AB 1584: Criminal procedure: competence to stand trial.
- Session Year: 2023-2024
- House: Assembly
- Latest Version Date: 2023-07-03
Current Status:
Failed
(2023-09-01: In committee: Held under submission.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Enacted
What does this bill do?
The bill changes how courts handle people charged with crimes who are found mentally incompetent and how their mental evaluations are done. It requires one licensed mental‑health expert to examine the defendant (a second only if the defendant asks), file a written report within 30 days that addresses diagnosis, ability to understand the proceedings, likelihood of restoration, and diversion eligibility, and makes any statements by the defendant in the exam inadmissible in later proceedings. For felony cases not barred from diversion, the judge must decide whether restoring competence is in the interests of justice and, if not, either grant mental‑health pretrial diversion or dismiss the charges; a defendant who returns to court still incompetent is presumed incompetent and sent back to treatment.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which, if the mental competency of a defendant is in doubt, the defendants mental competency is evaluated and the defendant receives treatment with the goal of returning the defendant to competency, as specified. Existing law requires a court to appoint 2 mental health professionals to examine a defendant if the defendant is seeking a finding of mental incompetence.
This bill would require this process to be based on substantial evidence that the defendant is incompetent to stand trial. The bill would only require the appointment of a 2nd mental health professional if requested by the defendant. The bill would require the evaluating mental health professional to submit a report to the court within 30 days and would specify the required contents of the report. The bill would also clarify that any statements made by the defendant as part of the evaluation are inadmissible in subsequent proceedings.
This bill would authorize the court, if no objection is made to the report, to make a finding of the defendants competence based on the report. The bill would, if any party objects to the report, require the court to hold a hearing to determine competence, as specified.
Existing law, in the case of a defendant charged with a felony, requires that, upon a finding of mental incompetence, the proceedings be suspended until the defendant regains competence. Existing law prescribes a program of pretrial diversion for defendants with a diagnosed mental disorder whose disorder was a significant factor in the commission of their offense. Under existing law, persons charged with certain offenses, including murder, rape, sexual abuse of a child, and possession of a weapon of mass destruction, are ineligible for diversion.
This bill would require the court, upon a finding of mental incompetence of a defendant charged with a felony that is not ineligible for diversion, to determine if it is in the interests of justice to restore the defendant to competence. The bill would require the court, if the restoration of the defendants mental competence is not in the interests of justice, to either grant mental health diversion to the defendant or dismiss the charges against the defendant, as specified.
If a defendant is returned to court having not been restored to mental competence, this bill would require the defendant to be presumed incompetent and, if the charges are not dismissed, be returned to treatment, as specified.
The bill would make other conforming changes.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which, if the mental competency of a defendant is in doubt, the defendants mental competency is evaluated and the defendant receives treatment with the goal of returning the defendant to competency, as specified. Existing law requires a court to appoint 2 mental health professionals to examine a defendant if the defendant is seeking a finding of mental incompetence.
This bill would require this process to be based on substantial evidence that the defendant is incompetent to stand trial. The bill would only require the appointment of a 2nd mental health professional if requested by the defendant. The bill would require the evaluating mental health professional to submit a report to the court within 30 days and would specify the required contents of the report. The bill would also clarify that any statements made by the defendant as part of the evaluation are inadmissible in subsequent proceedings.
This bill would authorize the court, if no objection is made to the report, to make a finding of the defendants competence based on the report. The bill would, if any party objects to the report, require the court to hold a hearing to determine competence, as specified.
Existing law, in the case of a defendant charged with a felony, requires that, upon a finding of mental incompetence, the proceedings be suspended until the defendant regains competence. Existing law prescribes a program of pretrial diversion for defendants with a diagnosed mental disorder whose disorder was a significant factor in the commission of their offense. Under existing law, persons charged with certain offenses, including murder, rape, sexual abuse of a child, and possession of a weapon of mass destruction, are ineligible for diversion.
This bill would require the court, upon a finding of mental incompetence of a defendant charged with a felony that is not ineligible for diversion, to determine if it is in the interests of justice to restore the defendant to competence. The bill would require the court, if the restoration of the defendants mental competence is not in the interests of justice, to either grant mental health diversion to the defendant or dismiss the charges against the defendant, as specified. The bill would create a rebuttable presumption that it is not in the interests of justice to restore to competence any defendant charged with certain offenses, including any felony offense not punishable by imprisonment in the state prison, any wobbler, robbery, and assault with a deadly weapon.
If a defendant is returned to court having not been restored to mental competence, this bill would require the defendant to be presumed incompetent and, if the charges are not dismissed, be returned to treatment, as specified.
The bill would make other conforming changes.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which, if the mental competency of a defendant is in doubt, the defendants mental competency is evaluated and the defendant receives treatment with the goal of returning the defendant to competency, as specified. Existing law requires a court to appoint 2 mental health professionals to examine a defendant if the defendant is seeking a finding of mental incompetence.
This bill would require this process to be based on substantial evidence that the defendant is incompetent to stand trial. The bill would only require the appointment of a 2nd mental health professional if requested by the defendant. The bill would require the evaluating mental health professional to submit a report to the court within 30 days and would specify the required contents of the report. The bill would also clarify that any statements made by the defendant as part of the evaluation are inadmissible in subsequent proceedings.
This bill would authorize the court, if no objection is made to the report, to make a finding of the defendants competence based on the report. The bill would, if any party objects to the report, require the court to hold a hearing to determine competence, as specified.
Existing law, in the case of a defendant charged with a felony, requires that, upon a finding of mental incompetence, the proceedings be suspended until the defendant regains competence. Existing law prescribes a program of pretrial diversion for defendants with a diagnosed mental disorder whose disorder was a significant factor in the commission of their offense. Under existing law, persons charged with certain offenses, including murder, rape, sexual abuse of a child, and possession of a weapon of mass destruction, are ineligible for diversion.
This bill would require the court, upon a finding of mental incompetence of a defendant charged with a felony that is not ineligible for diversion, to determine if it is in the interests of justice to restore the defendant to competence. The bill would require the court, if the restoration of the defendants mental competence is not in the interests of justice, to either grant mental health diversion to the defendant or dismiss the charges against the defendant, as specified. The bill would create a rebuttable presumption that it is not in the interests of justice to restore to competence any defendant charged with certain offenses, including any felony offense not punishable by imprisonment in the state prison, any wobbler, robbery, and assault with a deadly weapon.
If a defendant is returned to court having not been restored to mental competence, this bill would require the defendant to be presumed incompetent and, if the charges are not dismissed, be returned to treatment, as specified.
The bill would make other conforming changes.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert whom the court may deem appropriate, to examine the defendant. Existing law makes all documents submitted to a court pursuant to this process presumptively confidential, except as otherwise provided by law, requires the documents to be retained in the confidential portion of the courts file, and requires counsel for the defendant and the prosecution to maintain the documents as confidential. Existing law requires a motion, application, or petition to access the documents to be decided according to specified court rules.This bill would make a technical, nonsubstantive change to these provisions.Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendants mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert whom the court may deem appropriate, to examine the defendant. Existing law makes all documents submitted to a court pursuant to this process presumptively confidential, except as otherwise provided by law, requires the documents to be retained in the confidential portion of the courts file, and requires counsel for the defendant and the prosecution to maintain the documents as confidential. Existing law requires a motion, application, or petition to access the documents to be decided according to specified court rules.
This bill would make a technical, nonsubstantive change to these provisions.
(a)On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).
(b)A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:
(1)The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendants mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendants medical records, arrest reports, or any other relevant evidence.
(2)The defendants mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendants mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendants involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendants mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
(c)For any defendant who satisfies the eligibility requirements in subdivision (b), the court must consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met:
(1)In the opinion of a qualified mental health expert, the defendants symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.
(2)The defendant consents to diversion and waives the defendants right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendants mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendants right to a speedy trial.
(3)The defendant agrees to comply with treatment as a condition of diversion, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendants mental incompetence, cannot agree to comply with treatment.
(4)The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendants treatment plan, the defendants violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(d)A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1)Murder or voluntary manslaughter.
(2)An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3)Rape.
(4)Lewd or lascivious act on a child under 14 years of age.
(5)Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(6)Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(7)Continuous sexual abuse of a child, in violation of Section 288.5.
(8)A violation of subdivision (b) or (c) of Section 11418.
(e)At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.
(f)As used in this chapter, the following terms have the following meanings:
(1)Pretrial diversion means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
(A)(i)The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
(ii)The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
(iii)If the court refers the defendant to a county mental health agency pursuant to this section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.
(B)The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendants progress in treatment.
(C)The period during which criminal proceedings against the defendant may be diverted is limited as follows:
(i)If the defendant is charged with a felony, the period shall be no longer than two years.
(ii)If the defendant is charged with a misdemeanor, the period shall be no longer than one year.
(D)Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendants inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(2)Qualified mental health expert includes, but is not limited to, a psychiatrist, psychologist, a person described in Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert.
(g)If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment 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:
(1)The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendants propensity for violence.
(2)The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3)The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4)Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A)The defendant is performing unsatisfactorily in the assigned program.
(B)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. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
(h)If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendants criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendants mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendants prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).
(i)A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendants application for or participation in diversion, shall not, without the defendants consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(j)The defendant shall be advised that, regardless of the defendants completion of diversion, both of the following apply:
(1)The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2)An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agencys ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(k)A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendants treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendants eligibility for diversion under this section may not be used in any other proceeding without the defendants consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(l)The county agency administering the diversion, the defendants mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendants medical and psychological records, including progress reports, during the defendants time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.
SEC. 2.Section 1369 of the Penal Code is amended to read:1369.A trial by court or jury determination of the question of mental competence shall proceed in the following order:
(a)(1)If the court is presented with substantial evidence that the defendant is incompetent to stand trial, the The court shall suspend the criminal proceedings and shall appoint at least one mental health expert to examine the defendants mental condition. If counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two mental health experts upon request of defense counsel, in which case one shall be named by the defense and one by the prosecution.
(2)If it is suspected the defendant has a developmental disability, the court shall appoint the director of the regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the directors designee, to examine the defendant to determine whether the defendant has a developmental disability. The regional center director or their designee shall determine whether the defendant has a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, and is therefore eligible for regional center services and supports. The regional center director or their designee shall provide the court with a written report informing the court of this determination.
(b)(1)A mental health expert shall evaluate the defendant and submit a written report to the court. The report shall include the opinion of the expert regarding all of the following matters:
(A)A diagnosis of the defendants mental condition, if any.
(B)Whether the defendant, as a result of a mental disorder or developmental disability, is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.
(C)Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future.
(D)If requested by the defense, an opinion as to whether the defendant is eligible for mental health diversion pursuant to Section 1001.36.
(2)Any statements made by the defendant during an examination pursuant to this section shall not be admissible in any other proceeding. This paragraph is intended to codify the holding of the United States Supreme Court in Estelle v. Smith (451 U.S. 454), and is therefore declarative of existing law.
(3)(A)The examining mental health expert licensed psychologists or psychiatrists shall evaluate whether treatment with antipsychotic medication, as defined in subdivision (l) of Section 5008 of the Welfare and Institutions Code, is appropriate for the defendant. The evaluation of whether treatment with antipsychotic medication is appropriate shall be done in accordance with subparagraphs (B) and (C). The examining licensed psychologists or psychiatrists shall also opine whether the defendant lacks the capacity to make decisions regarding antipsychotic medication, as outlined in subclauses (I) and (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(B)If a licensed psychologist examines the defendant and opines that treatment with antipsychotic medication may be appropriate, their opinion shall be based on whether the defendant has a mental disorder that is typically known to benefit from that treatment. A licensed psychologists opinion shall not exceed the scope of their license. That opinion about the potential benefit of antipsychotic medication is not a prescription for that medication.
(C)If a psychiatrist examines the defendant and opines that treatment with antipsychotic medication is appropriate, the psychiatrist shall inform the court of their opinion as to the likely or potential side effects of the medication, the expected efficacy of the medication, and possible alternative treatments, as outlined in subclause (III) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(4)The report of the mental health expert prepared pursuant to this subdivision shall be completed and filed with the court within 30 days after the order, unless waived by the defendant or unless the court finds good cause for an extension.
(c)(1)If neither party objects to any competency report, the court may determine the competency of the defendant based on any competency report.
(2)If either party objects to any competency report and requests a hearing, the court shall hold a hearing to determine competence.
(3)In a hearing to determine competence, the defendant is presumed competent to stand trial unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
(4)If the defendant waives the right to a jury trial or as provided in paragraph (5), the hearing shall be heard by the court. Otherwise, a determination of the defendants competency to stand trial shall be decided by a jury. The verdict of the jury shall be unanimous.
(5)In a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole, the hearing shall be heard by the court.
(d)(1)The State Department of State Hospitals, on or before July 1, 2017, shall adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court pursuant to this section. To develop these guidelines, the State Department of State Hospitals shall convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders.
(2)When making an appointment pursuant to this section, the court shall appoint an expert who meets the guidelines established in accordance with this subdivision or an expert with equivalent experience and skills. If there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills, the court may appoint an expert who does not meet the guidelines.
(e)As used in this section, mental health expert means a licensed psychologist or psychiatrist. However, this section does not preclude the court from appointing any other qualified expert to evaluate the defendants mental condition in addition to a licensed psychologist or psychiatrist.
SEC. 3.Section 1370 of the Penal Code is amended to read:1370.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent 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:
(i)Determine whether restoring the person to mental competence is in the interests of justice.
In exercising its discretion pursuant to this clause, the court shall consider the relevant circumstances of the charged offense, the defendants mental health condition and history of treatment, whether the defendant is likely to face incarceration if convicted, the likely length of any term of incarceration, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations.
(ii)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).
(iii)If restoring the person to mental competence is not in the interests of justice, the court may do either of the following:
(I)Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to Section 1001.36 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.
(ia)If the court opts to conduct a hearing pursuant to this subclause, 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.
(ib)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.
(ic)If the court finds the defendant ineligible for diversion based on the circumstances set forth in subdivision (b) or (d) of Section 1001.36, or if diversion is terminated unsuccessfully, 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:
(Ia)Order modification of the mental health diversion treatment plan in accordance with a recommendation from the treatment provider.
(Ib)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 date of the referral. 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.
(Ic)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 subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institution 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 directors 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 60 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 establishment of either a temporary or permanent conservatorship, the The charges shall be dismissed pursuant to Section 1385. 1385 upon the filing of a temporary or permanent conservatorship petition.
(Id)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).
(II)Dismiss the charges pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the county behavioral health director or the directors designee.
(C)If the defendant is found mentally incompetent, and restoring the defendant to competence is in the interests of justice or the defendant is 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.
(i)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 defendants 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 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.
(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 persons 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.
(iv) (I)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.
(II)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.
(v)If a defendant is found by the court to be an appropriate candidate for diversion pursuant to clause (iv), the defendants 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 two years. If, during that period, the court determines that criminal proceedings should be reinstated pursuant to subdivision (d) (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 defendants competence to stand trial.
(vi)Upon the dismissal of charges at the conclusion of the period of diversion, pursuant to subdivision (e) of Section 1001.36, a defendant shall no longer be deemed incompetent to stand trial pursuant to this section.
(vii)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 (ii) or (iii) for inclusion in the defendants state summary criminal history information.
(D)If at any time after the finding of mental incompetence, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the court shall proceed pursuant to paragraph (2) paragraphs (1) and (3) of subdivision (c).
(E)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.
(F)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.
(G)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(H)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.
(I)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 defendants psychiatric symptoms have changed to such a degree as to create a doubt in the mind of the judge as to the defendants 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.
(J)(i)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:
(I)The defendant has attained competence.
(II)There is no substantial likelihood that the defendant will attain competence in the foreseeable future.
(III)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.
(ii)If, in the opinion of the departments 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.
(iii)If, in the opinion of the departments 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 (2) of subdivision (c) no later than 10 days following receipt of the report.
(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) (i)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.
(ii)Commencing on July 1, 2023, 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.
(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 (b) 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)Based upon the opinion of the psychiatrist or licensed psychologist offered to the court pursuant to subdivision (b) of Section 1369, the defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants 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.
