Bill Full Text
Home
-
Bills
-
Bill
-
Authors
-
Dates
-
Locations
-
Analyses
-
Organizations
<?xml version="1.0" ?>
<ns0:MeasureDoc xmlns:html="http://www.w3.org/1999/xhtml" xmlns:ns0="http://lc.ca.gov/legalservices/schemas/caml.1#" xmlns:ns3="http://www.w3.org/1999/xlink" xmlns:xsi="http://www.w3.org/2001/XMLSchema-instance" version="1.0" xsi:schemaLocation="http://lc.ca.gov/legalservices/schemas/caml.1# xca.1.xsd">
<ns0:Description>
<ns0:Id>20250SB__140199INT</ns0:Id>
<ns0:VersionNum>99</ns0:VersionNum>
<ns0:History>
<ns0:Action>
<ns0:ActionText>INTRODUCED</ns0:ActionText>
<ns0:ActionDate>2026-02-20</ns0:ActionDate>
</ns0:Action>
</ns0:History>
<ns0:LegislativeInfo>
<ns0:SessionYear>2025</ns0:SessionYear>
<ns0:SessionNum>0</ns0:SessionNum>
<ns0:MeasureType>SB</ns0:MeasureType>
<ns0:MeasureNum>1401</ns0:MeasureNum>
<ns0:MeasureState>INT</ns0:MeasureState>
</ns0:LegislativeInfo>
<ns0:AuthorText authorType="LEAD_AUTHOR">Introduced by Senator Stern</ns0:AuthorText>
<ns0:Authors>
<ns0:Legislator>
<ns0:Contribution>LEAD_AUTHOR</ns0:Contribution>
<ns0:House>SENATE</ns0:House>
<ns0:Name>Stern</ns0:Name>
</ns0:Legislator>
</ns0:Authors>
<ns0:Title> An act to amend Sections 1370 and 1370.01 of the Penal Code, relating to criminal procedure.</ns0:Title>
<ns0:RelatingClause>criminal procedure</ns0:RelatingClause>
<ns0:GeneralSubject>
<ns0:Subject>Criminal procedure: competence to stand trial.</ns0:Subject>
</ns0:GeneralSubject>
<ns0:DigestText>
<html:p>Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law requires the court to, for a person found mentally incompetent and not charged with certain felony offenses, among other things, determine whether restoring the person to mental competence is in the interests of justice. Existing law requires the court to, if restoring the person to mental competence is not in the interests of justice, conduct a hearing, as specified, and determine the person’s eligibility for diversion. Under existing law, if the court determines that the person is ineligible or unsuitable for diversion, the court is authorized to hold a hearing to determine the person’s other options, including referral to assisted outpatient treatment, county conservatorship, and the CARE program. Existing law requires a person’s charges to be dismissed if
the person is accepted into assisted outpatient treatment or the CARE program or upon a filing of either a temporary or permanent conservatorship petition. </html:p>
<html:p>This bill would authorize a county behavioral health agency and jail medical provider to share confidential medical records and other relevant information with the court for the purpose of determining likelihood of eligibility for behavioral health services and programs pursuant to the above provisions. The bill would exempt from the requirement to dismiss charges instances where the person’s case has been referred back to the court within certain time periods.</html:p>
<html:p>Existing law, in the case of a misdemeanor charge in which the defendant is found incompetent, requires the court to hold a hearing to determine whether the defendant is eligible for both diversion and the CARE program. Under existing law, if the defendant is not eligible or suitable for diversion, the court is
required to hold another hearing to decide if the defendant should be referred for, among other things, county conservatorship. Existing law only allows a referral for county conservatorship if, based on the opinion of a qualified mental health expert, the defendant appears to be gravely disabled, as defined.</html:p>
<html:p>This bill would also allow a referral for county conservatorship if, in the opinion of the court, the defendant appears to be gravely disabled.</html:p>
</ns0:DigestText>
<ns0:DigestKey>
<ns0:VoteRequired>MAJORITY</ns0:VoteRequired>
<ns0:Appropriation>NO</ns0:Appropriation>
<ns0:FiscalCommittee>YES</ns0:FiscalCommittee>
<ns0:LocalProgram>NO</ns0:LocalProgram>
</ns0:DigestKey>
<ns0:MeasureIndicators>
<ns0:ImmediateEffect>NO</ns0:ImmediateEffect>
<ns0:ImmediateEffectFlags>
<ns0:Urgency>NO</ns0:Urgency>
<ns0:TaxLevy>NO</ns0:TaxLevy>
<ns0:Election>NO</ns0:Election>
<ns0:UsualCurrentExpenses>NO</ns0:UsualCurrentExpenses>
<ns0:BudgetBill>NO</ns0:BudgetBill>
<ns0:Prop25TrailerBill>NO</ns0:Prop25TrailerBill>
</ns0:ImmediateEffectFlags>
</ns0:MeasureIndicators>
</ns0:Description>
<ns0:Bill id="bill">
<ns0:Preamble>The people of the State of California do enact as follows:</ns0:Preamble>
<ns0:BillSection id="id_76E177FE-AB78-45ED-9C32-143D3F7AB6E0">
<ns0:Num>SECTION 1.</ns0:Num>
<ns0:ActionLine action="IS_AMENDED" ns3:type="locator" ns3:href="urn:caml:codes:PEN:caml#xpointer(%2Fcaml%3ALawDoc%2Fcaml%3ACode%2Fcaml%3ALawHeading%5B%40type%3D'PART'%20and%20caml%3ANum%3D'2.'%5D%2Fcaml%3ALawHeading%5B%40type%3D'TITLE'%20and%20caml%3ANum%3D'10.'%5D%2Fcaml%3ALawHeading%5B%40type%3D'CHAPTER'%20and%20caml%3ANum%3D'6.'%5D%2Fcaml%3ALawSection%5Bcaml%3ANum%3D'1370.'%5D)" ns3:label="fractionType: LAW_SECTION">
Section 1370 of the
<ns0:DocName>Penal Code</ns0:DocName>
is amended to read:
</ns0:ActionLine>
<ns0:Fragment>
<ns0:LawSection id="id_2F51FA81-E23B-43B2-93AC-ACDA0E092050">
<ns0:Num>1370.</ns0:Num>
<ns0:LawSectionVersion id="id_D40CACAB-3D06-4F48-81A3-3894711493EC">
<ns0:Content>
<html:p>
(a)
<html:span class="EnSpace"/>
(1)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If the defendant is found mentally incompetent and is not charged with an offense listed in subdivision (d) of Section 1001.36, the trial, the hearing on the alleged violation, or the judgment shall be suspended, and the court shall do all of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
(I)
<html:span class="EnSpace"/>
Determine whether restoring the person to mental competence is in the interests of justice.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
In
