee regarding the defendant'
s progress toward recovery of mental competence. If the defendant is
on outpatient status, after the initial 90-day report, the outpatient
treatment staff shall report to the community program director on
the defendant's progress toward recovery, and the community program
director shall report to the court on this matter at six-month
intervals. A copy of these reports shall be provided to the
prosecutor and defense counsel by the court. 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) If 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, or the maximum
term of imprisonment provided by law for a violation of probation or
mandatory supervision, 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 the criminal charges or
revocation proceedings are pending.
(4) If the defendant is confined in a treatment facility, a copy
of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) With the exception of proceedings alleging a violation of
mandatory supervision, the criminal action remains subject to
dismissal pursuant to Section 1385. If the criminal action is
dismissed, the court shall transmit a copy of the order of dismissal
to the community program director or a designee. In a proceeding
alleging a violation of mandatory supervision, if the person is not
placed under a conservatorship as described in paragraph (2) of
subdivision (c), or if a conservatorship is terminated, the court
shall reinstate mandatory supervision and may modify the terms and
conditions of supervision to include appropriate mental health
treatment or refer the matter to a local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the defendant.
(e) If the criminal action against the defendant is dismissed, the
defendant shall be released from 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.
SEC. 7.1. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
or hearing on the alleged violation shall proceed, and judgment may
be pronounced.
(B) If the defendant is found mentally incompetent, the trial, the
hearing on the alleged violation, or the judgment shall be suspended
until the person becomes mentally competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, as directed
by the State Department of State Hospitals, or to any other available
public or private treatment facility, including a local county jail
treatment facility or the community-based residential treatment
system established pursuant to Article 1 (commencing with Section
5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
Institutions Code if the facility has a secured perimeter or a locked
and controlled treatment facility, approved by the community program
director that will promote the defendant's speedy restoration to
mental competence, or placed on outpatient status as specified in
Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital, as directed by the
State Department of State Hospitals, or other secure treatment
facility for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered, as
directed by the State Department of State Hospitals, unless the court
makes specific findings on the record that an alternative placement
would provide more appropriate treatment for the defendant and would
not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court shall serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be
placed, and the district attorney for the county in which the violent
felony charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
committed to the State Department of State Hospitals or other
treatment facility or placed on outpatient status, the court shall
proceed as follows:
(A) The court shall order the community program director or a
designee to evaluate the defendant and to submit to the court within
15 judicial days of the order a written recommendation as to whether
the defendant should be required to undergo outpatient treatment, or
be committed to the State Department of State Hospitals or to any
other treatment facility. A person shall not be admitted to a state
hospital or other treatment facility or placed on outpatient status
under this section without having been evaluated by the community
program director or a designee. The community program director or
designee shall evaluate the appropriate placement for the defendant
between the State Department of State Hospitals, a local county jail
treatment facility, or the community-based residential treatment
system based upon guidelines provided by the State Department of
State Hospitals. If a local county jail treatment facility is
selected, the State Department of State Hospitals shall provide
treatment at the county jail treatment facility and reimburse the
county jail treatment facility for the reasonable costs of the bed
during the treatment. If the community-based residential treatment
system is selected, the State Department of State Hospitals shall
provide reimbursement to the community-based residential treatment
system for the cost of treatment as negotiated with the State
Department of State Hospitals. The six-month limitation in Section
1369.1 shall not apply to individuals deemed incompetent to stand
trial who are being treated to restore competency within a county
jail treatment facility pursuant to this section.
(B) The court shall hear and determine whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication. The court shall consider opinions in the
reports prepared pursuant to subdivision (a) of Section 1369, as
applicable to the issue of whether the defendant lacks capacity to
make decisions regarding the administration of antipsychotic
medication, and shall proceed as follows:
(i) The court shall hear and determine whether any of the
following is true:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder requires
medical treatment with antipsychotic medication, and, if the
defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or
mental health of the patient will result. Probability of serious harm
to the physical or mental health of the defendant requires evidence
that the defendant is presently suffering adverse effects to his or
her physical or mental health, or the defendant has previously
suffered these effects as a result of a mental disorder and his or
her condition is substantially deteriorating. The fact that a
defendant has a diagnosis of a mental disorder does not alone
establish probability of serious harm to the physical or mental
health of the defendant.
(II) The defendant is a danger to others, in that the defendant
has inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another while in custody, or
the defendant had inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the defendant
presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on
others. Demonstrated danger may be based on an assessment of the
defendant's present mental condition, including a consideration of
past behavior of the defendant within six years prior to the time the
defendant last attempted to inflict, inflicted, or threatened to
inflict substantial physical harm on another, and other relevant
evidence.
(III) The people have charged the defendant with a serious crime
against the person or property, involuntary administration of
antipsychotic medication is substantially likely to render the
defendant competent to stand trial, the medication is unlikely to
have side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner, less
intrusive treatments are unlikely to have substantially the same
results, and antipsychotic medication is in the patient's best
medical interest in light of his or her medical condition.