(II)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 defendants 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, 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 defendants 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 appropriate in light of their medical condition.
(ii)(I)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.
(II)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 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.
(III)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.
(iii)An order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants 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).
(iv)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.
(v)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 defendants 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.
(vi)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.
(vii)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 defendants appearance or behavior that would affect the defendants 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 defendants rights under this section.
(C)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 capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants 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 defendants interests at the hearing, review the panels final determination following the hearing, advise the defendant of their right to judicial review of the panels 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 defendants 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 defendants 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), antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists 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 judges 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 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 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:
(A)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.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)(i)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(ii)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 defendants maximum term of commitment based on the courts rejection of the certification.
(D)State summary criminal history information.
(E)Jail classification records for the defendants current incarceration.
(F)Arrest reports prepared by the police department or other law enforcement agency.
(G)Court-ordered psychiatric examination or evaluation reports.
(H)The community program directors placement recommendation report.
(I)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.
(J)Medical records, including jail mental health 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 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.
(5)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.
(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 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.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to a State Department of State Hospitals facility 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 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 (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 defendants 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.
(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 defendants 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.
(8)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.
(b)(1)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 defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary.
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 defendants 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 defendants progress toward recovery of mental incompetence and whether the administration of antipsychotic medication is necessary.
If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants 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 defendants 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 defendants 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 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 (2) 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.
(B)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:
(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 countys sheriff that immediate transportation will be needed for the defendant pursuant to subparagraph (A).
(C)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.
(2) The reports made pursuant to paragraph (1) concerning the defendants progress toward attaining competency shall also consider the issue of involuntary medication pursuant to paragraph (3) of subdivision (b) of Section 1369. Each report may include, but not be limited to, all of 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 their physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if the defendant is not treated with antipsychotic medication.
(D)Whether the defendant has a mental disorder 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 defendants 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 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:
(A)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.
(B)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.
(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 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 courts finding of good cause.
(D)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 courts finding of good cause.
(4)If it is determined by the court that treatment for the defendants 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.
(5)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).
(c)(1)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 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 defendants 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.
(2)(A)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 countys sheriff that immediate transportation will be needed for the defendant pursuant to paragraph (1).
(B)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.
(3)Whenever a defendant is returned to the court pursuant to paragraph (1), (1) of this subdivision, subparagraph (C) (D) of paragraph (2) 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 defendants 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 defendants counsel of record of the outcome of the conservatorship proceedings.
(4)(A)If a defendant is returned to court pursuant to paragraph (1), (1) of this subdivision, subparagraph (C) (D) of paragraph (2) 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. Such 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).
(B)If the defendant is found incompetent after the refiling of charges, the defendant may be further committed only for the balance of time remaining pursuant to paragraph (1) of subdivision (c). The maximum term of commitment as specified in paragraph (1) of subdivision (c) applies to the aggregate of all previous commitments.
(5)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.
(6)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants 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 (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.
(e)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).
(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 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.
(h)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.
SEC. 4.Section 1370.1 of the Penal Code is amended to read:1370.1.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent and has been determined by a regional center to have a developmental disability, the trial or judgment shall be suspended until the defendant becomes mentally competent.
(i)Except as provided in clause (ii) or (iii), the court shall consider a recommendation for placement. The recommendation shall be made to the court by the director of a regional center or the directors designee. In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff or other person designated by the court to a state hospital, developmental center, or any other available residential facility approved by the director of a regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code as will promote the defendants speedy attainment of mental competence, or be placed on outpatient status pursuant to the provisions of Section 1370.4 and Title 15 (commencing with Section 1600).
(ii)When the action against a 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 an offense specified in Section 290. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital or other secure treatment facility for the care and treatment of persons with developmental disabilities 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 persons 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 persons with developmental disabilities 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 a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in the defendants state summary criminal history information.
(C)If the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the court shall proceed as provided in subdivision (e).
(D)Upon becoming competent, the court shall order that the defendant be returned to the committing court pursuant to the procedures set forth in paragraph (2) of subdivision (a) of Section 1372 or by another person designated by the court. The court shall further determine conditions under which the person may be absent from the placement for medical treatment, social visits, and other similar activities. Required levels of supervision and security for these activities shall be specified.
(E)The court shall transmit a copy of its order to the regional center director or the directors designee and to the Director of Developmental Services.
(F)A defendant charged with a violent felony may not be placed in a facility or delivered to a state hospital, developmental center, or residential facility pursuant to this subdivision unless the facility, state hospital, developmental center, or residential facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(G)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(H)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1370.4 or 1600, only if the court finds that the placement will not pose a danger to the health or safety of others.
(I)As used in this section, developmental disability has the same meaning as in Section 4512 of the Welfare and Institutions Code.
(2)Prior to making the order directing that the defendant be confined in a state hospital, developmental center, or other residential facility, or be placed on outpatient status, the court shall order the regional center director or the directors designee to evaluate the defendant and to submit to the court, within 15 judicial days of the order, a written recommendation as to whether the defendant should be committed to a state hospital, a developmental center, or to any other available residential facility approved by the regional center director. A person shall not be admitted to a state hospital, developmental center, or other residential facility or accepted for outpatient status under Section 1370.4 without having been evaluated by the regional center director or the directors designee.
(3)If the court orders that the defendant be confined in a state hospital or other secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1), the court shall provide copies of the following documents, which shall be taken with the defendant to the state hospital or other secure treatment facility where the defendant is to be confined:
(A)State summary criminal history information.
(B)Any arrest reports prepared by the police department or other law enforcement agency.
(C)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of an offense specified in Section 290.
(4)When the defendant is committed to a residential facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of a finding of mental incompetence pursuant to this chapter arising out of a charge of an offense specified in Section 290.
(5)(A)If the defendant is committed or transferred to a state hospital or developmental center pursuant to this section, the court may, upon receiving the written recommendation of the executive director of the state hospital or developmental center and the regional center director that the defendant be transferred to a residential facility approved by the regional center director, order the defendant transferred to that facility. If the defendant is committed or transferred to a residential facility approved by the regional center director, the court may, upon receiving the written recommendation of the regional center director, transfer the defendant to a state hospital, a developmental center, or to another residential facility approved by the regional center director.
In the event of dismissal of the criminal action or revocation proceedings before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code.
The defendant or prosecuting attorney may contest either kind of order of transfer by filing a petition with the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the regional center director or designee.
(B)If the defendant is committed to a state hospital or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to another facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to the new facility. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(b)(1)Within 90 days of admission of a person committed pursuant to subdivision (a), the executive director or the directors designee of the state hospital, developmental center, or other facility to which the defendant is committed, shall make a written report to the committing court and the regional center director or a designee concerning the defendants progress toward becoming mentally competent. If the defendant is placed on outpatient status, this report shall be made to the committing court by the regional center director or the directors designee. If the defendant has not become mentally competent, but the report discloses a substantial likelihood the defendant will become mentally competent within the next 90 days, the court may order that the defendant remain in the state hospital, developmental center, or other facility or on outpatient status for that period of time. Within 150 days of an admission made pursuant to subdivision (a), or if the defendant becomes mentally competent, the executive director or the directors designee of the state hospital, developmental center, or other facility to which the defendant is committed shall report to the court and the regional center director or the directors designee regarding the defendants progress toward becoming mentally competent. If the defendant is placed on outpatient status, the regional center director or the directors designee shall make that report to the committing court. The court shall provide copies of all reports under this section to the prosecutor and defense counsel. If the report indicates that there is no substantial likelihood that the defendant has become mentally competent, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c). The court shall transmit a copy of its order to the regional center director or the directors designee and to the executive director of the developmental center.
(2)If it is determined by the court that treatment for the defendants mental impairment is not being conducted, the defendant shall be returned to the committing court. A copy of this order shall be sent to the regional center director or the directors designee and to the executive director of the developmental center.
(3)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination.
(c)(1)(A)At the end of 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 misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, a defendant who has not become mentally competent shall be returned to the committing court.
(B)The court shall notify the regional center director or the directors designee and the executive director of the developmental center of that return and of any resulting court orders.
(2)(A)Except as provided in subparagraph (B), in the event of dismissal of the criminal charges before the defendant becomes mentally competent, the defendant shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), or to commitment and detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code. If it is found that the person is not subject to commitment or detention pursuant to the applicable provision of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code, the individual shall not be subject to further confinement pursuant to this article and the criminal action remains subject to dismissal pursuant to Section 1385. The court shall notify the regional center director and the executive director of the developmental center of any dismissal.
(B)In revocation proceedings alleging a violation of mandatory supervision in which the defendant remains incompetent upon return to court under subparagraph (A), the defendant shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), or to commitment and detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code. If it is found that the person is not subject to commitment or detention pursuant to the applicable provision of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code, the court shall reinstate mandatory supervision and modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant. Actions alleging a violation of mandatory supervision are not subject to dismissal under Section 1385.
(d)Except as provided in subparagraph (B) of paragraph (2) of subdivision (c), the criminal action remains subject to dismissal pursuant to Section 1385. If at any time prior to the maximum period of time allowed for proceedings under this article, the regional center director concludes that the behavior of the defendant related to the defendants criminal offense has been eliminated during time spent in court-ordered programs, the court may, upon recommendation of the regional center director, dismiss the criminal charges. The court shall transmit a copy of any order of dismissal to the regional center director and to the executive director of the developmental center.
(e)If a defendant is returned to court pursuant to subparagraph (C) of paragraph (1) of subdivision (a), paragraph (1) of subdivision (b), or subparagraph (A) of paragraph (1) of subdivision (c), 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. Such 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 proceed as provided in subdivision (c).
(f)If the defendant is found incompetent after the refiling of charges, the defendant may be further committed only for the balance of time remaining pursuant to subparagraph (A) of paragraph (1) of subdivision (c). The maximum term of commitment as specified in subparagraph (A) of paragraph (1) of subdivision (c) applies to the aggregate of all previous commitments.
(f)(g)For the purpose of this section, secure treatment facility does not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, a facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or a community board and care facility.
SEC. 5.Section 4361 of the Welfare and Institutions Code is amended to read:4361.(a)As used in this section, department means the State Department of State Hospitals.
(b)The purpose of this chapter is to, subject to appropriation by the Legislature, promote the diversion of individuals with serious mental disorders as prescribed in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, and to assist counties in providing diversion for individuals with serious mental illnesses who have been found incompetent to stand trial and committed to the department for restoration of competency. In implementing this chapter, the department shall consider local discretion and flexibility in diversion activities that meet the communitys needs and provide for the safe and effective treatment of individuals with serious mental disorders across a continuum of care.
(c)(1)Subject to appropriation by the Legislature, the department may solicit proposals from, and may contract with, a county to help fund the development or expansion of pretrial diversion described in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, for the population described in subdivision (b) and that meets all of the following criteria:
(A)Participants are individuals diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, and schizoaffective disorder, but excluding a primary diagnosis of antisocial personality disorder, borderline personality disorder, and pedophilia, and who are presenting non-substance-induced psychotic symptoms, who have been found incompetent to stand trial pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code.
(B)There is a significant relationship between the individuals serious mental disorder and the charged offense, or between the individuals conditions of homelessness and the charged offense.
(C)The individual does not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18 of the Penal Code, if treated in the community.
(2)A county submitting a proposal for funding under this chapter shall designate a lead entity to apply for the funds. This lead entity shall show in its proposal that it has support from other county entities or other relevant entities, including courts, that are necessary to provide successful diversion of individuals under the contract.
(d)When evaluating proposals from the county, the department, in consultation with the Council on Criminal Justice and Behavioral Health within the Department of Corrections and Rehabilitation, shall prioritize proposals that demonstrate all of the following:
(1)Provision of clinically appropriate or evidence-based mental health treatment and wraparound services across a continuum of care, as appropriate, to meet the individual needs of the diversion participant. For purposes of this section, wraparound services means services provided in addition to the mental health treatment necessary to meet the individuals needs for successfully managing the individuals mental health symptoms and to successfully live in the community. Wraparound services provided by the diversion program shall include appropriate housing, intensive case management, and substance use disorder treatment, and may include, without limitation, forensic assertive community treatment teams, crisis residential services, criminal justice coordination, peer support, and vocational support.
(2)Collaboration between community stakeholders and other partner government agencies in the diversion of individuals with serious mental disorders.
(3)Connection of individuals to services in the community after they have completed diversion as provided in this chapter.
(e)The department may also provide funding in the contract with the county, subject to appropriation by the Legislature, to cover the cost of providing postbooking assessment of defendants who are likely to be found incompetent to stand trial on felony charges to determine whether the defendant would benefit from diversion as included in the contract.
(f)The department may also provide funding in the contract with the county, subject to appropriation by the Legislature, to cover the cost of in-jail treatment prior to the placement in the community for up to an average of 15 days for defendants who have been approved by the court for diversion as included in the contract.
(g)A county contracted pursuant to this chapter shall report data and outcomes to the department, within 30 days after the end of each quarter, regarding those individuals targeted by the contract and in the program. This subdivision does not preclude the department from specifying reporting formats or from modifying, reducing, or adding data elements or outcome measures from a contracting county, as needed to provide for reporting of effective data and outcome measures. Notwithstanding any other law, but only to the extent not prohibited by federal law, the county shall provide specific patient information to the department for reporting purposes. The patient information is confidential and is not open to public inspection. A contracting county shall, at a minimum, report all of the following:
(1)The number of individuals that the court ordered to postbooking diversion and the length of time for which the defendant has been ordered to diversion.
(2)The number of individuals participating in diversion.
(3)The name, social security number, criminal identification and information (CII) number, date of birth, and demographics of each individual participating in the program. This information is confidential and is not open to public inspection.
(4)The length of time in diversion for each participating individual. This information is confidential and is not open to public inspection.
(5)The types of services and supports provided to each individual participating in diversion. This information is confidential and is not open to public inspection.
(6)The number of days each individual was in jail prior to placement in diversion. This information is confidential and is not open to public inspection.
(7)The number of days that each individual spent in each level of care facility. This information is confidential and is not open to public inspection.
(8)The diagnoses of each individual participating in diversion. This information is confidential and is not open to public inspection.
(9)The nature and felony or misdemeanor classification of the charges for each individual participating in diversion. This information is confidential and is not open to public inspection.
(10)The number of individuals who completed diversion.
(11)The name, social security number, CII number, and birth date of each individual who did not complete diversion and the reasons for not completing. This information is confidential and is not open to public inspection.
(h)Contracts awarded pursuant to this chapter are exempt from the requirements contained in the Public Contract Code and the State Administrative Manual and are not subject to approval by the Department of General Services.
(i)The funds shall not be used to supplant existing services or services reimbursable from an available source but rather to expand upon them or support new services for which existing reimbursement may be limited.
(j)(1)Beginning July 1, 2021, subject to appropriation by the Legislature, the department may amend contracts with a county to fund the expansion of an existing department-funded pretrial diversion as described in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, for the population described in subdivision (b) and that meets both of the following criteria:
(A)All participants identified for potential diversion are found incompetent to stand trial on a felony charge.
(B)Participants diverted through a program expansion suffer from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, excluding antisocial personality disorder, borderline personality disorder, and pedophilia.
(2)Counties expanding their programs under this section will not be required to meet any additional match funding requirements.
(k)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the state hospitals and the department may implement, interpret, or make specific this section by means of a departmental letter or other similar instruction, as necessary.
(l)The department shall have access to the arrest records and state summary of criminal history of defendants who are participating or have participated in the diversion program. The information may be used solely for the purpose of looking at the recidivism rate for those patients.
(m)If the defendant is committed directly to a county program in lieu of commitment to the department, counties shall provide the minute order from the court documenting the incompetent to stand trial finding on a felony charge and the original alienist evaluation associated with that finding.
(n)For department-funded diversion programs funded through appropriations made by the Budget Act of 2018 or new county programs funded through the Budget Act of 2021, participants in those county programs may include individuals diagnosed with schizophrenia, schizoaffective disorder, or bipolar disorder, who are likely to be found incompetent to stand trial for felony charges, pursuant to Section 1368 of the Penal Code, or who have been found incompetent to stand trial pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code, until new funds are dispersed to the county. Counties shall continue to comply with all terms of the contract signed with the department, including matching fund and data reporting requirements.