exercising its discretion pursuant to this clause, the court shall consider the relevant circumstances of the charged offense, including the harm done to the victim, the defendant’s mental health condition, including, without limitation, any intellectual or developmental disability, the history of treatment, the criminal history of the defendant, whether the defendant is likely to face incarceration if convicted, whether the defendant has previously been found incompetent to stand trial, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations. The court shall provide the defense and prosecution an opportunity to be heard on whether restoration is in the interests of justice.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
If restoring the person to mental competence is in the interests of justice, the court shall state its reasons orally on the record and the case shall proceed as provided in subparagraph (C).
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
If restoring the person to mental competence is not in the interests of justice, the court shall conduct a hearing, pursuant to Section 1001.36, and, if the court deems the defendant eligible, grant diversion pursuant to that section for a period not to exceed two years from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the complaint, whichever is shorter.
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
The hearing shall be held no later than 30 days after the finding of incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
If the defendant performs satisfactorily on diversion pursuant to this subclause, at the end of the period of diversion, the court shall
dismiss the criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.
</html:p>
<html:p>
(III)
<html:span class="EnSpace"/>
If the court finds the defendant ineligible or unsuitable for diversion based on the circumstances set forth in subdivision (b) or (c) of Section 1001.36, or if any of the conditions described in subdivision (g) of Section 1001.36 are present, the court may, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether to do any of the following:
</html:p>
<html:p>
(ia)
<html:span class="EnSpace"/>
Order modification of the treatment plan in accordance with a recommendation from the treatment provider.
</html:p>
<html:p>
(ib)
<html:span class="EnSpace"/>
Refer the defendant to assisted outpatient treatment pursuant to Section 5346 of the Welfare and Institutions Code. A referral to assisted outpatient treatment may only occur in a county where
services are available pursuant to Section 5348 of the Welfare and Institutions Code, and the agency agrees to accept responsibility for treatment of the defendant. A hearing to determine eligibility for assisted outpatient treatment shall be held within 45 days after the finding of incompetence. If the hearing is delayed beyond 45 days, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into assisted outpatient treatment, the charges shall be dismissed, pursuant to Section 1385, six months after the date of the referral to assisted outpatient treatment, unless the defendant’s case is referred back to the court before the expiration of that time period. This section does not alter the confidential nature
of assisted outpatient treatment.
</html:p>
<html:p>
(ic)
<html:span class="EnSpace"/>
Refer the defendant to the county conservatorship investigator in the county of commitment for possible 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. A defendant shall only be referred to the conservatorship investigator if it appears to the court or a qualified mental health expert that the defendant appears to be gravely disabled, as defined in paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. Any hearings required in the conservatorship proceedings shall be held in the superior court in the county of commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the county mental health director or the director’s designee and shall notify the county mental health director or their
designee of the outcome of the proceedings. Before establishing a conservatorship, the public guardian shall investigate all available alternatives to conservatorship pursuant to Section 5354 of the Welfare and Institutions Code. If a petition is not filed within 30 days of the referral, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending conservatorship proceedings. If the conservatorship proceedings result in the filing of a petition for the establishment of a temporary or permanent conservatorship, the charges shall be dismissed, pursuant to Section 1385, 90 days after the date of the filing of the petition, unless the case is referred back to the court before the expiration of that time period, or the basis for the petition is 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. This section does not alter the confidential nature
of conservatorship proceedings.
</html:p>
<html:p>
(id)
<html:span class="EnSpace"/>
Refer the defendant to the CARE Act court pursuant to Section 5978 of the Welfare and Institutions Code. The CARE Act court shall hold a hearing to determine eligibility for the CARE program within 14 court days after
the date of the referral. If the hearing is delayed beyond 14 court days, the court shall order the defendant, if confined in a county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into the CARE program, the CARE Act court shall notify the criminal court of the acceptance, and the charges shall be dismissed, pursuant to Section 1385, six months after the date of the referral to the CARE program, unless the case is referred back to the court before the expiration of that time period. Except as otherwise provided in this section and in Sections 5978 and 5978.2 of the Welfare and Institutions Code, this paragraph does not alter the confidential nature of CARE program proceedings.