(ii) If the court finds any of the conditions described in clause
(i) to be true, the court shall issue an order authorizing
involuntary administration of antipsychotic medication to the
defendant when and as prescribed by the defendant's treating
psychiatrist at any facility housing the defendant for purposes of
this chapter. The order shall be valid for no more than one year,
pursuant to subparagraph (A) of paragraph (7). The court shall not
order involuntary administration of
psychotropic medication under subclause (III) of
clause (i) unless the court has first found that the defendant does
not meet the criteria for involuntary administration of psychotropic
medication under subclause (I) of clause (i) and does not meet the
criteria under subclause (II) of clause (i).
(iii) In all cases, the treating hospital, facility, or program
may administer medically appropriate antipsychotic medication
prescribed by a psychiatrist in an emergency as described in
subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication, and if
the defendant, with advice of his or her counsel, consents, the
court order of commitment shall include confirmation that
antipsychotic medication may be given to the defendant as prescribed
by a treating psychiatrist pursuant to the defendant's consent. The
commitment order shall also indicate that, if the defendant withdraws
consent for antipsychotic medication, after the treating
psychiatrist complies with the provisions of subparagraph (C), the
defendant shall be returned to court for a hearing in accordance with
subparagraphs (C) and (D) regarding whether antipsychotic medication
shall be administered involuntarily.
(v) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication and if
the defendant, with advice from his or her counsel, does not consent,
the court order for commitment shall indicate that, after the
treating psychiatrist complies with the provisions of subparagraph
(C), the defendant shall be returned to court for a hearing in
accordance with subparagraphs (C) and (D) regarding whether
antipsychotic medication shall be administered involuntarily.
(vi) 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 be given timely access to the defendant's records.
(II) To be present at the hearing, unless the defendant waives
that right.
(III) To present evidence at the hearing.
(IV) To question persons presenting evidence supporting
involuntary medication.
(V) To make reasonable requests for attendance of witnesses on the
defendant's behalf.
(VI) To a hearing conducted in an impartial and informal manner.
(ii) If the administrative law judge determines that the defendant
either meets the criteria specified in subclause (I) of clause (i)
of subparagraph (B), or meets the criteria specified in subclause
(II) of clause (i) of subparagraph (B), then antipsychotic medication
may continue to be administered to the defendant for the 21-day
certification period. Concurrently with the treating psychiatrist's
certification, the treating psychiatrist shall file a copy of the
certification and a petition with the court for issuance of an order
to administer antipsychotic medication beyond the 21-day
certification period. For purposes of this subparagraph, the treating
psychiatrist shall not be required to pay or deposit any fee for the
filing of the petition or other document or paper related to the
petition.
(iii) If the administrative law judge disagrees with the
certification, medication may not be administered involuntarily until
the court determines that antipsychotic medication should be
administered pursuant to this section.
(iv) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
determine whether antipsychotic medication should be ordered beyond
the certification period.
(v) If, as a result of the hearing, the court determines that
antipsychotic medication should be administered beyond the
certification period, the court shall issue an order authorizing the
administration of that medication.
(vi) The court shall render its decision on the petition and issue
its order no later than three calendar days after the hearing and,
in any event, no later than the expiration of the 21-day
certification period.
(vii) If the administrative law judge upholds the certification
pursuant to clause (ii), the court may, for a period not to exceed 14
days, extend the certification and continue the hearing pursuant to
stipulation between the parties or upon a finding of good cause. In
determining good cause, the court may review the petition filed with
the court, the administrative law judge's order, and any additional
testimony needed by the court to determine if it is appropriate to
continue medication beyond the 21-day certification and for a period
of up to 14 days.
(viii) The district attorney, county counsel, or representative of
any facility where a defendant found incompetent to stand trial is
committed may petition the court for an order to administer
involuntary medication pursuant to the criteria set forth in
subclauses (II) and (III) of clause (i) of subparagraph (B). The
order is reviewable as provided in paragraph (7).
(3) When the court orders that the defendant be committed to the
State Department of State Hospitals or other public or private
treatment facility, the court shall provide copies of the following
documents prior to the admission of the defendant to the State
Department of State Hospitals or other treatment facility where the
defendant is to be committed:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) 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.
(I) Any medical records.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall commit the
patient to the State Department of State Hospitals.
(6) (A) If the defendant is committed or transferred to the State
Department of State Hospitals pursuant to this section, the court
may, upon receiving the written recommendation of the medical
director of the state hospital and the community program director
that the defendant be transferred to a public or private treatment
facility approved by the community program director, order the
defendant transferred to that facility. If the defendant is committed
or transferred to a public or private treatment facility approved by
the community program director, the court may, upon receiving the
written recommendation of the community program director, transfer
the defendant to the State Department of State Hospitals or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the criminal
charges before the defendant recovers competence, the person shall
be subject to the applicable provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code). If either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in the court for a hearing, which shall be held
if the court determines that sufficient grounds exist. At the
hearing, the prosecuting attorney or the defendant may present
evidence bearing on the order of transfer. The court shall use the
same standards as are used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to the State
Department of State Hospitals or secure treatment facility pursuant
to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
subsequently transferred to any other facility, copies of the
documents specified in paragraph (3) shall be taken with the
defendant to each subsequent facility to which the defendant is
transferred. The transferring facility shall also notify the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the new facility that the defendant is a
person subject to clause (ii) or (iii) of subparagraph (B) of
paragraph (1).