(a)On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).
(b)A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:
(1)The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendants mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendants medical records, arrest reports, or any other relevant evidence.
(2)The defendants mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendants mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendants involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendants mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
(c)For any defendant who satisfies the eligibility requirements in subdivision (b), the court must consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met:
(1)In the opinion of a qualified mental health expert, the defendants symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.
(2)The defendant consents to diversion and waives the defendants right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendants mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendants right to a speedy trial.
(3)The defendant agrees to comply with treatment as a condition of diversion, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendants mental incompetence, cannot agree to comply with treatment.
(4)The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendants treatment plan, the defendants violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(d)A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1)Murder or voluntary manslaughter.
(2)An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3)Rape.
(4)Lewd or lascivious act on a child under 14 years of age.
(5)Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(6)Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(7)Continuous sexual abuse of a child, in violation of Section 288.5.
(8)A violation of subdivision (b) or (c) of Section 11418.
(e)At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.
(f)As used in this chapter, the following terms have the following meanings:
(1)Pretrial diversion means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
(A)(i)The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
(ii)The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
(iii)If the court refers the defendant to a county mental health agency pursuant to this section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.
(B)The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendants progress in treatment.
(C)The period during which criminal proceedings against the defendant may be diverted is limited as follows:
(i)If the defendant is charged with a felony, the period shall be no longer than two years.
(ii)If the defendant is charged with a misdemeanor, the period shall be no longer than one year.
(D)Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendants inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(2)Qualified mental health expert includes, but is not limited to, a psychiatrist, psychologist, a person described in Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert.
(g)If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment 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:
(1)The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendants propensity for violence.
(2)The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3)The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4)Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A)The defendant is performing unsatisfactorily in the assigned program.
(B)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. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
(h)If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendants criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendants mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendants prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).
(i)A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendants application for or participation in diversion, shall not, without the defendants consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(j)The defendant shall be advised that, regardless of the defendants completion of diversion, both of the following apply:
(1)The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2)An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agencys ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(k)A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendants treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendants eligibility for diversion under this section may not be used in any other proceeding without the defendants consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(l)The county agency administering the diversion, the defendants mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendants medical and psychological records, including progress reports, during the defendants time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.
SEC. 2.Section 1369 of the Penal Code is amended to read:1369.A trial by court or jury of the question of mental competence shall proceed in the following order:
(a)(1)If the court is presented with substantial evidence that the defendant is incompetent to stand trial, the court shall suspend the criminal proceedings and shall appoint at least one mental health expert to examine the defendants mental condition. If counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two mental health experts upon request of defense counsel, in which case one shall be named by the defense and one by the prosecution.
(2)If it is suspected the defendant has a developmental disability, the court shall appoint the director of the regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the directors designee, to examine the defendant to determine whether the defendant has a developmental disability. The regional center director or their designee shall determine whether the defendant has a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, and is therefore eligible for regional center services and supports. The regional center director or their designee shall provide the court with a written report informing the court of this determination.
(b)(1)A mental health expert shall evaluate the defendant and submit a written report to the court. The report shall include the opinion of the expert regarding all of the following matters:
(A)A diagnosis of the defendants mental condition, if any.
(B)Whether the defendant, as a result of a mental disorder or developmental disability, is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.
(C)Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future.
(D)If requested by the defense, an opinion as to whether the defendant is eligible for mental health diversion pursuant to Section 1001.36.
(2)Any statements made by the defendant during an examination pursuant to this section shall not be admissible in any other proceeding. This paragraph is intended to codify the holding of the United States Supreme Court in Estelle v. Smith (451 U.S. 454), and is therefore declarative of existing law.
(3)(A)The examining mental health expert shall evaluate whether treatment with antipsychotic medication, as defined in subdivision (l) of Section 5008 of the Welfare and Institutions Code, is appropriate for the defendant. The evaluation of whether treatment with antipsychotic medication is appropriate shall be done in accordance with subparagraphs (B) and (C). The examining licensed psychologists or psychiatrists shall also opine whether the defendant lacks the capacity to make decisions regarding antipsychotic medication, as outlined in subclauses (I) and (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(B)If a licensed psychologist examines the defendant and opines that treatment with antipsychotic medication may be appropriate, their opinion shall be based on whether the defendant has a mental disorder that is typically known to benefit from that treatment. A licensed psychologists opinion shall not exceed the scope of their license. That opinion about the potential benefit of antipsychotic medication is not a prescription for that medication.
(C)If a psychiatrist examines the defendant and opines that treatment with antipsychotic medication is appropriate, the psychiatrist shall inform the court of their opinion as to the likely or potential side effects of the medication, the expected efficacy of the medication, and possible alternative treatments, as outlined in subclause (III) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(4)The report of the mental health expert prepared pursuant to this subdivision shall be completed and filed with the court within 30 days after the order, unless waived by the defendant or unless the court finds good cause for an extension.
(c)(1)If neither party objects to any competency report, the court may determine the competency of the defendant based on any competency report.
(2)If either party objects to any competency report and requests a hearing, the court shall hold a hearing to determine competence.
(3)In a hearing to determine competence, the defendant is presumed competent to stand trial unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
(4)If the defendant waives the right to a jury trial or as provided in paragraph (5), the hearing shall be heard by the court. Otherwise, a determination of the defendants competency to stand trial shall be decided by a jury. The verdict of the jury shall be unanimous.
(5)In a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole, the hearing shall be heard by the court.
(d)(1)The State Department of State Hospitals, on or before July 1, 2017, shall adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court pursuant to this section. To develop these guidelines, the State Department of State Hospitals shall convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders.
(2)When making an appointment pursuant to this section, the court shall appoint an expert who meets the guidelines established in accordance with this subdivision or an expert with equivalent experience and skills. If there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills, the court may appoint an expert who does not meet the guidelines.
(e)As used in this section, mental health expert means a licensed psychologist or psychiatrist. However, this section does not preclude the court from appointing any other qualified expert to evaluate the defendants mental condition in addition to a licensed psychologist or psychiatrist.
SEC. 3.Section 1370 of the Penal Code is amended to read:1370.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent 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:
(i)Determine whether restoring the person to mental competence is in the interests of justice.
(I)InIn exercising its discretion pursuant to this clause, the court shall consider the relevant circumstances of the charged offense, the defendants mental health condition and history of treatment, whether the defendant is likely to face incarceration if convicted, the likely length of any term of incarceration, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations.
(II)There is a rebuttable presumption that restoration to mental competence is not in the interests of justice if a defendant charged with either a violation of Section 211, a violation of paragraph (1) or (4) of subdivision (a) of Section 245, any felony punishable pursuant to subdivision (h) of Section 1170, or any offense that may be charged as either a felony or a misdemeanor. This presumption may be overcome by evidence that persuades the court that restoration to mental competence is in the interests of justice.(ii)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).
(iii)If restoring the person to mental competence is not in the interests of justice, the court may do either of the following:
(I)Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to Section 1001.36 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.
(ia)If the court opts to conduct a hearing pursuant to this subclause, 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.
(ib)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.
(ic)If the court finds the defendant ineligible for diversion based on the circumstances set forth in subdivision (b) or (d) of Section 1001.36, or if diversion is terminated unsuccessfully, 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:
(Ia)Order modification of the treatment plan in accordance with a recommendation from the treatment provider.
(Ib)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 date of the referral. 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.
(Ic)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 subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institution 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 directors 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 60 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 establishment of either a temporary or permanent conservatorship, the charges shall be dismissed pursuant to Section 1385.
(II)Dismiss the charges pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the county behavioral health director or the directors designee.
(C)If the defendant is found mentally incompetent, and restoring the defendant to competence is in the interests of justice or the defendant is 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.
(i)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 defendants 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 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.
(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 persons 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.
(iv) (I)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.
(II)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.
(v)If a defendant is found by the court to be an appropriate candidate for diversion pursuant to clause (iv), the defendants 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 two years. If, during that period, the court determines that criminal proceedings should be reinstated pursuant to subdivision (d) 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 defendants competence to stand trial.
(vi)Upon the dismissal of charges at the conclusion of the period of diversion, pursuant to subdivision (e) of Section 1001.36, a defendant shall no longer be deemed incompetent to stand trial pursuant to this section.
(vii)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 (ii) or (iii) for inclusion in the defendants state summary criminal history information.
(D)If at any time after the finding of mental incompetence, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the court shall proceed pursuant to paragraph (2) of subdivision (c).
(E)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.
(F)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.
(G)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(H)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.
(I)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 defendants psychiatric symptoms have changed to such a degree as to create a doubt in the mind of the judge as to the defendants 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 regained 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.
(J)(i)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:
(I)The defendant has attained competence.
(II)There is no substantial likelihood that the defendant will attain competence in the foreseeable future.
(III)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.
(ii)If, in the opinion of the departments 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.
(iii)If, in the opinion of the departments 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 (2) of subdivision (c) no later than 10 days following receipt of the report.
(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) (i)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.
(ii)Commencing on July 1, 2023, 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.
(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 (b) 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)Based upon the opinion of the psychiatrist or licensed psychologist offered to the court pursuant to subdivision (b) of Section 1369, the defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants 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.
(II)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 defendants 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, and 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 defendants 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 appropriate in light of their medical condition.
(ii)(I)If the court finds the conditions described in subclause (I) or (II) of clause (i) to be true, and if 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.
(II)If the court finds the conditions described in subclause (I) or (II) of clause (i) to be true, and if if, pursuant to the opinion offered to the court pursuant to 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.
(III)If the court finds the conditions described in subclause (III) of clause (i) to be true, and if 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.
(iii)An order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants 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).
(iv)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.
(v)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 defendants 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.
(vi)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.
(vii)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 defendants appearance or behavior that would affect the defendants 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 defendants rights under this section.
(C)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 capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants 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 defendants interests at the hearing, review the panels final determination following the hearing, advise the defendant of their right to judicial review of the panels 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 defendants 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 defendants 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), antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists 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 judges 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 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 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:
(A)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.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)(i)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(ii)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 defendants maximum term of commitment based on the courts rejection of the certification.
(D)State summary criminal history information.
(E)Jail classification records for the defendants current incarceration.
(F)Arrest reports prepared by the police department or other law enforcement agency.
(G)Court-ordered psychiatric examination or evaluation reports.
(H)The community program directors placement recommendation report.
(I)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.
(J)Medical records, including jail mental health 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 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.
(5)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.
(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 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.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to a State Department of State Hospitals facility 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 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 (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 defendants 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.
(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 defendants 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.
(8)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.
(b)(1)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 defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary.
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 defendants progress toward recovery of mental incompetence 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 defendants progress toward recovery of mental incompetence and whether the administration of antipsychotic medication is necessary.
If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants 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 defendants 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 defendants 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 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 (2) 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.
(B)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:
(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 countys sheriff that immediate transportation will be needed for the defendant pursuant to subparagraph (A).
(C)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.
(2) The reports made pursuant to paragraph (1) concerning the defendants progress toward attaining competency shall also consider the issue of involuntary medication pursuant to paragraph (3) of subdivision (b) of Section 1369. Each report may include, but not be limited to, all of 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 their physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if the defendant is not treated with antipsychotic medication.
(D)Whether the defendant has a mental disorder 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 defendants 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 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:
(A)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.
(B)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.
(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 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 courts finding of good cause.
(D)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 courts finding of good cause.
(4)If it is determined by the court that treatment for the defendants 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.
(5)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).
(c)(1)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 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 defendants 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.
(2)(A)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 countys sheriff that immediate transportation will be needed for the defendant pursuant to paragraph (1).
(B)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.
(3)Whenever a defendant is returned to the court pursuant to paragraph (1), subparagraph (C) of paragraph (2) 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 defendants 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 defendants counsel of record of the outcome of the conservatorship proceedings.
(4)If a defendant is returned to court pursuant to paragraph (1), subparagraph (C) of paragraph (2) 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. Such 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).
(5)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.
(6)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants 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 (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.
(e)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).
(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 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.
(h)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.
SEC. 4.Section 1370.1 of the Penal Code is amended to read:1370.1.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent and has been determined by a regional center to have a developmental disability, the trial or judgment shall be suspended until the defendant becomes mentally competent.
(i)Except as provided in clause (ii) or (iii), the court shall consider a recommendation for placement. The recommendation shall be made to the court by the director of a regional center or the directors designee. In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff or other person designated by the court to a state hospital, developmental center, or any other available residential facility approved by the director of a regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code as will promote the defendants speedy attainment of mental competence, or be placed on outpatient status pursuant to the provisions of Section 1370.4 and Title 15 (commencing with Section 1600).
(ii)When the action against a 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 an offense specified in Section 290. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital or other secure treatment facility for the care and treatment of persons with developmental disabilities 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 persons 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 persons with developmental disabilities 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 a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in the defendants state summary criminal history information.
(C)If the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the court shall proceed as provided in subdivision (e).
(D)Upon becoming competent, the court shall order that the defendant be returned to the committing court pursuant to the procedures set forth in paragraph (2) of subdivision (a) of Section 1372 or by another person designated by the court. The court shall further determine conditions under which the person may be absent from the placement for medical treatment, social visits, and other similar activities. Required levels of supervision and security for these activities shall be specified.
(E)The court shall transmit a copy of its order to the regional center director or the directors designee and to the Director of Developmental Services.
(F)A defendant charged with a violent felony may not be placed in a facility or delivered to a state hospital, developmental center, or residential facility pursuant to this subdivision unless the facility, state hospital, developmental center, or residential facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(G)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(H)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1370.4 or 1600, only if the court finds that the placement will not pose a danger to the health or safety of others.
(I)As used in this section, developmental disability has the same meaning as in Section 4512 of the Welfare and Institutions Code.
(2)Prior to making the order directing that the defendant be confined in a state hospital, developmental center, or other residential facility, or be placed on outpatient status, the court shall order the regional center director or the directors designee to evaluate the defendant and to submit to the court, within 15 judicial days of the order, a written recommendation as to whether the defendant should be committed to a state hospital, a developmental center, or to any other available residential facility approved by the regional center director. A person shall not be admitted to a state hospital, developmental center, or other residential facility or accepted for outpatient status under Section 1370.4 without having been evaluated by the regional center director or the directors designee.
(3)If the court orders that the defendant be confined in a state hospital or other secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1), the court shall provide copies of the following documents, which shall be taken with the defendant to the state hospital or other secure treatment facility where the defendant is to be confined:
(A)State summary criminal history information.
(B)Any arrest reports prepared by the police department or other law enforcement agency.
(C)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of an offense specified in Section 290.
(4)When the defendant is committed to a residential facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of a finding of mental incompetence pursuant to this chapter arising out of a charge of an offense specified in Section 290.
(5)(A)If the defendant is committed or transferred to a state hospital or developmental center pursuant to this section, the court may, upon receiving the written recommendation of the executive director of the state hospital or developmental center and the regional center director that the defendant be transferred to a residential facility approved by the regional center director, order the defendant transferred to that facility. If the defendant is committed or transferred to a residential facility approved by the regional center director, the court may, upon receiving the written recommendation of the regional center director, transfer the defendant to a state hospital, a developmental center, or to another residential facility approved by the regional center director.
In the event of dismissal of the criminal action or revocation proceedings before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code.
The defendant or prosecuting attorney may contest either kind of order of transfer by filing a petition with the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the regional center director or designee.
(B)If the defendant is committed to a state hospital or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to another facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to the new facility. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(b)(1)Within 90 days of admission of a person committed pursuant to subdivision (a), the executive director or the directors designee of the state hospital, developmental center, or other facility to which the defendant is committed, shall make a written report to the committing court and the regional center director or a designee concerning the defendants progress toward becoming mentally competent. If the defendant is placed on outpatient status, this report shall be made to the committing court by the regional center director or the directors designee. If the defendant has not become mentally competent, but the report discloses a substantial likelihood the defendant will become mentally competent within the next 90 days, the court may order that the defendant remain in the state hospital, developmental center, or other facility or on outpatient status for that period of time. Within 150 days of an admission made pursuant to subdivision (a), or if the defendant becomes mentally competent, the executive director or the directors designee of the state hospital, developmental center, or other facility to which the defendant is committed shall report to the court and the regional center director or the directors designee regarding the defendants progress toward becoming mentally competent. If the defendant is placed on outpatient status, the regional center director or the directors designee shall make that report to the committing court. The court shall provide copies of all reports under this section to the prosecutor and defense counsel. If the report indicates that there is no substantial likelihood that the defendant has become mentally competent, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c). The court shall transmit a copy of its order to the regional center director or the directors designee and to the executive director of the developmental center.