</html:p>
<html:p>
(ie)
<html:span class="EnSpace"/>
Reinstate competency proceedings, in which case the court shall credit any time spent in mental health diversion against the maximum term of commitment as specified in paragraph (1) of
subdivision (c).
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
A county behavioral health agency and jail medical provider may share confidential medical records and other relevant information with the court, including, but not limited to, prior interactions with and treatment of the defendant, for the purpose of determining the likelihood of eligibility for behavioral health services and programs pursuant to this section. The disclosure of information pursuant to this subdivision is subject to applicable state and federal privacy laws.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
If the defendant is found mentally incompetent and restoring the defendant to competence is in the interests of justice or they are charged with an offense listed in subdivision (d) of Section 1001.36, the trial, the hearing on the alleged violation, or the judgment shall be
suspended until the person becomes mentally competent.
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
The court shall order that the mentally incompetent defendant be delivered by the sheriff to a State Department of State Hospitals facility, as defined in Section 4100 of the Welfare and Institutions Code, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a community-based residential treatment system approved by the community program director, or their designee, that will promote the defendant’s speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
(I)
<html:span class="EnSpace"/>
If a defendant has been found mentally incompetent, and the court has ordered commitment to a State Department of State Hospitals facility as described in Section 4100 of the Welfare and Institutions Code, and is not in
the custody of the local sheriff, the department shall inform the sheriff when a placement in a facility becomes available and make reasonable efforts to coordinate a delivery by the sheriff to transport the defendant to the facility. If the department has made reasonable attempts for 90 days, starting with the date of commitment, and the defendant has not been transported, as originally ordered under clause (i), the department shall inform the court and sheriff in writing.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
If the sheriff has not delivered the defendant to a State Department of State Hospitals facility within 90 days after the department’s written notice, the commitment to the State Department of State Hospitals shall be automatically stayed and the department may remove the defendant from the pending placement list until the court notifies the department in writing that the defendant is available for transport and the defendant shall regain their place on the pending
placement list.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
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 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 Department of State Hospitals facility, as directed by the State Department of State Hospitals, or other secure treatment facility for the care and treatment of persons with a mental health disorder, 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.
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
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 Department of State Hospitals facility, 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.
</html:p>
<html:p>
(v)
<html:span class="EnSpace"/>
(I)
<html:span class="EnSpace"/>
If, at any time after the court finds that the defendant is mentally incompetent and before the defendant is transported to a facility pursuant to this section, the court is provided with any information that the defendant may benefit from diversion pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, the court may make a finding that the defendant is an appropriate candidate for diversion.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
Notwithstanding subclause (I), if a defendant is found mentally incompetent and is transferred to a facility described in Section 4361.6 of the Welfare and Institutions Code, the court may, at any time upon receiving any information that the defendant may benefit from diversion pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, make a finding that the defendant is an appropriate
candidate for diversion.
</html:p>
<html:p>
(vi)
<html:span class="EnSpace"/>
If a defendant is found by the court to be an appropriate candidate for diversion pursuant to clause (v), the defendant’s eligibility shall be determined pursuant to Section 1001.36. A defendant granted diversion may participate for the lesser of the period specified in paragraph (1) of subdivision (c) or the applicable period described in subparagraph (C) of paragraph (1) of subdivision (f) of Section 1001.36. If, during that period, the court determines that criminal proceedings should be reinstated pursuant to subdivision (g) of Section 1001.36, the court shall, pursuant to Section 1369, appoint a psychiatrist, licensed psychologist, or any other expert the court may deem appropriate, to determine the defendant’s competence to stand trial.
</html:p>
<html:p>
(vii)
<html:span class="EnSpace"/>
Upon the dismissal of charges at the conclusion of the period of diversion, pursuant to subdivision (h)
of Section 1001.36, a defendant shall no longer be deemed incompetent to stand trial pursuant to this section.
</html:p>
<html:p>
(viii)
<html:span class="EnSpace"/>
The clerk of the court shall notify the Department of Justice, in writing, of a finding of mental incompetence with respect to a defendant who is subject to clause (iii) or (iv) for inclusion in the defendant’s state summary criminal history information.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
If at any time after the finding of mental incompetence, but before the defendant begins treatment in a program or facility to promote the defendant’s speedy restoration of mental competence pursuant to this section, there is a change in circumstance that affects the likelihood that the defendant will be able to be attain competence, either party may instead petition the court to proceed in accordance with subdivision (b).
</html:p>
<html:p>
(E)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(F)
<html:span class="EnSpace"/>
A defendant charged with a violent felony may not be delivered to a State Department of State Hospitals facility or treatment facility pursuant to this subdivision unless the State Department of State Hospitals facility 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.
</html:p>
<html:p>
(G)
<html:span class="EnSpace"/>
For purposes of this paragraph, “violent felony” means an offense specified in subdivision (c) of Section 667.5.
</html:p>
<html:p>
(H)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
If, at any time after the court has declared a defendant incompetent to stand trial pursuant to this section, counsel for the defendant or a jail medical or mental health staff provider provides the court with substantial evidence that the defendant’s psychiatric symptoms have changed to such a degree as to create a doubt in the mind of the judge as to the defendant’s current mental incompetence, the court may appoint a psychiatrist or a licensed psychologist to opine as
to whether the defendant has attained competence. If, in the opinion of that expert, the defendant has attained competence, the court shall proceed as if a certificate of restoration of competence has been returned pursuant to paragraph (1) of subdivision (a) of Section 1372.