(7) (A) An order by the court authorizing involuntary medication
of the defendant shall be valid for no more than one year. The court
shall review the order 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) Within 60 days before the expiration of the one-year
involuntary medication order, the district attorney, county counsel,
or representative of any facility where a defendant found incompetent
to stand trial is committed may petition the committing court for a
renewal, subject to the same conditions and requirements as in
subparagraph (A). The petition shall include the basis for
involuntary medication set forth in clause (i) of subparagraph (B) of
paragraph (2). Notice of the petition shall be provided to the
defendant, the defendant's attorney, and the district attorney. The
court shall hear and determine whether the defendant continues to
meet the criteria set forth in clause (i) of subparagraph (B) of
paragraph (2). The hearing on any petition to renew an order for
involuntary medication shall be conducted prior to the expiration of
the current order.
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director for
the county or region of commitment, or a designee, concerning the
defendant's progress toward recovery of mental competence and whether
the administration of antipsychotic medication remains necessary. If
the defendant is on outpatient status, the outpatient treatment
staff shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, if the defendant is confined in
a treatment facility, the medical director of the hospital or person
in charge of the facility shall report in writing to the court and
the community program director or a designee regarding the defendant'
s progress toward recovery of mental competence and whether the
administration of antipsychotic medication remains necessary. If the
defendant is on outpatient status, after the initial 90-day report,
the outpatient treatment staff shall report to the community program
director on the defendant's progress toward recovery, and the
community program director shall report to the court on this matter
at six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court. 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) If the court has issued an order authorizing the treating
facility to involuntarily administer antipsychotic medication to the
defendant, the reports made pursuant to paragraph (1) concerning the
defendant's progress toward regaining competency shall also consider
the issue of involuntary medication. Each report shall include, but
is not limited to, all 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, or the maximum
term of imprisonment provided by law for a violation of probation or
mandatory supervision, 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 the criminal charges or
revocation proceedings are pending.
(4) If the defendant is confined in a treatment facility, a copy
of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) With the exception of proceedings alleging a violation of
mandatory supervision, the criminal action remains subject to
dismissal pursuant to Section 1385. If the criminal action is
dismissed, the court shall transmit a copy of the order of dismissal
to the community program director or a designee. In a proceeding
alleging a violation of mandatory supervision, if the person is not
placed under a conservatorship as described in paragraph (2) of
subdivision (c), or if a conservatorship is terminated, the court
shall reinstate mandatory supervision and may modify the terms and
conditions of supervision to include appropriate mental health
treatment or refer the matter to a local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the defendant.
(e) If the criminal action against the defendant is dismissed, the
defendant shall be released from 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.
SEC. 7.2. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
or hearing on the alleged violation shall proceed, and judgment may
be pronounced.
(B) If the defendant is found mentally incompetent, the trial, the
hearing on the alleged violation, or the judgment shall be suspended
until the person becomes mentally competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, as directed
by the State Department of State Hospitals, or to any other available
public or private treatment facility, including a local county jail
treatment facility or the community-based residential treatment
system established pursuant to Article 1 (commencing with Section
5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
Institutions Code if the facility has a secured perimeter or a locked
and controlled treatment facility, approved by the community program
director that will promote the defendant's speedy restoration to
mental competence, or placed on outpatient status as specified in
Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the
defendant is currently the subject of a pending Section 1368
proceeding arising out of a charge of a Section 290 offense. If
either determination is made, the prosecutor shall so notify the
court and defendant in writing. After this notification, and
opportunity for hearing, the court shall order that the defendant be
delivered by the sheriff to a state hospital, as directed by the
State Department of State Hospitals, or other secure treatment
facility for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered, as
directed by the State Department of State Hospitals, unless the court
makes specific findings on the record that an alternative placement
would provide more appropriate treatment for the defendant and would
not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court shall serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be
placed, and the district attorney for the county in which the violent
felony charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
committed to the State Department of State Hospitals or other
treatment facility or placed on outpatient status, the court shall
proceed as follows:
(A) The court shall order the community program director or a
designee to evaluate the defendant and to submit to the court within
15 judicial days of the order a written recommendation as to whether
the defendant should be required to undergo outpatient treatment, or
be committed to the State Department of State Hospitals or to any
other treatment facility. A person shall not be admitted to a state
hospital or other treatment facility or placed on outpatient status
under this section without having been evaluated by the community
program director or a designee. The community program director or
designee shall evaluate the appropriate placement for the defendant
between the State Department of State Hospitals, a local county jail
treatment facility, or the community-based residential treatment
system based upon guidelines provided by the State Department of
State Hospitals. If a local county jail treatment facility is
selected, the State Department of State Hospitals shall provide
treatment at the county jail treatment facility and reimburse the
county jail treatment facility for the reasonable costs of the bed
during the treatment. If the community-based residential treatment
system is selected, the State Department of State Hospitals shall
provide reimbursement to the community-based residential treatment
system for the cost of treatment as negotiated with the State
Department of State Hospitals. The six-month limitation in Section
1369.1 shall not apply to individuals deemed incompetent to stand
trial who are being treated to restore competency within a county
jail treatment facility pursuant to this section.