(2)If it is determined by the court that treatment for the defendants mental impairment is not being conducted, the defendant shall be returned to the committing court. A copy of this order shall be sent to the regional center director or the directors designee and to the executive director of the developmental center.
(3)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination.
(c)(1)(A)At the end of 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 misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, a defendant who has not become mentally competent shall be returned to the committing court.
(B)The court shall notify the regional center director or the directors designee and the executive director of the developmental center of that return and of any resulting court orders.
(2)(A)Except as provided in subparagraph (B), in the event of dismissal of the criminal charges before the defendant becomes mentally competent, the defendant shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), or to commitment and detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code. If it is found that the person is not subject to commitment or detention pursuant to the applicable provision of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code, the individual shall not be subject to further confinement pursuant to this article and the criminal action remains subject to dismissal pursuant to Section 1385. The court shall notify the regional center director and the executive director of the developmental center of any dismissal.
(B)In revocation proceedings alleging a violation of mandatory supervision in which the defendant remains incompetent upon return to court under subparagraph (A), the defendant shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), or to commitment and detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code. If it is found that the person is not subject to commitment or detention pursuant to the applicable provision of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code, the court shall reinstate mandatory supervision and modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant. Actions alleging a violation of mandatory supervision are not subject to dismissal under Section 1385.
(d)Except as provided in subparagraph (B) of paragraph (2) of subdivision (c), the criminal action remains subject to dismissal pursuant to Section 1385. If at any time prior to the maximum period of time allowed for proceedings under this article, the regional center director concludes that the behavior of the defendant related to the defendants criminal offense has been eliminated during time spent in court-ordered programs, the court may, upon recommendation of the regional center director, dismiss the criminal charges. The court shall transmit a copy of any order of dismissal to the regional center director and to the executive director of the developmental center.
(e)If a defendant is returned to court pursuant to subparagraph (C) of paragraph (1) of subdivision (a), paragraph (1) of subdivision (b), or subparagraph (A) of paragraph (1) of subdivision (c), 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. Such 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 proceed as provided in subdivision (c).
(f)For the purpose of this section, secure treatment facility does not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, a facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or a community board and care facility.
SEC. 5.Section 4361 of the Welfare and Institutions Code is amended to read:4361.(a)As used in this section, department means the State Department of State Hospitals.
(b)The purpose of this chapter is to, subject to appropriation by the Legislature, promote the diversion of individuals with serious mental disorders as prescribed in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, and to assist counties in providing diversion for individuals with serious mental illnesses who have been found incompetent to stand trial and committed to the department for restoration of competency. In implementing this chapter, the department shall consider local discretion and flexibility in diversion activities that meet the communitys needs and provide for the safe and effective treatment of individuals with serious mental disorders across a continuum of care.
(c)(1)Subject to appropriation by the Legislature, the department may solicit proposals from, and may contract with, a county to help fund the development or expansion of pretrial diversion described in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, for the population described in subdivision (b) and that meets all of the following criteria:
(A)Participants are individuals diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, and schizoaffective disorder, but excluding a primary diagnosis of antisocial personality disorder, borderline personality disorder, and pedophilia, and who are presenting non-substance-induced psychotic symptoms, who have been found incompetent to stand trial pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code.
(B)There is a significant relationship between the individuals serious mental disorder and the charged offense, or between the individuals conditions of homelessness and the charged offense.
(C)The individual does not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18 of the Penal Code, if treated in the community.
(2)A county submitting a proposal for funding under this chapter shall designate a lead entity to apply for the funds. This lead entity shall show in its proposal that it has support from other county entities or other relevant entities, including courts, that are necessary to provide successful diversion of individuals under the contract.
(d)When evaluating proposals from the county, the department, in consultation with the Council on Criminal Justice and Behavioral Health within the Department of Corrections and Rehabilitation, shall prioritize proposals that demonstrate all of the following:
(1)Provision of clinically appropriate or evidence-based mental health treatment and wraparound services across a continuum of care, as appropriate, to meet the individual needs of the diversion participant. For purposes of this section, wraparound services means services provided in addition to the mental health treatment necessary to meet the individuals needs for successfully managing the individuals mental health symptoms and to successfully live in the community. Wraparound services provided by the diversion program shall include appropriate housing, intensive case management, and substance use disorder treatment, and may include, without limitation, forensic assertive community treatment teams, crisis residential services, criminal justice coordination, peer support, and vocational support.
(2)Collaboration between community stakeholders and other partner government agencies in the diversion of individuals with serious mental disorders.
(3)Connection of individuals to services in the community after they have completed diversion as provided in this chapter.
(e)The department may also provide funding in the contract with the county, subject to appropriation by the Legislature, to cover the cost of providing postbooking assessment of defendants who are likely to be found incompetent to stand trial on felony charges to determine whether the defendant would benefit from diversion as included in the contract.
(f)The department may also provide funding in the contract with the county, subject to appropriation by the Legislature, to cover the cost of in-jail treatment prior to the placement in the community for up to an average of 15 days for defendants who have been approved by the court for diversion as included in the contract.
(g)A county contracted pursuant to this chapter shall report data and outcomes to the department, within 30 days after the end of each quarter, regarding those individuals targeted by the contract and in the program. This subdivision does not preclude the department from specifying reporting formats or from modifying, reducing, or adding data elements or outcome measures from a contracting county, as needed to provide for reporting of effective data and outcome measures. Notwithstanding any other law, but only to the extent not prohibited by federal law, the county shall provide specific patient information to the department for reporting purposes. The patient information is confidential and is not open to public inspection. A contracting county shall, at a minimum, report all of the following:
(1)The number of individuals that the court ordered to postbooking diversion and the length of time for which the defendant has been ordered to diversion.
(2)The number of individuals participating in diversion.
(3)The name, social security number, criminal identification and information (CII) number, date of birth, and demographics of each individual participating in the program. This information is confidential and is not open to public inspection.
(4)The length of time in diversion for each participating individual. This information is confidential and is not open to public inspection.
(5)The types of services and supports provided to each individual participating in diversion. This information is confidential and is not open to public inspection.
(6)The number of days each individual was in jail prior to placement in diversion. This information is confidential and is not open to public inspection.
(7)The number of days that each individual spent in each level of care facility. This information is confidential and is not open to public inspection.
(8)The diagnoses of each individual participating in diversion. This information is confidential and is not open to public inspection.
(9)The nature and felony or misdemeanor classification of the charges for each individual participating in diversion. This information is confidential and is not open to public inspection.
(10)The number of individuals who completed diversion.
(11)The name, social security number, CII number, and birth date of each individual who did not complete diversion and the reasons for not completing. This information is confidential and is not open to public inspection.
(h)Contracts awarded pursuant to this chapter are exempt from the requirements contained in the Public Contract Code and the State Administrative Manual and are not subject to approval by the Department of General Services.
(i)The funds shall not be used to supplant existing services or services reimbursable from an available source but rather to expand upon them or support new services for which existing reimbursement may be limited.
(j)(1)Beginning July 1, 2021, subject to appropriation by the Legislature, the department may amend contracts with a county to fund the expansion of an existing department-funded pretrial diversion as described in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, for the population described in subdivision (b) and that meets both of the following criteria:
(A)All participants identified for potential diversion are found incompetent to stand trial on a felony charge.
(B)Participants diverted through a program expansion suffer from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, excluding antisocial personality disorder, borderline personality disorder, and pedophilia.
(2)Counties expanding their programs under this section will not be required to meet any additional match funding requirements.
(k)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the state hospitals and the department may implement, interpret, or make specific this section by means of a departmental letter or other similar instruction, as necessary.
(l)The department shall have access to the arrest records and state summary of criminal history of defendants who are participating or have participated in the diversion program. The information may be used solely for the purpose of looking at the recidivism rate for those patients.
(m)If the defendant is committed directly to a county program in lieu of commitment to the department, counties shall provide the minute order from the court documenting the incompetent to stand trial finding on a felony charge and the original alienist evaluation associated with that finding.
(n)For department-funded diversion programs funded through appropriations made by the Budget Act of 2018 or new county programs funded through the Budget Act of 2021, participants in those county programs may include individuals diagnosed with schizophrenia, schizoaffective disorder, or bipolar disorder, who are likely to be found incompetent to stand trial for felony charges, pursuant to Section 1368 of the Penal Code, or who have been found incompetent to stand trial pursuant to clause (iv) of subparagraph (C) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code, until new funds are dispersed to the county. Counties shall continue to comply with all terms of the contract signed with the department, including matching fund and data reporting requirements.
(a)On an accusatory pleading alleging the commission of a misdemeanor or felony offense not set forth in subdivision (d), the court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).
(b)A defendant is eligible for pretrial diversion pursuant to this section if both of the following criteria are met:
(1)The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendants mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendants medical records, arrest reports, or any other relevant evidence.
(2)The defendants mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendants mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendants involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendants mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense.
(c)For any defendant who satisfies the eligibility requirements in subdivision (b), the court must consider whether the defendant is suitable for pretrial diversion. A defendant is suitable for pretrial diversion if all of the following criteria are met:
(1)In the opinion of a qualified mental health expert, the defendants symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment.
(2)The defendant consents to diversion and waives the defendants right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) (C) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendants mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of the defendants right to a speedy trial.
(3)The defendant agrees to comply with treatment as a condition of diversion, unless the defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of competency treatment pursuant to clause (iv) of subparagraph (B) (C) of paragraph (1) of subdivision (a) of Section 1370 and, as a result of the defendants mental incompetence, cannot agree to comply with treatment.
(4)The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendants treatment plan, the defendants violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.
(d)A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:
(1)Murder or voluntary manslaughter.
(2)An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3)Rape.
(4)Lewd or lascivious act on a child under 14 years of age.
(5)Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.
(6)Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.
(7)Continuous sexual abuse of a child, in violation of Section 288.5.
(8)A violation of subdivision (b) or (c) of Section 11418.
(e)At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion. The hearing on the prima facie showing shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.
(f)As used in this chapter, the following terms have the following meanings:
(1)Pretrial diversion means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
(A)(i)The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
(ii)The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
(iii)If the court refers the defendant to a county mental health agency pursuant to this section and the agency determines that it is unable to provide services to the defendant, the court shall accept a written declaration to that effect from the agency in lieu of requiring live testimony. That declaration shall serve only to establish that the program is unable to provide services to the defendant at that time and does not constitute evidence that the defendant is unqualified or unsuitable for diversion under this section.
(B)The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendants progress in treatment.
(C)The period during which criminal proceedings against the defendant may be diverted is limited as follows:
(i)If the defendant is charged with a felony, the period shall be no longer than two years.
(ii)If the defendant is charged with a misdemeanor, the period shall be no longer than one year.
(D)Upon request, the court shall conduct a hearing to determine whether restitution, as defined in subdivision (f) of Section 1202.4, is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion. However, a defendants inability to pay restitution due to indigence or mental disorder shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.
(2)Qualified mental health expert includes, but is not limited to, a psychiatrist, psychologist, a person described in Section 5751.2 of the Welfare and Institutions Code, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert.
(g)If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment 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:
(1)The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendants propensity for violence.
(2)The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
(3)The defendant is engaged in criminal conduct rendering the defendant unsuitable for diversion.
(4)Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
(A)The defendant is performing unsatisfactorily in the assigned program.
(B)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. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.
(h)If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendants criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendants mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (j) and (k). The defendant who successfully completes diversion may indicate in response to any question concerning the defendants prior criminal record that the defendant was not arrested or diverted for the offense, except as specified in subdivision (j).
(i)A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendants application for or participation in diversion, shall not, without the defendants consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(j)The defendant shall be advised that, regardless of the defendants completion of diversion, both of the following apply:
(1)The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (i), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(2)An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agencys ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
(k)A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendants treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendants eligibility for diversion under this section may not be used in any other proceeding without the defendants consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.
(l)The county agency administering the diversion, the defendants mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendants medical and psychological records, including progress reports, during the defendants time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.
SEC. 2.Section 1369 of the Penal Code is amended to read:1369.Except as stated in subdivision (g), a A trial by court or jury of the question of mental competence shall proceed in the following order:
(a)(1)The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. If the defendant or the defendants counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution.(a)(1)If the court is presented with substantial evidence that the defendant is incompetent to stand trial, the court shall suspend the criminal proceedings and shall appoint at least one mental health expert to examine the defendants mental condition. If counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two mental health experts upon request of defense counsel, in which case one shall be named by the defense and one by the prosecution.
(2)If it is suspected the defendant has a developmental disability, the court shall appoint the director of the regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the directors designee, to examine the defendant to determine whether the defendant has a developmental disability. The regional center director or their designee shall determine whether the defendant has a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, and is therefore eligible for regional center services and supports. The regional center director or their designee shall provide the court with a written report informing the court of this determination.
(b)(1)A mental health expert shall evaluate the defendant and submit a written report to the court. The report shall include the opinion of the expert regarding all of the following matters:
(A)A diagnosis of the defendants mental condition, if any.
(B)Whether the defendant, as a result of a mental disorder or developmental disability, is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.
(C)Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future.
(D)If requested by the defense, an opinion as to whether the defendant is eligible for mental health diversion pursuant to Section 1001.36.
(2)Any statements made by the defendant during an examination pursuant to this section shall not be admissible in any other proceeding. This paragraph is intended to codify the holding of the United States Supreme Court in Estelle v. Smith (451 U.S. 454), and is therefore declarative of existing law.
(2)(3)(A)The examining licensed psychologists or psychiatrists shall evaluate the nature of the defendants mental disorder, if any, the defendants ability or inability to understand the nature of the criminal proceedings or the defendants ability to assist counsel in the conduct of a defense in a rational manner as a result of a mental disorder, and mental health expert shall evaluate whether treatment with antipsychotic medication, as defined in subdivision (l ) (l) of Section 5008 of the Welfare and Institutions Code, is appropriate for the defendant. The evaluation of whether treatment with antipsychotic medication is appropriate shall be done in accordance with subparagraphs (B) and (C). The examining licensed psychologists or psychiatrists shall also opine whether the defendant lacks the capacity to make decisions regarding antipsychotic medication, as outlined in subclauses (I) and (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(B)If a licensed psychologist examines the defendant and opines that treatment with antipsychotic medication may be appropriate, their opinion shall be based on whether the defendant has a mental disorder that is typically known to benefit from that treatment. A licensed psychologists opinion shall not exceed the scope of their license. That opinion about the potential benefit of antipsychotic medication is not a prescription for that medication.
(C)If a psychiatrist examines the defendant and opines that treatment with antipsychotic medication is appropriate, the psychiatrist shall inform the court of their opinion as to the likely or potential side effects of the medication, the expected efficacy of the medication, and possible alternative treatments, as outlined in subclause (III) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(3)If it is suspected the defendant has a developmental disability, the court shall appoint the director of the regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the directors designee, to examine the defendant to determine whether the defendant has a developmental disability. The regional center director or their designee shall determine whether the defendant has a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, and is therefore eligible for regional center services and supports. The regional center director or their designee shall provide the court with a written report informing the court of this determination.(4)The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, they shall be provided with necessary care and treatment.(b)(1)The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence.(2)If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so.(c)The prosecution shall present its case regarding the issue of the defendants present mental competence.(d)Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention.(e)When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury.(f)In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous.(4)The report of the mental health expert prepared pursuant to this subdivision shall be completed and filed with the court within 30 days after the order, unless waived by the defendant or unless the court finds good cause for an extension.
(c)(1)If neither party objects to any competency report, the court may determine the competency of the defendant based on any competency report.
(2)If either party objects to any competency report and requests a hearing, the court shall hold a hearing to determine competence.