</html:p>
<html:p>
(J)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
The State Department of State Hospitals may, pursuant to Section 4335.2 of the Welfare and Institutions Code, conduct an evaluation of the defendant in county custody to determine any of the following:
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
The defendant has attained competence.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
There is no substantial likelihood that the defendant will attain competence in the foreseeable future.
</html:p>
<html:p>
(III)
<html:span class="EnSpace"/>
The defendant should be referred to the county for further evaluation for potential
participation in a county diversion program, if one exists, or to another outpatient treatment program.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
If, in the opinion of the department’s expert, the defendant has attained competence, the court shall proceed as if a certificate of restoration of competence has been returned pursuant to paragraph (1) of subdivision (a) of Section 1372.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
If, in the opinion of the department’s expert, there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the committing court shall proceed pursuant to paragraph (3) of subdivision (c) no later than 10 days following receipt of the report.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
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:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
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 Department of State Hospitals facility or other treatment facility or placed on outpatient status under this section without having been evaluated by the community program director or a designee. The community program director or designee shall evaluate the appropriate placement for the defendant between a State Department of State Hospitals facility or the community-based residential treatment system based upon guidelines provided by the State Department of State Hospitals.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
A defendant shall first be considered for placement in an outpatient treatment program, a community treatment program, or a diversion program, if any such program is available, unless a court, based upon the recommendation of the community program director or their designee, finds that either the clinical needs of the defendant or the risk to community safety, warrant placement in a State Department of State Hospitals facility.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
The court shall hear and determine whether the defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication. The court shall consider opinions in the reports prepared pursuant to subdivision (b) of Section 1369, as applicable to the issue of whether the defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication, and shall proceed as follows:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
The court shall hear and determine whether any of the following is true:
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
Based upon the opinion of the psychiatrist or licensed psychologist offered to the court pursuant to subdivision (b) of Section 1369, the defendant lacks the 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 defendant 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 their physical or mental health, or the defendant has previously suffered these effects as a result of a mental disorder and their 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.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
Based upon the opinion of the psychiatrist or licensed psychologist offered to the court pursuant to subdivision (b) of Section 1369, 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 the defendant 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.
</html:p>
<html:p>
(III)
<html:span class="EnSpace"/>
The people have charged the defendant with a serious crime against the person or property, and based upon the opinion of the psychiatrist offered to the court pursuant to subdivision (b) of Section 1369, the 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 medically necessary and appropriate in light of their
medical condition.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
(I)
<html:span class="EnSpace"/>
If the court finds the conditions described in subclause (I) or (II) of clause (i) to be true, and if pursuant to the opinion offered to the court pursuant to subdivision (b) of Section 1369, a psychiatrist has opined that treatment with antipsychotic medications is appropriate for the defendant, the court shall issue an order authorizing the administration of antipsychotic medication as needed, including on an involuntary basis, to be administered under the direction and supervision of a licensed psychiatrist.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
If the court finds the conditions described in subclause (I) or (II) of clause (i) to be true, and if pursuant to the opinion offered to the court pursuant subdivision (b) of Section 1369, a licensed psychologist has opined that treatment with antipsychotic medication may be appropriate for the defendant, the court
shall issue an order authorizing treatment by a licensed psychiatrist on an involuntary basis. That treatment may include the administration of antipsychotic medication as needed, to be administered under the direction and supervision of a licensed psychiatrist.
</html:p>
<html:p>
(III)
<html:span class="EnSpace"/>
If the court finds the conditions described in subclause (III) of clause (i) to be true, and if pursuant to the opinion offered to the court pursuant to subdivision (b) of Section 1369, a psychiatrist has opined that it is appropriate to treat the defendant with antipsychotic medication, the court shall issue an order authorizing the administration of antipsychotic medication as needed, including on an involuntary basis, to be administered under the direction and supervision of a licensed psychiatrist.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
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, including a county jail, shall remain in effect when the defendant returns to county custody pursuant to subparagraph (A) of paragraph (1) of subdivision (b) or paragraph (1) of subdivision (c), or pursuant to subparagraph (C) of paragraph (3) of subdivision (a) of Section 1372, but 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).
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
In all cases, the treating hospital, county jail, 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.
</html:p>
<html:p>
(v)
<html:span class="EnSpace"/>
If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication, and if the defendant, with advice of their 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.
</html:p>
<html:p>
(vi)
<html:span class="EnSpace"/>
If the court has determined that the defendant has the capacity to make decisions regarding antipsychotic medication and if the defendant, with advice from their 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.
</html:p>
<html:p>
(vii)
<html:span class="EnSpace"/>
A report made pursuant to paragraph (1) of subdivision (b) shall include a description of 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 Department of State Hospitals facility 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 Department of State Hospitals facility or other treatment facility, shall have the right to contact the patients’ rights advocate regarding the defendant’s rights under this section.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
If the defendant consented to antipsychotic medication as described in clause (iv) of subparagraph (B), but subsequently withdraws their 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 the 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.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
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 the defendant’s interests at the hearing, review the panel’s final determination following the hearing, advise the defendant of their 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:
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
To be given timely access to the defendant’s records.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
To be present at the hearing, unless the defendant waives that right.
</html:p>
<html:p>
(III)
<html:span class="EnSpace"/>
To present evidence at the hearing.