(B) The court shall hear and determine whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication, 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 be given timely access to the defendant's records.
(II) To be present at the hearing, unless the defendant waives
that right.
(III) To present evidence at the hearing.
(IV) To question persons presenting evidence supporting
involuntary medication.
(V) To make reasonable requests for attendance of witnesses on the
defendant's behalf.
(VI) To a hearing conducted in an impartial and informal manner.
(ii) If the administrative law judge determines that the defendant
either meets the criteria specified in subclause (I) of clause (i)
of subparagraph (B), or meets the criteria specified in subclause
(II) of clause (i) of subparagraph (B), then antipsychotic medication
may continue to be administered to the defendant for the 21-day
certification period. Concurrently with the treating psychiatrist's
certification, the treating psychiatrist shall file a copy of the
certification and a petition with the court for issuance of an order
to administer antipsychotic medication beyond the 21-day
certification period. For purposes of this subparagraph, the treating
psychiatrist shall not be required to pay or deposit any fee for the
filing of the petition or other document or paper related to the
petition.
(iii) If the administrative law judge disagrees with the
certification, medication may not be administered involuntarily until
the court determines that antipsychotic medication should be
administered pursuant to this section.
(iv) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
determine whether antipsychotic medication should be ordered beyond
the certification period.
(v) If, as a result of the hearing, the court determines that
antipsychotic medication should be administered beyond the
certification period, the court shall issue an order authorizing the
administration of that medication.
(vi) The court shall render its decision on the petition and issue
its order no later than three calendar days after the hearing and,
in any event, no later than the expiration of the 21-day
certification period.
(3) When the court orders that the defendant be committed to the
State Department of State Hospitals or other public or private
treatment facility, the court shall provide copies of the following
documents prior to the admission of the defendant to the State
Department of State Hospitals or other treatment facility where the
defendant is to be committed:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) 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.
(I) Any medical records.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall commit the
patient to the State Department of State Hospitals.
(6) (A) If the defendant is committed or transferred to the State
Department of State Hospitals pursuant to this section, the court
may, upon receiving the written recommendation of the medical
director of the state hospital and the community program director
that the defendant be transferred to a public or private treatment
facility approved by the community program director, order the
defendant transferred to that facility. If the defendant is committed
or transferred to a public or private treatment facility approved by
the community program director, the court may, upon receiving the
written recommendation of the community program director, transfer
the defendant to the State Department of State Hospitals or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the criminal
charges before the defendant recovers competence, the person shall
be subject to the applicable provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code). If either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in the court for a hearing, which shall be held
if the court determines that sufficient grounds exist. At the
hearing, the prosecuting attorney or the defendant may present
evidence bearing on the order of transfer. The court shall use the
same standards as are used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to the State
Department of State Hospitals or secure treatment facility pursuant
to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
subsequently transferred to any other facility, copies of the
documents specified in paragraph (3) shall be taken with the
defendant to each subsequent facility to which the defendant is
transferred. The transferring facility shall also notify the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the new facility that the defendant is a
person subject to clause (ii) or (iii) of subparagraph (B) of
paragraph (1).
(7) 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. If the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, if the defendant is confined in
a treatment facility, the medical director of the hospital or person
in charge of the facility shall report in writing to the court and
the community program director or a designee regarding the defendant'
s progress toward recovery of mental competence. If the defendant is
on outpatient status, after the initial 90-day report, the outpatient
treatment staff shall report to the community program director on
the defendant's progress toward recovery, and the community program
director shall report to the court on this matter at six-month
intervals. A copy of these reports shall be provided to the
prosecutor and defense counsel by the court.
(A) If the report indicates that there is no substantial
likelihood that the defendant will regain mental competence in the
foreseeable future, the committing court shall order the defendant to
be returned to the court for proceedings pursuant to paragraph (2)
of subdivision (c) no later than 10 days following receipt of the
report. The court shall transmit a copy of its order to the community
program director or a designee.
(B) If the report indicates that there is no substantial
likelihood that the defendant will regain mental competence in the
foreseeable future, the medical director of the state hospital or
other treatment facility to which the defendant is confined shall do
both of the following:
(i) Promptly notify and provide a copy of the report to the
defense counsel and the district attorney.
(ii) Provide a separate notification, in compliance with
applicable privacy laws, to the committing county's sheriff that
transportation will be needed for the patient.
(2) If the court has issued an order authorizing the treating
facility to involuntarily administer antipsychotic medication to the
defendant, the reports made 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, or the maximum
term of imprisonment provided by law for a violation of probation or
mandatory supervision, whichever is shorter, but no later than 90
days prior to the expiration of the defendant's term of commitment, a
defendant who has not recovered mental competence shall be returned
to the committing court. The court shall notify the community program
director or a designee of the return and of any resulting court
orders.
(2) Whenever 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 the criminal charges or
revocation proceedings are pending.