(3)In a hearing to determine competence, the defendant is presumed competent to stand trial unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
(4)If the defendant waives the right to a jury trial or as provided in paragraph (5), the hearing shall be heard by the court. Otherwise, a determination of the defendants competency to stand trial shall be decided by a jury. The verdict of the jury shall be unanimous.
(g)Only a court trial is required to determine competency in(5)In a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. parole, the hearing shall be heard by the court.
(h)(d)(1)The State Department of State Hospitals, on or before July 1, 2017, shall adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court pursuant to this section. To develop these guidelines, the State Department of State Hospitals shall convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders.
(2)When making an appointment pursuant to this section, the court shall appoint an expert who meets the guidelines established in accordance with this subdivision or an expert with equivalent experience and skills. If there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills, the court may appoint an expert who does not meet the guidelines.
(e)As used in this section, mental health expert means a licensed psychologist or psychiatrist. However, this section does not preclude the court from appointing any other qualified expert to evaluate the defendants mental condition in addition to a licensed psychologist or psychiatrist.
SEC. 3.Section 1370 of the Penal Code is amended to read:1370.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent 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:
(i)Determine whether restoring the person to mental competence is in the interests of justice.
(I)In exercising its discretion pursuant to this clause, the court shall consider the relevant circumstances of the charged offense, the defendants mental health condition and history of treatment, whether the defendant is likely to face incarceration if convicted, the likely length of any term of incarceration, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations.
(II)There is a rebuttable presumption that restoration to mental competence is not in the interests of justice if a defendant charged with either a violation of Section 211, a violation of paragraph (1) or (4) of subdivision (a) of Section 245, any felony punishable pursuant to subdivision (h) of Section 1170, or any offense that may be charged as either a felony or a misdemeanor. This presumption may be overcome by evidence that persuades the court that restoration to mental competence is in the interests of justice.
(ii)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).
(iii)If restoring the person to mental competence is not in the interests of justice, the court may do either of the following:
(I)Conduct a hearing, pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if the court deems the defendant eligible, grant diversion pursuant to Section 1001.36 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.
(ia)If the court opts to conduct a hearing pursuant to this subclause, 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.
(ib)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.
(ic)If the court finds the defendant ineligible for diversion based on the circumstances set forth in subdivision (b) or (d) of Section 1001.36, or if diversion is terminated unsuccessfully, 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:
(Ia)Order modification of the treatment plan in accordance with a recommendation from the treatment provider.
(Ib)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 date of the referral. 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.
(Ic)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 subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institution 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 directors 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 60 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 establishment of either a temporary or permanent conservatorship, the charges shall be dismissed pursuant to Section 1385.
(II)Dismiss the charges pursuant to Section 1385. If the criminal action is dismissed, the court shall transmit a copy of the order of dismissal to the county behavioral health director or the directors designee.
(B)(C)If the defendant is found mentally incompetent, and restoring the defendant to competence is in the interests of justice or the defendant is 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.
(i)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 defendants 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 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.
(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 persons 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.
(iv) (I)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.
(II)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.
(v)If a defendant is found by the court to be an appropriate candidate for diversion pursuant to clause (iv), the defendants 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 two years. If, during that period, the court determines that criminal proceedings should be reinstated pursuant to subdivision (d) 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 defendants competence to stand trial.
(vi)Upon the dismissal of charges at the conclusion of the period of diversion, pursuant to subdivision (e) of Section 1001.36, a defendant shall no longer be deemed incompetent to stand trial pursuant to this section.
(vii)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 (ii) or (iii) for inclusion in the defendants state summary criminal history information.
(D)If at any time after the finding of mental incompetence, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the court shall proceed pursuant to paragraph (2) of subdivision (c).
(C)(E)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)(F)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.
(E)(G)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(F)(H)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.
(G)(I)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 defendants psychiatric symptoms have changed to such a degree as to create a doubt in the mind of the judge as to the defendants current mental incompetence, the court may appoint a psychiatrist or a licensed psychologist to opine as to whether the defendant has regained attained competence. If, in the opinion of that expert, the defendant has regained 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.
(H)(J)(i)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:
(I)The defendant has regained attained competence.
(II)There is no substantial likelihood that the defendant will regain attain competence in the foreseeable future.
(III)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.
(ii)If, in the opinion of the departments expert, the defendant has regained 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.
(iii)If, in the opinion of the departments expert, there is no substantial likelihood that the defendant will regain attain mental competence in the foreseeable future, the committing court shall proceed pursuant to paragraph (2) of subdivision (c) no later than 10 days following receipt of the report.
(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) (i)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.
(ii)Commencing on July 1, 2023, 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.
(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) (b) 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)Based upon the opinion of the psychiatrist or licensed psychologist offered to the court pursuant to subparagraph (A) of paragraph (2) of subdivision (a) (b) of Section 1369, the defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants 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.
(II)Based upon the opinion of the psychiatrist or licensed psychologist offered to the court pursuant to subparagraph (A) of paragraph (2) of subdivision (a) (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 defendants 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, and based upon the opinion of the psychiatrist offered to the court pursuant to subparagraph (C) of paragraph (2) of subdivision (a) (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 defendants 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 appropriate in light of their medical condition.
(ii)(I)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 paragraph (2) of subdivision (a) (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.
(II)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 paragraph (2) of subdivision (a) (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.
(III)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 paragraph (2) of subdivision (a) (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.
(iii)An order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendants 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).
(iv)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.
(v)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 defendants 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.
(vi)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.
(vii)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 defendants appearance or behavior that would affect the defendants 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 defendants rights under this section.
(C)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 capacity to make decisions regarding antipsychotic medication based on the conditions described in subclause (I) or (II) of clause (i) of subparagraph (B), the treating psychiatrist shall certify whether the lack of capacity and any applicable conditions described above exist. That certification shall contain an assessment of the current mental status of the defendant and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate.
(D)(i)If the treating psychiatrist certifies that antipsychotic medication has become medically necessary and appropriate pursuant to subparagraph (C), antipsychotic medication may be administered to the defendant for not more than 21 days, provided, however, that, within 72 hours of the certification, the defendant is provided a medication review hearing before an administrative law judge to be conducted at the facility where the defendant is receiving treatment. The treating psychiatrist shall present the case for the certification for involuntary treatment and the defendant shall be represented by an attorney or a patients rights advocate. The attorney or patients rights advocate shall be appointed to meet with the defendant no later than one day prior to the medication review hearing to review the defendants 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 defendants interests at the hearing, review the panels final determination following the hearing, advise the defendant of their right to judicial review of the panels 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 defendants 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 defendants 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), antipsychotic medication may continue to be administered to the defendant for the 21-day certification period. Concurrently with the treating psychiatrists 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 judges 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 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 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:
(A)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.
(B)A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c).
(C)(i)A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment.
(ii)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 defendants maximum term of commitment based on the courts rejection of the certification.
(D)State summary criminal history information.
(E)Jail classification records for the defendants current incarceration.
(F)Arrest reports prepared by the police department or other law enforcement agency.
(G)Court-ordered psychiatric examination or evaluation reports.
(H)The community program directors placement recommendation report.
(I)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.
(J)Medical records, including jail mental health 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 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.
(5)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.
(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 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.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the community program director or a designee.
(B)If the defendant is initially committed to a State Department of State Hospitals facility 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 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 (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 defendants 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.
(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 defendants 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.
(8)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.
(b)(1)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 defendants progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary.
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 defendants progress toward recovery of mental incompetence 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 defendants progress toward recovery of mental incompetence and whether the administration of antipsychotic medication is necessary.
If the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendants 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 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 defendants 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 defendants 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 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 (2) 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.
(B)If the report indicates that there is no substantial likelihood that the defendant will regain 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:
(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 countys sheriff that immediate transportation will be needed for the defendant pursuant to subparagraph (A).
(C)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.
(2) The reports made pursuant to paragraph (1) concerning the defendants progress toward regaining attaining competency shall also consider the issue of involuntary medication pursuant to paragraph (2) of subdivision (a) (3) of subdivision (b) of Section 1369. Each report may include, but not be limited to, all of 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 their physical or mental health if not treated with antipsychotic medication.
(C)Whether or not the defendant presents a danger to others if the defendant is not treated with antipsychotic medication.
(D)Whether the defendant has a mental disorder 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 defendants 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 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:
(A)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.
(B)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.
(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 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) of subdivision (b), (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 courts finding of good cause.
(D)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) of subdivision (b), (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 courts finding of good cause.
(4)If it is determined by the court that treatment for the defendants 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.
(5)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).
(c)(1)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 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 defendants 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.
(2)(A)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 countys sheriff that immediate transportation will be needed for the defendant pursuant to paragraph (1).
(B)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.
(3)Whenever a defendant is returned to the court pursuant to paragraph (1), subparagraph (C) of paragraph (2) of subdivision (a), or paragraph (1) or (4) of subdivision (b) or paragraph (1) of this 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 defendants 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 defendants counsel of record of the outcome of the conservatorship proceedings.
(4)If a defendant is returned to court pursuant to paragraph (1), subparagraph (C) of paragraph (2) 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. Such 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).
(4)(5)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.
(5)(6)If the defendant is confined in a treatment facility, a copy of any report to the committing court regarding the defendants 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 (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.
(e)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).
(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 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.
(h)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.
SEC. 4.Section 1370.1 of the Penal Code is amended to read:1370.1.(a)(1)(A)If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.
(B)If the defendant is found mentally incompetent and has been determined by a regional center to have a developmental disability, the trial or judgment shall be suspended until the defendant becomes mentally competent.
(i)Except as provided in clause (ii) or (iii), the court shall consider a recommendation for placement. The recommendation shall be made to the court by the director of a regional center or the directors designee. In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff or other person designated by the court to a state hospital, developmental center, or any other available residential facility approved by the director of a regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code as will promote the defendants speedy attainment of mental competence, or be placed on outpatient status pursuant to the provisions of Section 1370.4 and Title 15 (commencing with Section 1600).
(ii)When the action against a 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 an offense specified in Section 290. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital or other secure treatment facility for the care and treatment of persons with developmental disabilities 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 persons 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 persons with developmental disabilities 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 a finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her the defendants state summary criminal history information.
(C)If the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the court shall proceed as provided in subdivision (e).
(C)(D)Upon becoming competent, the court shall order that the defendant be returned to the committing court pursuant to the procedures set forth in paragraph (2) of subdivision (a) of Section 1372 or by another person designated by the court. The court shall further determine conditions under which the person may be absent from the placement for medical treatment, social visits, and other similar activities. Required levels of supervision and security for these activities shall be specified.
(D)(E)The court shall transmit a copy of its order to the regional center director or the directors designee and to the Director of Developmental Services.
(E)(F)A defendant charged with a violent felony may not be placed in a facility or delivered to a state hospital, developmental center, or residential facility pursuant to this subdivision unless the facility, state hospital, developmental center, or residential facility has a secured perimeter or a locked and controlled treatment facility, and the judge determines that the public safety will be protected.
(F)(G)For purposes of this paragraph, violent felony means an offense specified in subdivision (c) of Section 667.5.
(G)(H)A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1370.4 or 1600, only if the court finds that the placement will not pose a danger to the health or safety of others.
(H)(I)As used in this section, developmental disability has the same meaning as in Section 4512 of the Welfare and Institutions Code.
(2)Prior to making the order directing that the defendant be confined in a state hospital, developmental center, or other residential facility, or be placed on outpatient status, the court shall order the regional center director or the directors designee to evaluate the defendant and to submit to the court, within 15 judicial days of the order, a written recommendation as to whether the defendant should be committed to a state hospital, a developmental center, or to any other available residential facility approved by the regional center director. A person shall not be admitted to a state hospital, developmental center, or other residential facility or accepted for outpatient status under Section 1370.4 without having been evaluated by the regional center director or the directors designee.
(3)If the court orders that the defendant be confined in a state hospital or other secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1), the court shall provide copies of the following documents, which shall be taken with the defendant to the state hospital or other secure treatment facility where the defendant is to be confined:
(A)State summary criminal history information.
(B)Any arrest reports prepared by the police department or other law enforcement agency.
(C)Records of a finding of mental incompetence pursuant to this chapter arising out of a complaint charging a felony offense specified in Section 290 or a pending Section 1368 proceeding arising out of a charge of an offense specified in Section 290.
(4)When the defendant is committed to a residential facility pursuant to clause (i) of subparagraph (B) of paragraph (1) or the court makes the findings specified in clause (ii) or (iii) of subparagraph (B) of paragraph (1) to assign the defendant to a facility other than a state hospital or other secure treatment facility, the court shall order that notice be given to the appropriate law enforcement agency or agencies having local jurisdiction at the site of the placement facility of a finding of mental incompetence pursuant to this chapter arising out of a charge of an offense specified in Section 290.
(5)(A)If the defendant is committed or transferred to a state hospital or developmental center pursuant to this section, the court may, upon receiving the written recommendation of the executive director of the state hospital or developmental center and the regional center director that the defendant be transferred to a residential facility approved by the regional center director, order the defendant transferred to that facility. If the defendant is committed or transferred to a residential facility approved by the regional center director, the court may, upon receiving the written recommendation of the regional center director, transfer the defendant to a state hospital, a developmental center, or to another residential facility approved by the regional center director.
In the event of dismissal of the criminal action or revocation proceedings before the defendant recovers competence, the person shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code.
The defendant or prosecuting attorney may contest either kind of order of transfer by filing a petition with the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the defendant may present evidence bearing on the order of transfer. The court shall use the same standards as used in conducting probation revocation hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the court shall notify the defendant, the attorney of record for the defendant, the prosecuting attorney, and the regional center director or designee.
(B)If the defendant is committed to a state hospital or secure treatment facility pursuant to clause (ii) or (iii) of subparagraph (B) of paragraph (1) and is subsequently transferred to another facility, copies of the documents specified in paragraph (3) shall be taken with the defendant to the new facility. The transferring facility shall also notify the appropriate law enforcement agency or agencies having local jurisdiction at the site of the new facility that the defendant is a person subject to clause (ii) or (iii) of subparagraph (B) of paragraph (1).
(b)(1)Within 90 days of admission of a person committed pursuant to subdivision (a), the executive director or the directors designee of the state hospital, developmental center, or other facility to which the defendant is committed, shall make a written report to the committing court and the regional center director or a designee concerning the defendants progress toward becoming mentally competent. If the defendant is placed on outpatient status, this report shall be made to the committing court by the regional center director or the directors designee. If the defendant has not become mentally competent, but the report discloses a substantial likelihood the defendant will become mentally competent within the next 90 days, the court may order that the defendant remain in the state hospital, developmental center, or other facility or on outpatient status for that period of time. Within 150 days of an admission made pursuant to subdivision (a), or if the defendant becomes mentally competent, the executive director or the directors designee of the state hospital, developmental center, or other facility to which the defendant is committed shall report to the court and the regional center director or the directors designee regarding the defendants progress toward becoming mentally competent. If the defendant is placed on outpatient status, the regional center director or the directors designee shall make that report to the committing court. The court shall provide copies of all reports under this section to the prosecutor and defense counsel. If the report indicates that there is no substantial likelihood that the defendant has become mentally competent, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c). The court shall transmit a copy of its order to the regional center director or the directors designee and to the executive director of the developmental center.
(2)If it is determined by the court that treatment for the defendants mental impairment is not being conducted, the defendant shall be returned to the committing court. A copy of this order shall be sent to the regional center director or the directors designee and to the executive director of the developmental center.
(3)At each review by the court specified in this subdivision, the court shall determine if the security level of housing and treatment is appropriate and may make an order in accordance with its determination.
(c)(1)(A)At the end of 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 misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, a defendant who has not become mentally competent shall be returned to the committing court.
(B)The court shall notify the regional center director or the directors designee and the executive director of the developmental center of that return and of any resulting court orders.
(2)(A)Except as provided in subparagraph (B), in the event of dismissal of the criminal charges before the defendant becomes mentally competent, the defendant shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), or to commitment and detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code. If it is found that the person is not subject to commitment or detention pursuant to the applicable provision of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code, the individual shall not be subject to further confinement pursuant to this article and the criminal action remains subject to dismissal pursuant to Section 1385. The court shall notify the regional center director and the executive director of the developmental center of any dismissal.