</html:p>
<html:p>
(IV)
<html:span class="EnSpace"/>
To question persons presenting evidence supporting involuntary medication.
</html:p>
<html:p>
(V)
<html:span class="EnSpace"/>
To make reasonable requests for attendance of witnesses on the defendant’s behalf.
</html:p>
<html:p>
(VI)
<html:span class="EnSpace"/>
To a hearing conducted in an impartial and informal manner.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
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), 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.
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(v)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(vi)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(vii)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(viii)
<html:span class="EnSpace"/>
The district attorney, county counsel, or representative of 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).
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
When the court orders that the defendant be committed to a State Department of State Hospitals facility 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:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
The commitment order, which shall include a specification of the charges, an assessment of whether involuntary treatment with antipsychotic medications is warranted, and any orders by the court, pursuant to subparagraph (B) of paragraph (2), authorizing involuntary treatment with antipsychotic medications.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
A computation or statement setting forth the
maximum term of commitment in accordance with subdivision (c).
</html:p>
<html:p>
(iii)
<html:span class="EnSpace"/>
(I)
<html:span class="EnSpace"/>
A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
</html:p>
<html:p>
(II)
<html:span class="EnSpace"/>
If a certificate of restoration of competency was filed with the court pursuant to Section 1372 and the court subsequently rejected the certification, a copy of the court order or minute order rejecting the certification shall be provided. The court order shall include a new computation or statement setting forth the amount of credit for time served, if any, to be deducted from the defendant’s maximum term of commitment based on the court’s rejection of the certification.
</html:p>
<html:p>
(iv)
<html:span class="EnSpace"/>
State summary criminal history information.
</html:p>
<html:p>
(v)
<html:span class="EnSpace"/>
Jail classification records for the defendant’s current incarceration.
</html:p>
<html:p>
(vi)
<html:span class="EnSpace"/>
Arrest reports prepared by the police department or other law enforcement agency.
</html:p>
<html:p>
(vii)
<html:span class="EnSpace"/>
Court-ordered psychiatric examination or evaluation reports.
</html:p>
<html:p>
(viii)
<html:span class="EnSpace"/>
The community program director’s placement recommendation report.
</html:p>
<html:p>
(ix)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(x)
<html:span class="EnSpace"/>
Medical records, including jail mental health records.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If a defendant
is committed to a State Department of State Hospitals facility, and the department determines that additional medical or mental health treatment records are needed for continuity of care, any private or public entity holding medical or mental health treatment records of that defendant shall release those records upon receiving a written request from the State Department of State Hospitals within 10 calendar days after the request. The private or public entity holding the medical or mental health treatment records shall comply with all applicable federal and state privacy laws prior to disclosure. The State Department of State Hospitals shall not release records obtained during the admission process under this subdivision, pursuant to Section 1798.68 of the Civil Code, or subdivision (b) of Section 5328 of the Welfare and Institutions Code.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
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 (iii) or (iv) of subparagraph (B) of paragraph (1) to assign the defendant to a treatment facility other than a State Department of State Hospitals facility 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 placement facility of a finding of mental incompetence pursuant to this chapter arising out of a charge of a Section 290 offense.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
When directing that the defendant be confined in a State Department of State Hospitals facility pursuant to this subdivision, the court shall commit the defendant to the State Department of State Hospitals.
</html:p>
<html:p>
(6)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
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 Department of State Hospitals facility 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.
</html:p>
<html:p>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.</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If the defendant is initially committed to a State Department of State Hospitals facility or secure treatment facility pursuant to clause (iii) or (iv) of subparagraph (B) of paragraph (1) and is subsequently transferred to any other facility, copies of the documents specified in
paragraph (3) shall be electronically transferred or 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 (iii) or (iv) of subparagraph (B) of paragraph (1).
</html:p>
<html:p>
(7)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
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 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.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
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 a petition to renew an order for involuntary medication shall be conducted prior to the expiration of the current order.
</html:p>
<html:p>
(8)
<html:span class="EnSpace"/>
For purposes of subparagraph (D) of paragraph (2) and paragraph (7), if the treating psychiatrist determines that there is a need, based on preserving their rapport with the defendant or preventing harm, the treating psychiatrist may request that the facility medical director designate another psychiatrist to act in the place of the treating psychiatrist. If the medical director of the facility designates another psychiatrist to act pursuant to this paragraph, the treating psychiatrist shall brief the acting psychiatrist of the relevant facts of the case and the acting psychiatrist shall examine the defendant prior to the hearing.
</html:p>
<html:p>
(b)
<html:span class="EnSpace"/>
(1)
<html:span class="EnSpace"/>
Within 90 days after a commitment made pursuant to subdivision
(a), the medical director of the State Department of State Hospitals facility 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.