(4) If the defendant is confined in a treatment facility, a copy
of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) With the exception of proceedings alleging a violation of
mandatory supervision, the criminal action remains subject to
dismissal pursuant to Section 1385. If the criminal action is
dismissed, the court shall transmit a copy of the order of dismissal
to the community program director or a designee. In a proceeding
alleging a violation of mandatory supervision, if the person is not
placed under a conservatorship as described in paragraph (2) of
subdivision (c), or if a conservatorship is terminated, the court
shall reinstate mandatory supervision and may modify the terms and
conditions of supervision to include appropriate mental health
treatment or refer the matter to a local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the defendant.
(e) If the criminal action against the defendant is dismissed, the
defendant shall be released from 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.
SEC. 7.3. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
or hearing on the alleged violation shall proceed, and judgment may
be pronounced.
(B) If the defendant is found mentally incompetent, the trial, the
hearing on the alleged violation, or the judgment shall be suspended
until the person becomes mentally competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, as directed
by the State Department of State Hospitals, or to any other available
public or private treatment facility, including a local county jail
treatment facility or the community-based residential treatment
system established pursuant to Article 1 (commencing with Section
5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and
Institutions Code if the facility has a secured perimeter or a locked
and controlled treatment facility, approved by the community program
director that will promote the defendant's speedy restoration to
mental competence, or placed on outpatient status as specified in
Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall so
notify the court and defendant in writing. After this notification,
and opportunity for hearing, the court shall order that the defendant
be delivered by the sheriff to a state hospital, as directed by the
State Department of State Hospitals, or other secure treatment
facility for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered, as
directed by the State Department of State Hospitals, unless the court
makes specific findings on the record that an alternative placement
would provide more appropriate treatment for the defendant and would
not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others. If the court places a defendant charged with a
violent felony on outpatient status, as specified in Section 1600,
the court shall serve copies of the placement order on defense
counsel, the sheriff in the county where the defendant will be
placed, and the district attorney for the county in which the violent
felony charges are pending against the defendant.
(2) Prior to making the order directing that the defendant be
committed to the State Department of State Hospitals or other
treatment facility or placed on outpatient status, the court shall
proceed as follows:
(A) The court shall order the community program director or a
designee to evaluate the defendant and to submit to the court within
15 judicial days of the order a written recommendation as to whether
the defendant should be required to undergo outpatient treatment, or
be committed to the State Department of State Hospitals or to any
other treatment facility. A person shall not be admitted to a state
hospital or other treatment facility or placed on outpatient status
under this section without having been evaluated by the community
program director or a designee. The community program director or
designee shall evaluate the appropriate placement for the defendant
between the State Department of State Hospitals, a local county jail
treatment facility, or the community-based residential treatment
system based upon guidelines provided by the State Department of
State Hospitals. If a local county jail treatment facility is
selected, the State Department of State Hospitals shall provide
treatment at the county jail treatment facility and reimburse the
county jail treatment facility for the reasonable costs of the bed
during the treatment. If the community-based residential treatment
system is selected, the State Department of State Hospitals shall
provide reimbursement to the community-based residential treatment
system for the cost of treatment as negotiated with the State
Department of State Hospitals. The six-month limitation in Section
1369.1 shall not apply to individuals deemed incompetent to stand
trial who are being treated to restore competency within a county
jail treatment facility pursuant to this section.
(B) The court shall hear and determine whether the defendant lacks
capacity to make decisions regarding the administration of
antipsychotic medication. The court shall consider opinions in the
reports prepared pursuant to subdivision (a) of Section 1369, as
applicable to the issue of whether the defendant lacks capacity to
make decisions regarding the administration of antipsychotic
medication, and shall proceed as follows:
(i) The court shall hear and determine whether any of the
following is true:
(I) The defendant lacks capacity to make decisions regarding
antipsychotic medication, the defendant's mental disorder requires
medical treatment with antipsychotic medication, and, if the
defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or
mental health of the patient will result. Probability of serious harm
to the physical or mental health of the defendant requires evidence
that the defendant is presently suffering adverse effects to his or
her physical or mental health, or the defendant has previously
suffered these effects as a result of a mental disorder and his or
her condition is substantially deteriorating. The fact that a
defendant has a diagnosis of a mental disorder does not alone
establish probability of serious harm to the physical or mental
health of the defendant.
(II) The defendant is a danger to others, in that the defendant
has inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm on another while in custody, or
the defendant had inflicted, attempted to inflict, or made a serious
threat of inflicting substantial physical harm on another that
resulted in his or her being taken into custody, and the defendant
presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on
others. Demonstrated danger may be based on an assessment of the
defendant's present mental condition, including a consideration of
past behavior of the defendant within six years prior to the time the
defendant last attempted to inflict, inflicted, or threatened to
inflict substantial physical harm on another, and other relevant
evidence.
(III) The people have charged the defendant with a serious crime
against the person or property, involuntary administration of
antipsychotic medication is substantially likely to render the
defendant competent to stand trial, the medication is unlikely to
have side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner, less
intrusive treatments are unlikely to have substantially the same
results, and antipsychotic medication is in the patient's best
medical interest in light of his or her medical condition.