(B)In revocation proceedings alleging a violation of mandatory supervision in which the defendant remains incompetent upon return to court under subparagraph (A), the defendant shall be subject to the applicable provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), or to commitment and detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code. If it is found that the person is not subject to commitment or detention pursuant to the applicable provision of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or to commitment or detention pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code, the court shall reinstate mandatory supervision and modify the terms and conditions of supervision to include appropriate mental health treatment or refer the matter to a local mental health court, reentry court, or other collaborative justice court available for improving the mental health of the defendant. Actions alleging a violation of mandatory supervision are not subject to dismissal under Section 1385.
(d)Except as provided in subparagraph (B) of paragraph (2) of subdivision (c), the criminal action remains subject to dismissal pursuant to Section 1385. If at any time prior to the maximum period of time allowed for proceedings under this article, the regional center director concludes that the behavior of the defendant related to the defendants criminal offense has been eliminated during time spent in court-ordered programs, the court may, upon recommendation of the regional center director, dismiss the criminal charges. The court shall transmit a copy of any order of dismissal to the regional center director and to the executive director of the developmental center.
(e)If a defendant is returned to court pursuant to subparagraph (C) of paragraph (1) of subdivision (a), paragraph (1) of subdivision (b), or subparagraph (A) of paragraph (1) of subdivision (c), 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. Such 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 proceed as provided in subdivision (c).
(e)(f)For the purpose of this section, secure treatment facility does not include, except for state mental hospitals, state developmental centers, and correctional treatment facilities, a facility licensed pursuant to Chapter 2 (commencing with Section 1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2 (commencing with Section 1569) of, Division 2 of the Health and Safety Code, or a community board and care facility.
SEC. 5.Section 4361 of the Welfare and Institutions Code is amended to read:4361.(a)As used in this section, department means the State Department of State Hospitals.
(b)The purpose of this chapter is to, subject to appropriation by the Legislature, promote the diversion of individuals with serious mental disorders as prescribed in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, and to assist counties in providing diversion for individuals with serious mental illnesses who have been found incompetent to stand trial and committed to the department for restoration of competency. In implementing this chapter, the department shall consider local discretion and flexibility in diversion activities that meet the communitys needs and provide for the safe and effective treatment of individuals with serious mental disorders across a continuum of care.
(c)(1)Subject to appropriation by the Legislature, the department may solicit proposals from, and may contract with, a county to help fund the development or expansion of pretrial diversion described in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, for the population described in subdivision (b) and that meets all of the following criteria:
(A)Participants are individuals diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, and schizoaffective disorder, but excluding a primary diagnosis of antisocial personality disorder, borderline personality disorder, and pedophilia, and who are presenting non-substance-induced psychotic symptoms, who have been found incompetent to stand trial pursuant to clause (iv) of subparagraph (B) (C) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code.
(B)There is a significant relationship between the individuals serious mental disorder and the charged offense, or between the individuals conditions of homelessness and the charged offense.
(C)The individual does not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18 of the Penal Code, if treated in the community.
(2)A county submitting a proposal for funding under this chapter shall designate a lead entity to apply for the funds. This lead entity shall show in its proposal that it has support from other county entities or other relevant entities, including courts, that are necessary to provide successful diversion of individuals under the contract.
(d)When evaluating proposals from the county, the department, in consultation with the Council on Criminal Justice and Behavioral Health within the Department of Corrections and Rehabilitation, shall prioritize proposals that demonstrate all of the following:
(1)Provision of clinically appropriate or evidence-based mental health treatment and wraparound services across a continuum of care, as appropriate, to meet the individual needs of the diversion participant. For purposes of this section, wraparound services means services provided in addition to the mental health treatment necessary to meet the individuals needs for successfully managing the individuals mental health symptoms and to successfully live in the community. Wraparound services provided by the diversion program shall include appropriate housing, intensive case management, and substance use disorder treatment, and may include, without limitation, forensic assertive community treatment teams, crisis residential services, criminal justice coordination, peer support, and vocational support.
(2)Collaboration between community stakeholders and other partner government agencies in the diversion of individuals with serious mental disorders.
(3)Connection of individuals to services in the community after they have completed diversion as provided in this chapter.
(e)The department may also provide funding in the contract with the county, subject to appropriation by the Legislature, to cover the cost of providing postbooking assessment of defendants who are likely to be found incompetent to stand trial on felony charges to determine whether the defendant would benefit from diversion as included in the contract.
(f)The department may also provide funding in the contract with the county, subject to appropriation by the Legislature, to cover the cost of in-jail treatment prior to the placement in the community for up to an average of 15 days for defendants who have been approved by the court for diversion as included in the contract.
(g)A county contracted pursuant to this chapter shall report data and outcomes to the department, within 30 days after the end of each quarter, regarding those individuals targeted by the contract and in the program. This subdivision does not preclude the department from specifying reporting formats or from modifying, reducing, or adding data elements or outcome measures from a contracting county, as needed to provide for reporting of effective data and outcome measures. Notwithstanding any other law, but only to the extent not prohibited by federal law, the county shall provide specific patient information to the department for reporting purposes. The patient information is confidential and is not open to public inspection. A contracting county shall, at a minimum, report all of the following:
(1)The number of individuals that the court ordered to postbooking diversion and the length of time for which the defendant has been ordered to diversion.
(2)The number of individuals participating in diversion.
(3)The name, social security number, criminal identification and information (CII) number, date of birth, and demographics of each individual participating in the program. This information is confidential and is not open to public inspection.
(4)The length of time in diversion for each participating individual. This information is confidential and is not open to public inspection.
(5)The types of services and supports provided to each individual participating in diversion. This information is confidential and is not open to public inspection.
(6)The number of days each individual was in jail prior to placement in diversion. This information is confidential and is not open to public inspection.
(7)The number of days that each individual spent in each level of care facility. This information is confidential and is not open to public inspection.
(8)The diagnoses of each individual participating in diversion. This information is confidential and is not open to public inspection.
(9)The nature and felony or misdemeanor classification of the charges for each individual participating in diversion. This information is confidential and is not open to public inspection.
(10)The number of individuals who completed diversion.
(11)The name, social security number, CII number, and birth date of each individual who did not complete diversion and the reasons for not completing. This information is confidential and is not open to public inspection.
(h)Contracts awarded pursuant to this chapter are exempt from the requirements contained in the Public Contract Code and the State Administrative Manual and are not subject to approval by the Department of General Services.
(i)The funds shall not be used to supplant existing services or services reimbursable from an available source but rather to expand upon them or support new services for which existing reimbursement may be limited.
(j)(1)Beginning July 1, 2021, subject to appropriation by the Legislature, the department may amend contracts with a county to fund the expansion of an existing department-funded pretrial diversion as described in Chapter 2.8A (commencing with Section 1001.35) of Title 6 of Part 2 of the Penal Code, for the population described in subdivision (b) and that meets both of the following criteria:
(A)All participants identified for potential diversion are found incompetent to stand trial on a felony charge.
(B)Participants diverted through a program expansion suffer from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, excluding antisocial personality disorder, borderline personality disorder, and pedophilia.
(2)Counties expanding their programs under this section will not be required to meet any additional match funding requirements.
(k)Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the state hospitals and the department may implement, interpret, or make specific this section by means of a departmental letter or other similar instruction, as necessary.
(l)The department shall have access to the arrest records and state summary of criminal history of defendants who are participating or have participated in the diversion program. The information may be used solely for the purpose of looking at the recidivism rate for those patients.
(m)If the defendant is committed directly to a county program in lieu of commitment to the department, counties shall provide the minute order from the court documenting the incompetent to stand trial finding on a felony charge and the original alienist evaluation associated with that finding.
(n)For department-funded diversion programs funded through appropriations made by the Budget Act of 2018 or new county programs funded through the Budget Act of 2021, participants in those county programs may include individuals diagnosed with schizophrenia, schizoaffective disorder, or bipolar disorder, who are likely to be found incompetent to stand trial for felony charges, pursuant to Section 1368 of the Penal Code, or who have been found incompetent to stand trial pursuant to clause (iv) of subparagraph (B) (C) of paragraph (1) of subdivision (a) of Section 1370 of the Penal Code, until new funds are dispersed to the county. Counties shall continue to comply with all terms of the contract signed with the department, including matching fund and data reporting requirements.
SECTION 1.Section 1369.5 of the Penal Code is amended to read:1369.5.(a)A document submitted to a court pursuant to this chapter, including, but not limited to, Sections 1369, 1370, 1370.01, 1370.1, and 1372, is presumptively confidential, except as otherwise provided by law.(b)A document described in subdivision (a) shall be retained in the confidential portion of the courts file. Counsel for the defendant and the prosecution shall maintain the documents as confidential.(c)(1)The defendant, counsel for the defendant, and the prosecution may inspect, copy, or utilize the documents, and any information contained in the documents, without an order from the court for purposes related to the defense, prosecution, treatment, and safety of the defendant, and for the safety of the public.(2)A motion, application, or petition to access the documents shall be decided pursuant to subdivision (h) of Rule 2.551 of the California Rules of Court.(a)A document submitted to a court pursuant to this chapter, including, but not limited to, Sections 1369, 1370, 1370.01, 1370.1, and 1372, is presumptively confidential, except as otherwise provided by law.
(b)A document described in subdivision (a) shall be retained in the confidential portion of the courts file. Counsel for the defendant and the prosecution shall maintain the documents as confidential.
(c)(1)The defendant, counsel for the defendant, and the prosecution may inspect, copy, or utilize the documents, and any information contained in the documents, without an order from the court for purposes related to the defense, prosecution, treatment, and safety of the defendant, and for the safety of the public.
(2)A motion, application, or petition to access the documents shall be decided in accordance with pursuant to subdivision (h) of Rule 2.551 of the California Rules of Court.
|
Date
|
Status
|
|---|---|
| Sep 1, 2023 | In committee: Held under submission. |
| Aug 21, 2023 | In committee: Referred to APPR suspense file. |
| Aug 2, 2023 | In committee: Hearing postponed by committee. |
| Jul 12, 2023 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 3. Noes 1.) (July 11). Re-referred to Com. on APPR. |
| Jul 3, 2023 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on PUB S. |
| Jun 14, 2023 | Referred to Com. on PUB S. |
| Jun 1, 2023 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 31, 2023 | Read third time. Passed. Ordered to the Senate. (Ayes 50. Noes 18. Page 2032.) |
| May 18, 2023 | Joint Rule 62(a), file notice suspended. (Page 1580.) |
| May 18, 2023 | Read second time. Ordered to third reading. |
| May 18, 2023 | From committee: Do pass. (Ayes 11. Noes 4.) (May 18). |
| May 17, 2023 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 24, 2023 | Re-referred to Com. on APPR. |
| Apr 20, 2023 | Read second time and amended. |
| Apr 19, 2023 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 6. Noes 2.) (April 18). |
| Mar 20, 2023 | Re-referred to Com. on PUB. S. |
| Mar 16, 2023 | Referred to Com. on PUB. S. |
| Mar 16, 2023 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Feb 18, 2023 | From printer. May be heard in committee March 20. |
| Feb 17, 2023 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 21, 2023 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 11, 2023 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
Passed |
|
| May 31, 2023 | AB 1584 Weber Assembly Third Reading | Assembly Floor |
Passed |
|
| May 18, 2023 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 18, 2023 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| ACLU California | * Support | Jul 11, 2023 |
| AntiRecidivism Coalition | * Support | Apr 18, 2023 |
| Association of Regional Centers Agencies | * Indeterminate | Jul 11, 2023 |
| California District Attorneys Association | * Against | Jul 11, 2023 |
| California Public Defenders Association | * Support | Jul 11, 2023 |
| California State Sheriffs Associaiton | * Against | Jul 11, 2023 |
| Californians for Safety and Justice | * Support | Apr 18, 2023 |
| CDAA | * Against | Apr 18, 2023 |
| Depression and Bipolar Support Alliance of California | * Support | Jul 11, 2023 |
| Ella Baker Center For Human Rights | * Support | Jul 11, 2023 |
| Friends Committee on Legislative of California | * Support | Jul 11, 2023 |
| Initiate Justice | * Support | Jul 11, 2023 |
| Legal Services for Prisoners with Children | * Support | Apr 18, 2023 |
| National Association of Social Workers California Chapter | * Support | Jul 11, 2023 |
| San Diegans Against Crime | ** Against | |
| San Diego Deputy District Attorneys Association | ** Against | |
| San Francisco Public Defender's Office | ** Support | Apr 18, 2023 |
| Smart Justice California | * Support | Jul 11, 2023 |
| Steinberg Institute | * Support | Jul 11, 2023 |
| Yolo County District Attorney's Office | * Against | Apr 18, 2023 |
| Young Women's Freedom Center | * Support | Apr 18, 2023 |
SENATE COMMITTEE ON APPROPRIATIONS
Senator Anthony Portantino, Chair
2023 - 2024 Regular Session
AB 1584 (Weber) - Criminal procedure: competence to stand trial
Version: July 3, 2023 | Policy Vote: PUB. S. 3 - 1 |
Urgency: No | Mandate: No |
Hearing Date: August 21, 2023 | Consultant: Matthew Fleming |
Bill Summary:
AB 1584 would make a number of changes to the existing mental competency system for criminal defendants, including requiring a court to determine whether restoring a felony defendant to competency is in the interests of justice when the defendant has been deemed incompetent to stand trial.
Fiscal Impact:
- Unknown costs to the courts in order to incentivize and contract more with mental health evaluators to conduct the required competency evaluations within the 30-day timeframe specified by AB 1584 (Trial Court Trust Fund, General Fund). Potential savings to courts to the extent that cases are diverted out of traditional criminal proceedings, alleviating some need to conduct complex hearings and trials.*
- Unknown, potentially reimbursable costs to county behavioral health departments to provide services for additional defendants in mental health diversion (local funds, General Fund).*
- Likely minor and absorbable costs to the Department of State Hospitals (DSH). Potential savings.
* See Staff Comments for additional detail.
Background:
- Competency Proceedings: The Due Process Clause of the United States Constitution prohibits the criminal prosecution of a defendant who is not mentally competent to stand trial. Existing law provides that if a person has been charged with a crime and is not able to understand the nature of the criminal proceedings and/or is not able to assist counsel in his or her defense, the court may determine that the offender is Incompetent to Stand Trial (IST). When the court issues an order for a hearing into the present mental competence of the defendant, all proceedings in the criminal prosecution are suspended until the question of present mental competence has been determined.
In order to determine mental competence, the court must appoint a psychiatrist or licensed psychologist to examine the defendant. If defense counsel opposes a finding on incompetence, the court must appoint two experts: one chosen by the defense, one by the prosecution. The examining expert(s) must evaluate the defendant’s alleged mental disorder and the defendant’s ability to understand the proceedings and assist counsel, as well as address whether antipsychotic medication is medically appropriate.
Both parties have a right to a jury trial to decide competency. Because a defendant is initially considered competent to stand trial usually this means that the defense bears the burden of proof to establish incompetence. Therefore, defense counsel must first present evidence to support mental incompetence. However, if defense counsel does not want to offer evidence to have the defendant declared incompetent, the prosecution may. Each party may offer rebuttal evidence. Final arguments are presented to the court or jury, with the prosecution going first, followed by defense counsel.
If after an examination and hearing the defendant is found IST, the criminal proceedings are suspended and the court shall order the defendant to be referred to the Department of State Hospitals, or to any other available public or private treatment facility, including a community-based residential treatment system that meets certain requirements.
- Mental Health Diversion: Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume, however, a hearing to terminate diversion is required.
In 2018, the Legislature enacted a law authorizing pretrial diversion of eligible defendants with mental disorders. Under the mental health diversion law, in order to be eligible for diversion, 1) the defendant must suffer from a mental disorder, except those specifically excluded, 2) that played a significant factor in the commission of the charged offense; 3) in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; 4) the defendant must consent to diversion and waive the right to a speedy trial; 5) the defendant must agree to comply with treatment as a condition of diversion; and 6) the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined, if treated in the community. Certain charges make a defendant ineligible for mental health diversion.