</html:p>
<html:p>If the defendant is in county custody, the county jail shall provide access to the defendant for purposes of the State Department of State Hospitals conducting an evaluation of the defendant pursuant to Section 4335.2 of the Welfare and Institutions Code. Based upon this evaluation, the State Department of State Hospitals may make a written report to the court within 90 days of a commitment made pursuant to subdivision (a) concerning the defendant’s progress toward recovery of mental competence and whether the administration of antipsychotic
medication is necessary. If the defendant remains in county custody after the initial 90-day report, the State Department of State Hospitals may conduct an evaluation of the defendant pursuant to Section 4335.2 of the Welfare and Institutions Code and make a written report to the court concerning the defendant’s progress toward recovery of mental competence and whether the administration of antipsychotic medication is necessary.</html:p>
<html:p>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 attain mental competence in the foreseeable future, the defendant shall remain in the
State Department of State Hospitals facility 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 State Department of State Hospitals facility 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.</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
If the report indicates that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, custody of the defendant shall be transferred without delay to the committing county and shall remain with the county until further order of the court. The defendant shall be returned to the court for proceedings pursuant to paragraph (3) of subdivision (c) no later than 10 days following receipt of the report. The court shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment. The court shall transmit a copy of its order to the community program director or a designee.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If the report indicates that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the medical director of the State Department of State Hospitals
facility or other treatment facility to which the defendant is confined shall do both of the following:
</html:p>
<html:p>
(i)
<html:span class="EnSpace"/>
Promptly notify and provide a copy of the report to the defense counsel and the district attorney.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
Provide a separate notification, in compliance with applicable privacy laws, to the committing county’s sheriff that immediate transportation will be needed for the defendant pursuant to subparagraph (A).
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
If a county does not take custody of a defendant committed to the State Department of State Hospitals within 10 calendar days following notification made pursuant to clause (ii) of subparagraph (B), the county shall be charged the daily rate for a state hospital bed, as established by the State Department of State Hospitals.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
The reports
made pursuant to paragraph (1) concerning the defendant’s progress toward attaining competency shall also consider the issue of involuntary medication. Each report shall include, but not be limited to, all of the following:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
Whether or not the defendant has the capacity to make decisions concerning antipsychotic medication.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If the defendant lacks the capacity to make decisions concerning antipsychotic medication, whether the defendant risks serious harm to their physical or mental health if not treated with antipsychotic medication.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
Whether or not the defendant presents a danger to others if the defendant is not treated with antipsychotic medication.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
Whether the defendant has a mental disorder for which medications are the only effective
treatment.
</html:p>
<html:p>
(E)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(F)
<html:span class="EnSpace"/>
Whether there are any effective alternatives to medication.
</html:p>
<html:p>
(G)
<html:span class="EnSpace"/>
How quickly the medication is likely to bring the defendant to competency.
</html:p>
<html:p>
(H)
<html:span class="EnSpace"/>
Whether the treatment plan includes methods other than medication to restore the defendant to competency.
</html:p>
<html:p>
(I)
<html:span class="EnSpace"/>
A statement, if applicable, that no medication is likely to restore the defendant to competency.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
After reviewing the reports, the court shall determine if grounds for the
involuntary administration of antipsychotic medication exist, whether or not an order was issued at the time of commitment, and shall do one of the following:
</html:p>
<html:p>
(A)
<html:span class="EnSpace"/>
If the original grounds for involuntary medication still exist, any order authorizing the treating facility to involuntarily administer antipsychotic medication to the defendant shall remain in effect.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If the original grounds for involuntary medication no longer exist, and there is no other basis for involuntary administration of antipsychotic medication, any order for the involuntary administration of antipsychotic medication shall be vacated.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
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 determine
whether to vacate the order or issue a new order for the involuntary administration of antipsychotic medication. The court shall consider the opinions in reports submitted pursuant to paragraph (1), including any opinions rendered pursuant to Section 4335.2 of the Welfare and Institutions Code. The court may, upon a showing of good cause, 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). The court shall require witness testimony to occur remotely, including clinical testimony pursuant to subdivision (d) of Section 4335.2 of the Welfare and Institutions Code. In-person witness testimony shall only be allowed upon a court’s finding of good cause.
</html:p>
<html:p>
(D)
<html:span class="EnSpace"/>
If the
report states a basis for involuntary administration of antipsychotic medication and the court did not issue such order at the time of commitment, the court shall determine whether to issue an order for the involuntary administration of antipsychotic medication. The court shall consider the opinions in reports submitted pursuant to paragraph (1), including any opinions rendered pursuant to Section 4335.2 of the Welfare and Institutions Code. The court may, upon a finding of good cause, set a hearing within 21 days to determine whether an 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). The court shall require witness testimony to occur remotely, including clinical testimony pursuant to subdivision (d) of Section 4335.2 of the Welfare and Institutions Code. In-person witness testimony shall only be allowed upon a court’s finding of good cause.
</html:p>
<html:p>
(E)
<html:span class="EnSpace"/>
This paragraph also applies to recommendations submitted pursuant to subdivision (e) of Section 1372, when a recommendation is included as to whether an order for the involuntary administration of antipsychotic medications should be extended or issued.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
If it is determined by the court that treatment for the defendant’s mental impairment is not being conducted, the defendant shall be returned to the committing court, and, if the defendant is not in county custody, returned to the custody of the county. The court shall transmit a copy of its order to the community program director or a designee.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
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 Department of State Hospitals facility 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).
</html:p>
<html:p>
(c)
<html:span class="EnSpace"/>
(1)
<html:span class="EnSpace"/>
At the end of two 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 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, and custody of the defendant shall be transferred without delay to the committing county and
shall remain with the county until further order of the court. The court shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment. The court shall notify the community program director or a designee of the return and of any resulting court orders. The maximum term of commitment applies to the aggregate of all previous commitments.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
The medical director of the State Department of State Hospitals facility or other treatment facility to which the defendant is confined shall provide notification, in compliance with applicable privacy laws, to the committing county’s sheriff that immediate transportation will be needed for the defendant pursuant to paragraph (1).