(ii) If the court finds any of the conditions described in clause
(i) to be true, the court shall issue an order authorizing
involuntary administration of antipsychotic medication to the
defendant when and as prescribed by the defendant's treating
psychiatrist at any facility housing the defendant for purposes of
this chapter. The order shall be valid for no more than one year,
pursuant to subparagraph (A) of paragraph (7). The court shall not
order involuntary administration of psychotropic medication under
subclause (III) of clause (i) unless the court has first found that
the defendant does not meet the criteria for involuntary
administration of psychotropic medication under subclause (I) of
clause (i) and does not meet the criteria under subclause (II) of
clause (i).
(iii) In all cases, the treating hospital, facility, or program
may administer medically appropriate antipsychotic medication
prescribed by a psychiatrist in an emergency as described in
subdivision (m) of Section 5008 of the Welfare and Institutions Code.
(iv) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication, and if
the defendant, with advice of his or her counsel, consents, the
court order of commitment shall include confirmation that
antipsychotic medication may be given to the defendant as prescribed
by a treating psychiatrist pursuant to the defendant's consent. The
commitment order shall also indicate that, if the defendant withdraws
consent for antipsychotic medication, after the treating
psychiatrist complies with the provisions of subparagraph (C), the
defendant shall be returned to court for a hearing in accordance with
subparagraphs (C) and (D) regarding whether antipsychotic medication
shall be administered involuntarily.
(v) If the court has determined that the defendant has the
capacity to make decisions regarding antipsychotic medication and if
the defendant, with advice from his or her counsel, does not consent,
the court order for commitment shall indicate that, after the
treating psychiatrist complies with the provisions of subparagraph
(C), the defendant shall be returned to court for a hearing in
accordance with subparagraphs (C) and (D) regarding whether
antipsychotic medication shall be administered involuntarily.
(vi) 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 be given timely access to the defendant's records.
(II) To be present at the hearing, unless the defendant waives
that right.
(III) To present evidence at the hearing.
(IV) To question persons presenting evidence supporting
involuntary medication.
(V) To make reasonable requests for attendance of witnesses on the
defendant's behalf.
(VI) To a hearing conducted in an impartial and informal manner.
(ii) If the administrative law judge determines that the defendant
either meets the criteria specified in subclause (I) of clause (i)
of subparagraph (B), or meets the criteria specified in subclause
(II) of clause (i) of subparagraph (B), then antipsychotic medication
may continue to be administered to the defendant for the 21-day
certification period. Concurrently with the treating psychiatrist's
certification, the treating psychiatrist shall file a copy of the
certification and a petition with the court for issuance of an order
to administer antipsychotic medication beyond the 21-day
certification period. For purposes of this subparagraph, the treating
psychiatrist shall not be required to pay or deposit any fee for the
filing of the petition or other document or paper related to the
petition.
(iii) If the administrative law judge disagrees with the
certification, medication may not be administered involuntarily until
the court determines that antipsychotic medication should be
administered pursuant to this section.
(iv) The court shall provide notice to the prosecuting attorney
and to the attorney representing the defendant, and shall hold a
hearing, no later than 18 days from the date of the certification, to
determine whether antipsychotic medication should be ordered beyond
the certification period.
(v) If, as a result of the hearing, the court determines that
antipsychotic medication should be administered beyond the
certification period, the court shall issue an order authorizing the
administration of that medication.
(vi) The court shall render its decision on the petition and issue
its order no later than three calendar days after the hearing and,
in any event, no later than the expiration of the 21-day
certification period.
(vii) If the administrative law judge upholds the certification
pursuant to clause (ii), the court may, for a period not to exceed 14
days, extend the certification and continue the hearing pursuant to
stipulation between the parties or upon a finding of good cause. In
determining good cause, the court may review the petition filed with
the court, the administrative law judge's order, and any additional
testimony needed by the court to determine if it is appropriate to
continue medication beyond the 21-day certification and for a period
of up to 14 days.
(viii) The district attorney, county counsel, or representative of
any facility where a defendant found incompetent to stand trial is
committed may petition the court for an order to administer
involuntary medication pursuant to the criteria set forth in
subclauses (II) and (III) of clause (i) of subparagraph (B). The
order is reviewable as provided in paragraph (7).
(3) When the court orders that the defendant be committed to the
State Department of State Hospitals or other public or private
treatment facility, the court shall provide copies of the following
documents prior to the admission of the defendant to the State
Department of State Hospitals or other treatment facility where the
defendant is to be committed:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) 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.
(I) Any medical records.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall commit the
patient to the State Department of State Hospitals.
(6) (A) If the defendant is committed or transferred to the State
Department of State Hospitals pursuant to this section, the court
may, upon receiving the written recommendation of the medical
director of the state hospital and the community program director
that the defendant be transferred to a public or private treatment
facility approved by the community program director, order the
defendant transferred to that facility. If the defendant is committed
or transferred to a public or private treatment facility approved by
the community program director, the court may, upon receiving the
written recommendation of the community program director, transfer
the defendant to the State Department of State Hospitals or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the criminal
charges before the defendant recovers competence, the person shall
be subject to the applicable provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code). If either the defendant or the
prosecutor chooses to contest either kind of order of transfer, a
petition may be filed in the court for a hearing, which shall be held
if the court determines that sufficient grounds exist. At the
hearing, the prosecuting attorney or the defendant may present
evidence bearing on the order of transfer.