- IST Working Group: The Legislature enacted Welfare & Institutions Code (WIC) section 4147 through the passage of Assembly Bill 133 (Chapter 143, Statutes of 2021) and the Budget Act of 2021 (Chapter 69, Statutes of 2021). That section charged the California Health & Human Services Agency (CalHHS) and the Department of State Hospitals (DSH) to convene an IST Workgroup to identify actionable solutions that address the increasing number of individuals with serious mental illness who become justice-involved and deemed IST on felony charges.
According to the IST Working Group, there has been an exponential increase in individuals found IST across the country. This has left State-run mental health systems, including DSH challenged to meet the demands of year-over-year increases in the number of IST referrals to their systems. The State has responded with a variety of legislative efforts to reduce the length of stay of IST patients in a DSH bed and, in conjunction with the capacity DSH has added to its system of care, allowed the department to increase the number of IST commitments served year-over-year.
For example, the Budget Act of 2018 allocated DSH one-time funds of $100 million to establish the DSH Felony Mental Health Diversion (Diversion) pilot program. Of this funding, $99.5 million was earmarked to send directly to counties that chose to contract with DSH to establish a pilot Diversion program (the remaining $500,000 was for program administration and data collection support at DSH).
- Committee on the Revision of the Penal Code: On January 1, 2020, the Committee on the Revision of the Penal Code was established within the Law Review Commission to study the Penal Code and recommend statutory reforms. After holding meetings over the course of a year and hearing testimony from more than 50 witnesses, extensive public comment, thorough staff research, and deliberations of Committee members over the course of 6 public meetings, the Committee released its third annual report December 2022 describing its work and resulting 10 recommendations.
One of the Committee’s recommendations is to modernize the competency to stand trial system. The Committee made three recommendations:
- Require judges to determine whether restoration to competency is in the interests of justice by considering all relevant circumstances of the offense, including the likelihood and length of incarceration if convicted. A presumption against restoration would apply to: Penal Code section 1170(h) felonies, wobblers, and assault and robbery offenses. If a judge concludes that restoration is not in the interests of justice, the court can then consider diversion, a conservatorship, or other existing treatment options.
- Require court-appointed mental health experts to return competency evaluations within 30 days. The court may extend the time for good cause.
- Require a judge to determine — and court-appointed mental health experts to opine — whether a person found incompetent to stand trial has a substantial probability of attaining competency within the required time frame. In addition, require the court-appointed mental health expert to evaluate their suitability for mental health diversion.
Proposed Law:
- Provides that in cases where there is a doubt as to the competence of the defendant to stand trial, the court shall suspend the criminal proceedings and appoint at least one mental health expert to examine the defendant’s mental condition. If the defendant is not seeking a finding of incompetence, the court shall appoint two mental health experts only upon request of defense counsel, in which case one shall be named by the defense and one shall be named by the prosecution.
- Provides that the mental health expert shall evaluate the defendant and submit a written report to the court that includes the opinion of the expert regarding all of the following matters:
- A diagnosis of the defendant’s mental condition, if any;
- Whether the defendant, as a result of a mental disorder or developmental disability, is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner;
- Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future; and,
- If requested by the defense, an opinion as to whether the defendant is eligible for mental health diversion.
- Prohibits any statements made by the defendant during a competency examination from being admitted in any other proceeding.
- Requires a report by the mental health expert to be completed and filed with the court within 30 days after the order, unless waived by the defendant or unless the court finds good cause for an extension.
- Provides that if neither party objects to a competency report, the court may determine competency of the defendant based on the report alone, but if either party objects and requests a hearing, the court shall hold a hearing to determine competence.
- Provides that if the defendant waives the right to a jury trial a competency hearing shall be heard by the court. Otherwise, a determination of the defendant’s competency to stand trial shall be decided by a jury.
- Provides that in a hearing to determine competence, the defendant is presumed competent unless it is proved by a preponderance of the evidence that the defendant is IST.
- Requires a court, in determining whether restoring the defendant’s competency is in the interests of justice, to consider the relevant circumstances of the charged offense, the defendant’s mental health condition and history of treatment, whether the defendant is likely to face incarceration if convicted, the likely length of any term of incarceration, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations.
- Provides that if restoring a 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 specified.
- Provides that if restoring the person to mental competence is not in the interests of justice, the court may do either of the following:
- Conduct a hearing to determine if the defendant eligible for mental health diversion, and if eligible, grant diversion 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; or,
- Dismiss the charges, as provided.
- Provides that if the court opts to conduct a hearing, 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.
- Provides that if the defendant performs satisfactorily on diversion, 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.
- Provides that if the court finds the defendant ineligible for diversion or if diversion is terminated unsuccessfully, 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:
- Order modification of the mental health diversion treatment plan in accordance with a recommendation from the treatment provider;
- Refer the defendant to assisted outpatient treatment, as specified;
- Refer the defendant to the county conservatorship investigator for possible conservatorship proceedings at which point the charges shall be dismissed as provided;
- Reinstate competency proceedings, in which case the court shall credit any time spent in mental health diversion against the maximum term of confinement as specified; or,
- Dismiss the charges, as provided.
Provides that if at any time after the finding of IST, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the defendant shall be returned to the committing court, as specified.
Provides that if the defendant is returned to court and the prosecution elects to dismiss and refile charges, the court shall presume that the defendant is incompetent unless the court is presented with relevant and credible evidence that the defendant is competent. Such 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. Otherwise, the court shall find that the defendant is IST and shall proceed as provided.
Provides that if the defendant is found IST after the refiling of charges, the defendant may be further committed only for the balance of time remaining as specified. The maximum term of commitment applies to the aggregate of all previous commitments.
Related Legislation:
- SB 349 (Roth), would provide that a certificate of restoration for a defendant who was found incompetent to stand trial shall apply to all cases pending against the defendant at the time of restoration. SB 349 is pending in the Assembly Appropriations Committee.
- AB 1630 (Weber, 2022) would have shifted the burden of proof to the prosecution to prove a finding of competence to stand trial when a court-appointed psychiatrist or licensed psychologist indicates that the defendant is incompetent. AB 1630 was held on this Committee’s suspense file.
- SB 317 (Stern), Chapter 599, Statutes of 2021, revised the process by which a person may be found IST on a misdemeanor, including eliminating competency restoration proceedings in misdemeanor cases.
- SB 184 (Committee on Budget and Fiscal Review, Health Trailer Bill) Ch. 47, Stats. of 2020, among other provisions, would impose a limit for all counties for individuals committed on the number of individuals committed as incompetent to stand trial.
Staff Comments:
- The Judicial Council (JCC) reports that the average cost of a court-ordered mental health examination, as required by existing law, is approximately $1000 per evaluator, per evaluation. The JCC projects that the annual number of court-ordered evaluations will reach as high as 30,000 in the next few calendar years, representing an increase of approximately 11,800 more evaluations annually. The courts are struggling to keep up with the increasing demand for mental health evaluations. AB 1584 would require evaluations to be conducted and a report submitted to the court within 30 days of the order, absent a showing of good cause to extend that timeframe. Accordingly, the courts will need to attract and fund more evaluators who can conduct evaluations within 30 days. It is unknown how much demand will be created by the 30-day timeframe, that would not already exist given the increasing number of court-ordered mental health evaluations. JCC, for its part, estimates costs in the low tens of millions to meet the increasing demand.
- To the extent this bill results in more defendants who participate in mental health diversion, county behavioral health departments would incur some costs in providing those defendants with mental health services. Actual costs depend on the number of eligible defendants and discretion of individual judges to grant mental health diversion. Costs to the General Fund will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates. As part of the 2022 Budget Act, $535.5 million was provided to the DSH, increasing to $638 million General Fund per year in 2025-26 and ongoing. Those funds were allocated to expand diversion and community-based restoration capacity by establishing 5,000 beds, over four years to support felony ISTs. This funding also included ongoing funding for operations to provide services and supports to ISTs in Diversion.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Aisha Wahab, Chair
2023 - 2024 Regular
Bill No: AB 1584 Hearing Date: July 11, 2023
Author: | Weber | ||
Version: | July 3, 2023 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | SC | ||
Subject: Criminal procedure: competence to stand trial
HISTORY
Source: California Public Defenders Association
ACLU California Action
Prior Legislation: AB 1640 (Weber), held on suspense in Sen. Approps. Comm., 2022
SB 1223 (Becker), Ch. 735, Stats. 2022
SB 184 (Committee on Budget), Ch. 47, Stats. 2022
SB 317 (Stern), Chapter 599, Statutes of 2021
SB 215 (Beall), Ch. 1005, Stats. 2018
AB 1810 (Committee on Budget), Ch. 34, Stats. 2018
SB 8 (Beall), held on Suspense File in Assem. Appropriations, 2017
Support: Depression and Bipolar Support Alliance; Disability Rights California; Friends Committee on Legislation of California; Initiate Justice (UNREG); National Association of Social Workers, California Chapter; Steinberg Institute
Opposition: California District Attorneys Association; California State Sheriffs’ Association; San Diegans Against Crime; San Diego Deputy District Attorneys Association
Assembly Floor Vote: 50 - 18
PURPOSE
The purpose of this bill is to makes changes to the existing mental competency system for criminal defendants, including requiring a court to determine whether restoring a felony defendant to competency is in the interests of justice when the defendant has been deemed incompetent to stand trial.
Existing law states that a person cannot be tried or adjudged to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. (Pen. Code § 1367, subd. (a).)
Existing law requires, when counsel has declared a doubt as to the defendant’s competence, the court to hold a hearing determine whether the defendant is incompetent to stand trial (IST). (Pen. Code § 1368, subd. (b).)
Existing law provides that, except as provided, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of whether the defendant is IST is determined. (Pen. Code § 1368, subd. (c).)
Existing law provides that if the defendant is found mentally competent, the criminal process shall resume. If the defendant has been found IST, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent. (Pen. Code §1370, subd. (a).)
Existing law states that a person who has been found to be IST may be eligible for mental health diversion. (Pen. Code, § 1001.36, subd. (b)(1)(D).
Existing law specifies how the trial on the issue of mental competency shall proceed. (Pen. Code § 1369.)
Existing law requires the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. (Pen. Code, § 1369, subd. (a)(1).)
Existing law provides that if the defendant or defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution. (Pen. Code, § 1369, subd. (a)(1).)
This bill instead states that the court shall suspend the criminal proceedings and appoint at least one mental health expert to examine the defendant’s mental condition and if the defendant is not seeking a finding of mental incompetence, the court shall appoint two mental health experts only upon request of defense counsel, in which case one shall be named by the defense and one shall be named by the prosecution.
This bill states that a mental health expert shall evaluate the defendant and submit a written report to the court. The report shall include the opinion of the expert regarding all of the following matters:
- A diagnosis of the defendant’s mental condition, if any;
- Whether the defendant, as a result of a mental disorder or developmental disability, is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner;
- Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future; and,
- If requested by the defense, an opinion as to whether the defendant is eligible for mental health diversion.
This bill defines “mental health expert” to mean “a licensed psychologist or psychiatrist.”
However, this bill does not preclude the court from appointing any other qualified expert to evaluate the defendant’s mental condition in addition to a licensed psychologist or psychiatrist
This bill prohibits any statements made by the defendant during an examination pursuant to this section from being admitted in any other proceeding. This paragraph is intended to codify the holding of the United States Supreme Court in Estelle v. Smith (451 U.S. 454), and is therefore declarative of existing law.
This bill requires the report by the mental health expert to be completed and filed with the court within 30 days after the order, unless waived by the defendant or unless the court finds good cause for an extension.
Existing law states that in a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous. (Pen. Code, §1369, subd. (f).)
Existing law states that only a court trial is required to determine competency in a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen Code, § 1369, subd. (g).)
This bill states that if neither party objects to any competency report, the court may determine competency of the defendant based on the report. If either party objects and requests a hearing, the court shall hold a hearing to determine competence.
This bill provides that if the defendant waives the right to a jury trial the hearing shall be heard by the court. Otherwise, a determination of the defendant’s competency to stand trial shall be decided by a jury.
This bill states that in a hearing to determine competence, the defendant is presumed competent unless it is proved by a preponderance of the evidence that the defendant is IST.
Existing law states that the purpose of mental health diversion is to promote the following:
- Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety;
- Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings; and,
- Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders. (Pen. Code, § 1001.35.)
Existing law permits, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court, in its discretion, to grant pretrial mental health diversion to a defendant if the defendant satisfies the eligibility requirements and the court determines that the defendant is suitable for that diversion. (Pen. Code, § 1001.36, subd. (a).
Existing law provides that a defendant is eligible for pretrial diversion if both of the following criteria are met:
- The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence; and,
- The defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense. (Pen. Code, § 1001.36, subd. (b).)
Existing law states that for any defendant who satisfies the eligibility requirements, the court must consider whether the defendant is suitable for pretrial diversion. The defendant is suitable for pretrial diversion if all of the following criteria are met:
- In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment;
- The defendant consents to diversion and waives their right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment due to the their mental incompetence and cannot consent to diversion or give a knowing and intelligent waiver of their right to a speedy trial;
- The defendant agrees to comply with treatment as a condition of diversion, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment for restoration of mental incompetence and cannot agree to comply with treatment; and,
- The defendant will not pose an unreasonable risk of danger to public safety, as defined, if treated in the community. In making this determination, the court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s treatment plan, the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. (Pen. Code, § 1001.36, subds. (c).)
Existing law excludes defendants charged with the following offenses from mental health diversion eligibility:
- Murder or voluntary manslaughter;
- An offense for which a person, if convicted, would be required to register as a sex offender, except for an indecent exposure violation;
- Rape;
- Lewd or lascivious act on a child under 14 years of age;
- Assault with intent to commit rape, sodomy, or oral copulation;
- Commission of rape or sexual penetration in concert with another person;
- Continuous sexual abuse of a child; and,
- Violations involving weapons of mass destruction. (Pen. Code, § 1001.36, subds. (d).)
Existing law provides that if the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. (Pen. Code, § 1001.36, subd. (h).)
Existing law states that 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. (Pen. Code, § 1370, subd. (a)(1)(A).)
Existing law states that if the defendant is found IST, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent. (Pen. Code, § 1370, subd. (a)(1)(B).)
Existing law states that the court shall order the defendant who was found IST to be delivered by the sheriff to a State Department of State Hospitals facility, 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. (Pen. Code, § 1370, subd. (a)(1)(C)(i).)
This bill states that if the defendant is found IST and is not charged with an offense that is statutorily excluded from mental health diversion, the trial, the hearing on the alleged violation, or the judgment shall be suspended, and the court shall determine whether restoring the person to mental competence is in the interests of justice.
This bill requires the court, in determining whether restoring the defendant’s competency is in the interests of justice, to consider the relevant circumstances of the charged offense, the defendant’s mental health condition and history of treatment, whether the defendant is likely to face incarceration if convicted, the likely length of any term of incarceration, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations.
This bill provides that 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.
This bill states that if restoring the person to mental competence is not in the interests of justice, the court may do either of the following:
- Conduct a hearing to determine if the defendant eligible for mental health diversion, and if eligible, grant diversion 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; or,
- Dismiss the charges, as provided.
The bill provides that if the court opts to conduct a hearing, 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.
This bill states that if the defendant performs satisfactorily on diversion, 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.
This bill states that if the court finds the defendant ineligible for diversion or if diversion is terminated unsuccessfully, 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:
- Order modification of the mental health diversion treatment plan in accordance with a recommendation from the treatment provider;
- Refer the defendant to assisted outpatient treatment, as provided;
- Refer the defendant to the county conservatorship investigator for possible conservatorship proceedings at which point the charges shall be dismissed as provided;
- Reinstate competency proceedings, in which case the court shall credit any time spent in mental health diversion against the maximum term of confinement as specified; or,
- Dismiss the charges, as provided.
This bill states that if at any time after the finding of IST, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, the defendant shall be returned to the committing court, as specified.
This bill provides that if the defendant is returned to court and the prosecution elects to dismiss and refile charges, the court shall presume that the defendant is incompetent unless the court is presented with relevant and credible evidence that the defendant is competent. Such 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. Otherwise, the court shall find that the defendant is IST and shall proceed as provided.