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
If a county does not take custody of a defendant committed to the State Department of State Hospitals within 10 calendar days
following notification pursuant to subparagraph (A), the county shall be charged the daily rate for a state hospital bed, as established by the State Department of State Hospitals.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
Whenever a defendant is returned to the court pursuant to paragraph (1) of this subdivision, subparagraph (D) of paragraph (1) of subdivision (a), or paragraph (1) or (4) of subdivision (b), and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) or (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. 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.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
If a defendant is returned to court pursuant to paragraph (1) of this subdivision, subparagraph (D) of paragraph (1) of subdivision (a), or paragraph (1) or (4) of subdivision (b), and the prosecution elects to dismiss and refile charges pursuant to Section 1387, the court shall presume that the defendant is incompetent unless the court is presented with relevant and credible evidence that the defendant is
competent. This evidence may include medical records, witness statements, or reports by qualified medical experts. If the court is satisfied that it has received substantial evidence that the defendant is competent, the court shall proceed as provided in Section 1369. Otherwise, the court shall find that the defendant is not mentally competent to stand trial and shall proceed as provided in paragraphs (1) and (3). The court shall not order the defendant returned to the custody of the State Department of State Hospitals for the purpose of restoration of competency.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
If a change in placement is proposed for a defendant who is committed pursuant to subparagraph (A) or (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.
</html:p>
<html:p>
(6)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(d)
<html:span class="EnSpace"/>
With the exception of proceedings alleging a violation of mandatory supervision, or in those instances where the defendant has been placed under a conservatorship pursuant to subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, 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 (3) 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.
</html:p>
<html:p>
(e)
<html:span class="EnSpace"/>
If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of 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).
</html:p>
<html:p>
(f)
<html:span class="EnSpace"/>
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.
</html:p>
<html:p>
(g)
<html:span class="EnSpace"/>
For the purpose of this section, “secure treatment facility” does not include, except for State Department of State Hospitals facilities, 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.
</html:p>
<html:p>
(h)
<html:span class="EnSpace"/>
This section does not preclude a defendant from filing a petition for habeas corpus to challenge the continuing validity of an order authorizing a treatment facility or outpatient program to involuntarily administer antipsychotic medication to a person being treated as
incompetent to stand trial.
</html:p>
</ns0:Content>
</ns0:LawSectionVersion>
</ns0:LawSection>
</ns0:Fragment>
</ns0:BillSection>
<ns0:BillSection id="id_8851D4D5-5F2D-4C6A-8C3C-0049938724DF">
<ns0:Num>SEC. 2.</ns0:Num>
<ns0:ActionLine action="IS_AMENDED" ns3:type="locator" ns3:href="urn:caml:codes:PEN:caml#xpointer(%2Fcaml%3ALawDoc%2Fcaml%3ACode%2Fcaml%3ALawHeading%5B%40type%3D'PART'%20and%20caml%3ANum%3D'2.'%5D%2Fcaml%3ALawHeading%5B%40type%3D'TITLE'%20and%20caml%3ANum%3D'10.'%5D%2Fcaml%3ALawHeading%5B%40type%3D'CHAPTER'%20and%20caml%3ANum%3D'6.'%5D%2Fcaml%3ALawSection%5Bcaml%3ANum%3D'1370.01.'%5D)" ns3:label="fractionType: LAW_SECTION">
Section 1370.01 of the
<ns0:DocName>Penal Code</ns0:DocName>
is amended to read:
</ns0:ActionLine>
<ns0:Fragment>
<ns0:LawSection id="id_6515FD77-991E-4A5F-BF96-9C6B7D489F66">
<ns0:Num>1370.01.</ns0:Num>
<ns0:LawSectionVersion id="id_42042C8E-273F-4DB6-AF59-0EF04778F82F">
<ns0:Content>
<html:p>
(a)
<html:span class="EnSpace"/>
If the defendant is found mentally competent, the criminal process shall resume, and the trial on the offense charged or hearing on the alleged violation shall proceed.
</html:p>
<html:p>
(b)
<html:span class="EnSpace"/>
If the defendant is found mentally incompetent, the trial, judgment, or hearing on the alleged violation shall be suspended and the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether to do one or more of the following:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
(A)
<html:span class="EnSpace"/>
(i)
<html:span class="EnSpace"/>
Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible and suitable, grant diversion pursuant to Section
1001.36 for a period not to exceed one year from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter.
</html:p>
<html:p>
(ii)
<html:span class="EnSpace"/>
Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a mental health diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code. However, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.
</html:p>
<html:p>
(B)
<html:span class="EnSpace"/>
Any hearing to determine eligibility and suitability for diversion shall be held no later than 30 days after the finding of
incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing.
</html:p>
<html:p>
(C)
<html:span class="EnSpace"/>
If the defendant performs satisfactorily on diversion pursuant to this section, at the end of the period of diversion, the court shall dismiss the criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
Refer the defendant to the CARE Act court pursuant to Section 5978 of the Welfare and Institutions Code, if the defendant or counsel for the defendant agrees to the referral and the court has reason to believe that the defendant may be eligible for the CARE program. The CARE Act court shall hold a hearing to determine eligibility for the CARE program within 30 court days after the date of the referral. If the hearing is delayed beyond 30 court days, the court shall order the
defendant, if confined in a county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into the CARE program, the CARE Act court shall notify the criminal court of the acceptance, and the charges shall be dismissed pursuant to Section 1385 six months after the date of the referral to the CARE program, unless the defendant’s case has been referred back to the court prior to the expiration of that six-month time period. If the defendant is not accepted into the CARE program or if the CARE Act court refers the defendant back to criminal court before the expiration of the six-month time period, the court shall proceed as provided in paragraph (1). Except as provided in this section and Sections 5978 and 5978.2 of the Welfare and Institutions Code, this paragraph does not alter the confidential nature of CARE program proceedings.