The court shall use the same standards as are used
in conducting probation revocation hearings pursuant to Section
1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to the State
Department of State Hospitals or secure treatment facility pursuant
to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is
subsequently transferred to any other facility, copies of the
documents specified in paragraph (3) shall be taken with the
defendant to each subsequent facility to which the defendant is
transferred. The transferring facility shall also notify the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the new facility that the defendant is a
person subject to clause (ii) or (iii) of subparagraph (B) of
paragraph (1).
(7) (A) An order by the court authorizing involuntary medication
of the defendant shall be valid for no more than one year. The court
shall review the order at the time of the review of the initial
report and the six-month progress reports pursuant to paragraph (1)
of subdivision (b) to determine if the grounds for the authorization
remain. In the review, the court shall consider the reports of the
treating psychiatrist or psychiatrists and the defendant's patients'
rights advocate or attorney. The court may require testimony from the
treating psychiatrist or psychiatrists and the patients' rights
advocate or attorney, if necessary. The court may continue the order
authorizing involuntary medication for up to another six months, or
vacate the order, or make any other appropriate order.
(B) Within 60 days before the expiration of the one-year
involuntary medication order, the district attorney, county counsel,
or representative of any facility where a defendant found incompetent
to stand trial is committed may petition the committing court for a
renewal, subject to the same conditions and requirements as in
subparagraph (A). The petition shall include the basis for
involuntary medication set forth in clause (i) of subparagraph (B) of
paragraph (2). Notice of the petition shall be provided to the
defendant, the defendant's attorney, and the district attorney. The
court shall hear and determine whether the defendant continues to
meet the criteria set forth in clause (i) of subparagraph (B) of
paragraph (2). The hearing on any petition to renew an order for
involuntary medication shall be conducted prior to the expiration of
the current order.
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director for
the county or region of commitment, or a designee, concerning the
defendant's progress toward recovery of mental competence and whether
the administration of antipsychotic medication remains necessary. If
the defendant is on outpatient status, the outpatient treatment
staff shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, if the defendant is confined in
a treatment facility, the medical director of the hospital or person
in charge of the facility shall report in writing to the court and
the community program director or a designee regarding the defendant'
s progress toward recovery of mental competence and whether the
administration of antipsychotic medication remains necessary. If the
defendant is on outpatient status, after the initial 90-day report,
the outpatient treatment staff shall report to the community program
director on the defendant's progress toward recovery, and the
community program director shall report to the court on this matter
at six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court.
(A) If the report indicates that there is no substantial
likelihood that the defendant will regain mental competence in the
foreseeable future, the committing court shall order the defendant to
be returned to the court for proceedings pursuant to paragraph (2)
of subdivision (c) no later than 10 days following receipt of the
report. The court shall transmit a copy of its order to the community
program director or a designee.
(B) If the report indicates that there is no substantial
likelihood that the defendant will regain mental competence in the
foreseeable future, the medical director of the state hospital or
other treatment facility to which the defendant is confined shall do
both of the following:
(i) Promptly notify and provide a copy of the report to the
defense counsel and the district attorney.
(ii) Provide a separate notification, in compliance with
applicable privacy laws, to the committing county's sheriff that
transportation will be needed for the patient.
(2) If the court has issued an order authorizing the treating
facility to involuntarily administer antipsychotic medication to the
defendant, the reports made pursuant to paragraph (1) concerning the
defendant's progress toward regaining competency shall also consider
the issue of involuntary medication. Each report shall include, but
is not limited to, all 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, or the maximum
term of imprisonment provided by law for a violation of probation or
mandatory supervision, whichever is shorter, but no later than 90
days prior to the expiration of the defendant's term of commitment, a
defendant who has not recovered mental competence shall be returned
to the committing court. The court shall notify the community program
director or a designee of the return and of any resulting court
orders.
(2) Whenever 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 the criminal charges or
revocation proceedings are pending.
(4) If the defendant is confined in a treatment facility, a copy
of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) With the exception of proceedings alleging a violation of
mandatory supervision, the criminal action remains subject to
dismissal pursuant to Section 1385. If the criminal action is
dismissed, the court shall transmit a copy of the order of dismissal
to the community program director or a designee. In a proceeding
alleging a violation of mandatory supervision, if the person is not
placed under a conservatorship as described in paragraph (2) of
subdivision (c), or if a conservatorship is terminated, the court
shall reinstate mandatory supervision and may modify the terms and
conditions of supervision to include appropriate mental health
treatment or refer the matter to a local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the defendant.
(e) If the criminal action against the defendant is dismissed, the
defendant shall be released from 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.
SEC. 8. Section 1370.01 of the Penal Code is amended to read:
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 trial, judgment, or hearing on the
alleged violation 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.
