BILL NUMBER: SB 453 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Pan
FEBRUARY 25, 2015
An act to amend Section 1370 of the Penal Code, relating to
prisons.
LEGISLATIVE COUNSEL'S DIGEST
SB 453, as introduced, Pan. Prisons: involuntary medication.
Existing law provides that if a defendant in a criminal proceeding
is found mentally incompetent, the trial or judgment shall be
suspended until the person becomes mentally competent. Existing law
provides that the court shall order that the mentally incompetent
defendant be delivered by the sheriff to a state hospital for the
care and treatment of the mentally disordered, as directed by the
State Department of State Hospitals, or to any other available public
or private treatment facility approved by the community program
director that will promote the defendant's speedy restoration to
mental competence, or placed on outpatient status as specified.
Existing law further specifies commitment proceedings to include
circumstances for the voluntary and involuntary administration of
antipsychotic medication.
Under existing law, if consent for antipsychotic medication is
withdrawn or if the treating psychiatrist later determines that
antipsychotic medication is medically necessary and appropriate, the
treating psychiatrist is required to make efforts to obtain consent
for that medication. Existing law provides that if the treating
psychiatrist certifies that antipsychotic medication has become
medically necessary and appropriate for the defendant, antipsychotic
medication may be administered to the defendant for a maximum of 21
days, provided, however, that, within 72 hours of the certification,
the defendant is provided a medication review hearing before an
administrative law judge to be conducted at the facility where the
defendant is receiving treatment.
This bill would instead authorize a psychiatrist designated by the
facility medical director to make the determination and
certification as to whether antipsychotic medication is medically
necessary and appropriate and to administer that medication to the
defendant for up to 21 days.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
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 a 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 A 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 a
psychiatrist designated by the facility's medical director
determines that antipsychotic medication has become medically
necessary and appropriate, the treating
psychiatrist designated by the facility's medical
director 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 designated by the facility's
medical director 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
designated by the facility's medical director
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
designated by the facility's medical director that involuntary
antipsychotic medication has become medically necessary and
appropriate.
(D) (i) If the treating psychiatrist
designated by the facility's medical director 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 designated by the facility's medical director
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 a 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 Arrest reports
prepared by the police department or other law enforcement agency.
(F) Any court-ordered Court-ordered
psychiatric examination or evaluation reports.
(G) The community program director's placement recommendation
report.
(H) Records of any a finding of
mental incompetence pursuant to this chapter arising out of a
complaint charging a felony offense specified in Section 290 or
any a pending Section 1368 proceeding
arising out of a charge of a Section 290 offense.
(I) Any medical 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
designated by the facility's medical director 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 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 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 a 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 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.