</html:p>
<html:p>
(c)
<html:span class="EnSpace"/>
If the court finds the defendant ineligible or unsuitable for diversion
based on the circumstances set forth in subdivision (b), (c), (d), or (g) of Section 1001.36, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine which one of the following actions the court will take:
</html:p>
<html:p>
(1)
<html:span class="EnSpace"/>
Order modification of an existing mental health diversion treatment plan in accordance with a recommendation from the treatment provider.
</html:p>
<html:p>
(2)
<html:span class="EnSpace"/>
Refer the defendant to assisted outpatient treatment pursuant to Section 5346 of the Welfare and Institutions Code. A referral to assisted outpatient treatment may only occur in a county where services are available pursuant to Section 5348 of the Welfare and Institutions Code, and the agency agrees to accept responsibility for treatment of the defendant. A hearing to determine eligibility for assisted outpatient treatment shall be held within 45 days after the finding of
incompetency. If the hearing is delayed beyond 45 days, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into assisted outpatient treatment, the charges shall be dismissed pursuant to Section 1385 six months after the date of the referral to assisted outpatient treatment, unless the defendant’s case has been referred back to the court prior to the expiration of that time period. This section does not alter the confidential nature of assisted outpatient treatment.
</html:p>
<html:p>
(3)
<html:span class="EnSpace"/>
Refer the defendant to the county conservatorship investigator in the county of commitment for possible 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. A defendant shall only be referred to the conservatorship investigator
if, in the opinion of the court or a qualified mental health expert, the defendant appears to be gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. Any hearings required in the conservatorship proceedings shall be held in the superior court in the county of commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the county mental health director or the director’s designee and shall notify the county mental health director or their designee of the outcome of the proceedings. Before establishing a conservatorship, the public guardian shall investigate all available alternatives to conservatorship pursuant to Section 5354 of the Welfare and Institutions Code. If a petition is not filed within 30 days of the referral, the court shall order the defendant, if confined in county jail, to be released on their own recognizance pending
conservatorship proceedings. If the outcome of the conservatorship proceedings results in the filing of a petition for the establishment of a temporary or permanent conservatorship, the charges shall be dismissed pursuant to Section 1385 90 days after the date of the filing of the petition, unless the defendant’s case has been referred back to the court prior to the expiration of that time period. This section does not alter the confidential nature of conservatorship proceedings.
</html:p>
<html:p>
(4)
<html:span class="EnSpace"/>
Refer the defendant to the CARE Act court pursuant to Section 5978 of the Welfare and Institutions Code. The CARE Act court shall hold a hearing to determine eligibility for the CARE program within 14 court days after the date that the petition is filed. If the hearing is delayed beyond 14 court days, the court shall order the defendant, if confined in a county jail, to be released on their own recognizance pending that hearing. If the defendant is accepted into
the CARE program, the CARE Act court shall notify the criminal court of the acceptance, and the charges shall be dismissed pursuant to Section 1385 six months after the date of the referral to the CARE program, unless the defendant’s case has been referred back to the court prior to the expiration of that time period. Except as provided in this section and Sections 5978 and 5978.2 of the Welfare and Institutions Code, this paragraph does not alter the confidential nature of CARE program proceedings.
</html:p>
<html:p>
(5)
<html:span class="EnSpace"/>
If the defendant does not qualify for services pursuant to paragraphs (1) to (4), inclusive, dismiss the charges.
</html:p>
<html:p>
(d)
<html:span class="EnSpace"/>
It is the intent of the Legislature that a defendant subject to the terms of this section receive mental health treatment in a treatment facility and not a jail. A term of four days will be deemed to have been served for every two days spent in actual custody
against the maximum period of treatment pursuant to paragraphs (2) and (4) of subdivision (c) and paragraphs (1) and (2) of subdivision (b), if applicable. A defendant not in actual custody shall otherwise receive day for day credit against the term of treatment from the date the defendant is accepted into treatment in the event that the criminal charges have not previously been dismissed. “Actual custody” has the same meaning as in Section 4019.
</html:p>
<html:p>
(e)
<html:span class="EnSpace"/>
The county behavioral health agency and jail medical providers may share confidential medical records and other relevant information with the court, including, but not limited to, prior interactions with and treatment of the defendant, for the purpose of determining likelihood of eligibility for behavioral health services and programs pursuant to this section. The disclosure of information pursuant to this subdivision is subject to applicable state and federal privacy laws.
</html:p>
<html:p>
(f)
<html:span class="EnSpace"/>
This section shall apply only as provided in subdivision (b) of Section 1367.
</html:p>
<html:p>
(g)
<html:span class="EnSpace"/>
It is the intent of the Legislature that the court shall consider all treatment options as provided in this section prior to dismissing criminal charges. However, nothing in this section limits a court’s discretion pursuant to Section 1385.
</html:p>
</ns0:Content>
</ns0:LawSectionVersion>
</ns0:LawSection>
</ns0:Fragment>
</ns0:BillSection>
</ns0:Bill>
</ns0:MeasureDoc>