SEC. 9. Section 1370.02 is added to the Penal Code, to read:
1370.02. (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
shall dismiss the pending revocation matter and return the defendant
to supervision. If the revocation matter is dismissed pursuant to
this subdivision, the court may, using the least restrictive option
to meet the mental health needs of the defendant, also do any of the
following:
(1) Modify the terms and conditions of supervision to include
appropriate mental health treatment.
(2) 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.
(3) Refer the matter to the public guardian of the county of
commitment to initiate conservatorship proceedings pursuant to
Sections 5352 and 5352.5 of the Welfare and Institutions Code. The
public guardian shall investigate all available alternatives to
conservatorship pursuant to Section 5354 of the Welfare and
Institutions Code. The court shall order the matter to the public
guardian pursuant to this paragraph only if there are no other
reasonable alternatives to the establishment of a conservatorship to
meet the mental health needs of the defendant.
(c) (1) 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 shall order
the parolee to undergo treatment pursuant to Section 1370 for
restoring the person to competency, except that if the parolee is not
restored to competency within the maximum period of confinement and
the court dismisses the revocation, the court shall return the
parolee to parole supervision.
(2) If the parolee is returned to parole supervision, the court
may, using the least restrictive option to meet the mental health
needs of the parolee, do any of the following:
(A) Modify the terms and conditions of parole to include
appropriate mental health treatment.
(B) Refer the matter to any local mental health court, reentry
court, or other collaborative justice court available for improving
the mental health of the parolee.
(C) Refer the matter to the public guardian of the county of
commitment to initiate conservatorship proceedings pursuant to
Sections 5352 and 5352.5 of the Welfare and Institutions Code. The
public guardian shall investigate all available alternatives to
conservatorship pursuant to Section 5354 of the Welfare and
Institutions Code. The court shall order the matter to the public
guardian pursuant to this subparagraph only if there are no other
reasonable alternatives to the establishment of a conservatorship to
meet the mental health needs of the parolee.
(d) If a conservatorship is established for a defendant or parolee
pursuant to subdivision (b) or (c), the county or the Department of
Corrections and Rehabilitation shall not compassionately release the
defendant or parolee or otherwise cause the termination of his or her
supervision or parole based on the establishment of that
conservatorship.
SEC. 10. Section 1370.1 of the Penal Code is amended to read:
1370.1. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
or hearing on the alleged violation shall proceed, and judgment may
be pronounced.
(B) If the defendant is found mentally incompetent 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 action or revocation
proceedings 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, or the maximum
term of imprisonment provided by law for a violation of probation or
mandatory supervision, 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) (A) Except as provided in subparagraph (B), in 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.
(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
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 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.
(d) Except as provided in subparagraph (B) of paragraph (2) of
subdivision (c), 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.
SEC. 11. 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, 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, or 1370.1 shall promptly notify the chief of police
of the city in which the hospital or facility is located, or the
sheriff of the county if the hospital or facility is located in an
unincorporated area, of the escape of the person, and shall request
the assistance of the chief of police or sheriff in apprehending the
person, and shall within 48 hours of the escape of the person orally
notify the court that made the commitment, the prosecutor in the
case, and the Department of Justice of the escape.
SEC. 12. Section 1371 of the Penal Code is amended to read:
1371. The commitment of the defendant, as described in Section
1370, 1370.1, 1370.01, or 1370.02, 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.
SEC. 13. Section 1373 of the Penal Code is amended to read:
1373. The expense of sending the defendant to the state hospital
or other facility, and of bringing him or her back, are chargeable to
the county in which the indictment was found, information was filed,
or revocation proceeding was held; but the county may recover the
expense from the estate of the defendant, if he or she has any, or
from a relative, bound to provide for and maintain him or her.
SEC. 14. 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, 1370.1,
or 1370.01.
(b) 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.
SEC. 15. (a) Section 7.1 of this bill incorporates amendments to
Section 1370 of the Penal Code proposed by both this bill and
Assembly Bill 2186. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2015, (2)
each bill amends Section 1370 of the Penal Code, (3) Assembly Bill
2625 is not enacted or as enacted does not amend that section, and
(4) this bill is enacted after Assembly Bill 2186, in which case
Sections 7, 7.2, and 7.3 of this bill shall not become operative.
(b) Section 7.2 of this bill incorporates amendments to Section
1370 of the Penal Code proposed by both this bill and Assembly Bill
2625. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2015, (2) each bill
amends Section 1370 of the Penal Code, (3) Assembly Bill 2186 is not
enacted or as enacted does not amend that section, and (4) this bill
is enacted after
Assembly Bill 2625 in which case Sections 7, 7.1, and 7.3 of this
bill shall not become operative.
(c) Section 7.3 of this bill incorporates amendments to Section
1370 of the Penal Code proposed by this bill, Assembly Bill 2186, and
Assembly Bill 2625. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2015,
(2) all three bills amend Section 1370 of the Penal Code, and (3)
this bill is enacted after Assembly Bill 2186 and Assembly Bill 2625,
in which case Sections 7, 7.1, and 7.2 of this bill shall not become
operative.
SEC. 16. 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.