This bill states that if the defendant is found IST after the refiling of charges, the defendant may be further committed only for the balance of time remaining as specified. The maximum term of commitment applies to the aggregate of all previous commitments.
COMMENTS
- Need for This Bill
According to the author of this bill:
Under existing law, when the court orders a mental health expert to offer an opinion regarding competency, the court does not have the authority to order the expert to offer an opinion regarding the defendant’s eligibility for diversion or whether the defendant is likely to attain competency after treatment. Under existing law, an individual must receive substantive competency restoration services even when not in the interest of justice to do so, where the person is unlikely to be restored, or where other treatment options would be more effective.
This bill modernizes existing provisions of the State’s competency scheme by:
- Requiring judges to determine whether restoration to competency is in the interests of justice by considering all relevant circumstances of the offense, including the likelihood and length of incarceration if convicted and the defendant’s mental health condition and history of treatment.
- If requested by the defense, requiring the court-appointed mental health expert to evaluate whether a person found incompetent to stand trial is eligible and suitable for mental health diversion.
- Requiring a judge to determine, and court-appointed mental health experts to opine, whether a person found incompetent to stand trial has a substantial probability of attaining competency within the required time frame.
- Requiring court-appointed mental health experts to return competency evaluations within 30 days absent good cause for an extension; and require any hearing for mental health diversion to take place within 30 days of a finding of incompetency.
- Providing the defendant with the right to waive jury on the issue of competency.
- Background: Mental Competency in Criminal Proceedings
The Due Process Clause of the United States Constitution prohibits the criminal prosecution of a defendant who is not mentally competent to stand trial. Existing law provides that if a person has been charged with a crime and is not able to understand the nature of the criminal proceedings and/or is not able to assist counsel in his or her defense, the court may determine that the offender is incompetent to stand trial [IST]. (Pen. Code § 1367.) When the court issues an order for a hearing into the present mental competence of the defendant, all proceedings in the criminal prosecution are suspended until the question of present mental competence has been determined. (Pen. Code, §1368, subd. (c).)
In order to determine mental competence, the court must appoint a psychiatrist or licensed psychologist to examine the defendant. If defense counsel opposes a finding on incompetence, the court must appoint two experts: one chosen by the defense, one by the prosecution. (Pen. Code, § 11369, subd. (a).) The examining expert(s) must evaluate the defendant’s alleged mental disorder and the defendant’s ability to understand the proceedings and assist counsel, as well as address whether antipsychotic medication is medically appropriate. (Pen. Code, § 1369, subd. (a).)
Both parties have a right to a jury trial to decide competency. (Pen. Code, § 1369.) A formal trial is not required when jury trial has been waived. (People v. Harris (1993) 14 Cal.App.4th 984.) The burden of proof is on the party seeking a finding of incompetence. (People v. Skeirik (1991) 229 Cal.App.3d 444, 459-460.) Because a defendant is initially considered competent to stand trial (Medina v. California (1992) 505 U.S. 437), usually this means that the defense bears the burden of proof to establish incompetence. Therefore, defense counsel must first present evidence to support mental incompetence. However, if defense counsel does not want to offer evidence to have the defendant declared incompetent, the prosecution may. Each party may offer rebuttal evidence. Final arguments are presented to the court or jury, with the prosecution going first, followed by defense counsel. (Pen. Code, § 1369, subds. (b)-(e).)
If after an examination and hearing the defendant is found IST, the criminal proceedings are suspended and the court shall order the defendant to be referred to DSH, or to any other available public or private treatment facility, including a community-based residential treatment system 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, except as specified. (Pen. Code § 1368, subd. (c) and 1370, subd. (a)(1)(B).) The court may also make a determination as to whether the defendant is an appropriate candidate for mental health diversion pursuant to Penal Code section 1001.36.
“The state treats the majority of felony ISTs in state hospitals; however, many individuals wait in county jails for many months given the limited number of DSH beds, which has resulted in a waitlist of felony ISTs who have not been admitted to DSH. The treatment provided to felony ISTs—known as ‘competency restoration treatment’—differs from general mental health treatment. The objective of competency restoration treatment is to treat a felony IST until they are competent enough to face their criminal charge, rather than provide comprehensive treatment for an underlying mental health condition.” (See The 2022-23 Budget: Analysis of the Governor’s Major Behavioral Health Proposals (ca.gov) Legislative Analyst’s Office [as of June 29, 2023].)
- Committee on the Revision of the Penal Code’s Recommendation
On January 1, 2020, the Committee on the Revision of the Penal Code (“Committee”) was established within the Law Review Commission to study the Penal Code and recommend statutory reforms. (SB 94, Ch. 25, Stats. 2019; Gov. Code, § 8280.) The Committee’s objectives are as follows:
- Simplify and rationalize the substance of criminal law;
- Simplify and rationalize criminal procedures;
- Establish alternatives to incarceration that will aid in the rehabilitation of offenders; and,
- Improve the system of parole and probation.
(Gov. Code, § 8290.5, subd. (a).) In making recommendations to achieve these objectives, the Committee may recommend adjustments to the length of sentence terms. (Gov. Code, § 8290.5, subd. (b).) The Committee is required to prepare an annual report that describes its work in the prior calendar year and its expected work for the subsequent calendar year. (Gov. Code, § 8293, subd. (b).)
After holding meetings over the course of a year and hearing testimony from more than 50 witnesses, extensive public comment, thorough staff research, and deliberations of Committee members over the course of 6 public meetings, the Committee released its third annual report December 2022 describing its work and resulting 10 recommendations. (See < http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2022.pdf> [as of June 29, 2023].)
One of the Committee’s recommendations is to modernize the competency to stand trial system. The Committee’s report described the need to make changes to the current system:
The current system does not provide long-term treatment or improve safety. People who are found incompetent and then restored to competency often cycle back through the very same process — over a 10 year period, one-third of all people who were restored to competency and discharged from the Department of State Hospitals were later arrested and once again found incompetent to stand trial. Many were readmitted to DSH multiple times. The number of people found incompetent with more than 14 arrests has also steadily increased. Once returned to court after being found competent at the state hospital, people are most likely to be sent back into the community — only 24% of people found incompetent to stand trial are sent to prison — and 70% of people restored to competency are rearrested within 3 years.
. . . .
In the last 10 years, the number of people found incompetent to stand trial in California has far outpaced the state’s ability to provide timely services in response. The waitlist for placement at the state hospital — which only treats people with felony charges — has increased from 426 in 2014 to 1,737 in August 2022 and the average wait time for placement is 5 months.220 The waitlist has grown even as the state made an additional 1,380 restoration beds available over the last decade221 and spent $100 million to expand mental health diversion for people likely to become incompetent. The delays have resulted in a court order requiring the state to reduce the time it takes to begin competency restoration.
(Id. at 48-50.) The Committee made three recommendations:
- Require judges to determine whether restoration to competency is in the interests of justice by considering all relevant circumstances of the offense, including the likelihood and length of incarceration if convicted. A presumption against restoration would apply to: Penal Code section 1170(h) felonies, wobblers, and assault and robbery offenses. If a judge concludes that restoration is not in the interests of justice, the court can then consider diversion, a conservatorship, or other existing treatment options.
2) Require court-appointed mental health experts to return competency evaluations within 30 days. The court may extend the time for good cause.
3) Require a judge to determine — and court-appointed mental health experts to opine — whether a person found incompetent to stand trial has a substantial probability of attaining competency within the required time frame. In addition, require the court-appointed mental health expert to evaluate their suitability for mental health diversion.
This bill implements most of these recommendations. Specifically, this bill requires judges to determine whether restoration to competency is in the interests of justice by considering all relevant circumstances of the offense. If the judge concludes that restoration is not in the interests of justice, the court can then consider diversion, a conservatorship, or other existing treatment options. This bill also requires the court-appointed mental health expert to complete competency reports within 30 days of the order, unless waived by the defendant or the court finds good cause for the extension. This bill also requires the mental health expert to evaluate the defendant’s suitability for mental health diversion and for the expert and the court to determine whether a person found incompetent to stand trial has a substantial probability of attaining competency.
- Mental Health Diversion
Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions. A defendant may not be required to admit guilt as a prerequisite for placement in a pretrial diversion program. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged for the diverted offense. If diversion is not successfully completed, the criminal proceedings resume, however, a hearing to terminate diversion is required.
In 2018, the Legislature enacted a law authorizing pretrial diversion of eligible defendants with mental disorders. Under the mental health diversion law, in order to be eligible for diversion, 1) the defendant must suffer from a mental disorder, except those specifically excluded, 2) that played a significant factor in the commission of the charged offense; 3) in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment;
4) the defendant must consent to diversion and waive the right to a speedy trial; 5) the defendant must agree to comply with treatment as a condition of diversion; and 6) the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined, if treated in the community. (Pen. Code, § 1001.36, subds. (b)-(c).) The defendant is not eligible if they are charged with specified crimes. (Pen. Code, § 1001.36, subd. (d).)
In addition to the eligibility requirements of the defendant, mental health treatment program must meet the following requirements: 1) the court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant; 2) the defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources; 3) and the program must submit regular reports to the court and counsel regarding the defendant’s progress in treatment. (Pen. Code, § 1001.36, subd. (f).) The court has the discretion to select the specific program of diversion for the defendant. The county is not required to create a mental health program for the purposes of diversion, and even if a county has existing mental health programs suitable for diversion, the particular program selected by the court must agree to receive the defendant for treatment. (Pen. Code, § 1001.36, subd. (f)(1)(A).)
The diversion program cannot last more than two years for a felony and cannot last for more than a year on a misdemeanor. (Pen. Code, § 1001.36, subd. (f)(1)(C).)If there is a request for victim restitution, the court shall conduct a hearing to determine whether restitution is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of restitution. (Pen. Code, § 1001.36, subd. (f)(1)(D).)
The stated purpose of the diversion program is “to promote all of the following: . . . Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.” (Pen. Code, § 1001.35, subd. (b).)
As noted above, consistent with the recommendation of the Committee on the Revision of the Penal Code, this bill would require the mental health expert evaluating the defendant on the issue of competence to also provide an opinion on eligibility for mental health diversion, thereby saving potential resources in the form of a subsequent evaluation.
In addition, this bill would require the court to consider placing a defendant on mental health diversion in situations where the court determines that restoring the person to competency is not in the interests of justice.
- Argument in Support
According to ACLU California Action, a co-sponsor of this bill:
In 2018, the Council of State Governments Justice Center (CSG) convened an advisory group of experts to identify improvements to competency to stand trial procedures. In order to decrease the number of people jailed and wait-listed for state hospital, CSG recommendations included limiting the use of competency restoration to more serious cases.
In 2022, consistent with CSG’s suggested recommendations, the Committee on the Revision of the Penal Code (CRPC) recommended that judges be allowed to determine whether restoration to competency is in the interests of justice, applying a presumption against restoration for nonviolent offenses.
AB 1584 aligns with recommendations from CSG and CRPC by giving judges the discretion to determine the most appropriate response to a finding of incompetency, allowing for quicker determinations of eligibility for mental health diversion, and creating earlier off-ramps from state hospital waitlists to community-based care where safe and appropriate.
- Argument in Opposition
According to California District Attorneys Association (CDAA):
(CDAA) opposes AB 1584, which would authorize the court to find that restoration of a defendant’s mental competency not to be in the interests of justice for some severely mentally ill defendants. These individuals would not receive mental health services within the criminal justice system. Instead, their criminal case would be dismissed, and these severely mentally ill criminal offenders would be returned to the streets or their homes, where they would likely re-enter the criminal justice system. The Incompetent to Stand Trial Solutions Workgroup, Report of Recommended Solutions reported that 70% of people found to be incompetent are rearrested within three years.
AB 1584 would also eliminate the prosecutor’s right to seek a jury trial on the issue of competency. According to the Department of State Hospitals, over 66% of defendants who were initially found to be incompetent were able to have their competency restored. (Incompetent to Stand Trial Solutions Workgroup – Report of Recommended Solutions November 2021. Pg. 11.) An individual’s mental health status and one’s incompetency can be fluid and can change over time. The 66% restoration rate bears this out. Oftentimes, the issue of competency is a factual issue that must be litigated. This factual determination should be a fair process dedicated to reaching the truth of the individual’s mental competency. However, AB 1584 unfairly tips those scales of justice by eliminating the prosecutor’s ability to demand a jury trial on the issue of competency, while allowing the defendant the ability to demand a jury trial.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 1584
Author:(Weber)
As Amended Ver:April 20, 2023
Majority vote
SUMMARY
Requires the court to determine whether restoration to competency is in the interests of justice when a defendant in a felony case has been deemed incompetent to stand trial (IST).
Major Provisions
- States that if the defendant or defense counsel objects to an evaluation of mental incompetence, then two evaluators must be appointed, but only upon the request of defense counsel.
- Requires the report of the mental health expert evaluating the defendant to include the expert's opinion in the following matters, in addition to what must already be included:
- Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future; and
- An opinion as to whether the defendant is eligible for mental health diversion, if such an opinion is requested by the defense.
- Sets a 30-day deadline for submission of the evaluator's report, unless waived by the defendant or unless the court finds good cause for an extension.
- Provides that any statements made by the defendant during a mental health evaluation for purposes of determining competency are inadmissible in other proceedings. Clarifies that this limitation codifies the holding in Estelle v. Smith (1981) 451 U.S. 454.
- Allows the court to determine the issue of competency based on the reports, if neither party objects to any of the competency reports; however, requires a hearing on the issue if either party objects to the reports and requests a hearing.
- Provides that a defendant charged with a felony can waive the right to a jury trial on the issue of competency, in which case the hearing shall be heard by the court.
- Requires the court, upon a finding that a defendant who is not charged with an offense excluding a person from mental health diversion is found to be IST, to suspend the proceedings and determine whether restoring the person to mental competence is in the interests of justice, as specified.
- Requires the court to consider specified factors when determining if restoring the defendant to competency is in the interests of justice:
- Provides that if the court finds that restoring a defendant to competence is in the interests of justice, or if the defendant is charged with an offense making them ineligible for mental health diversion, the proceedings shall be suspended until the person becomes mentally competent.
- Authorizes the court to do either of the following when making a determination that restoration of competency is not in the interests of justice:
- Conduct a hearing to determine if the defendant is eligible for mental health diversion, and if so, grant diversion, as specified; or
- Dismiss the charges against the defendant, as specified.
- Provides that if the court deems the defendant eligible for diversion, it shall grant diversion 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.
- States that if the court finds the defendant ineligible for mental health diversion, or if diversion is terminated, 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:
- Order modification of the treatment plan in accordance with a recommendation from the treatment provider;
- Refer the defendant to assisted outpatient treatment under Laura's Law, as specified. A referral for Assisted Outpatient Treatment may occur only in a county where Laura's Law services are available, and the agency agrees to accept responsibility for treatment of the defendant, as specified; or,
- Refer the defendant to the county conservatorship investigator for the county of commitment for possible Lanterman Prentis Short (LPS) conservatorship proceedings for the defendant, as specified.
- Provides that if at any time after a finding of mental incompetence, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the forseeable future, the director of the DSH or the treatment facility will have the defendant returned to the committing court, as specified.
COMMENTS
According to the Author
"In 2018, the Council of State Governments Justice Center (CSG) convened an advisory group of experts to identify system improvements to competency to stand trial procedures. Among its ten evidence-based strategies to decrease referrals to state hospitals, the group recommended that states limit the use of competency restoration to cases that are too serious to warrant dismissal or diversion.
"In 2022, consistent with CSG's suggested recommendations, the Committee on the Revision of the Penal Code (CRPC) recommended that judges be required to determine whether restoration to competency is in the interests of justice, applying a presumption against restoration for nonviolent offenses. To limit the reliance on restoration of competency to only cases where restoration would be necessary and productive, CRPC further recommended that court-appointed mental health experts opine whether a person found incompetent to stand trial has a substantial probability of attaining competency within the required time frame and to evaluate their eligibility for mental health diversion.
"The problem with existing law is that it does not authorize the court to order the mental health expert to offer an opinion regarding the defendant's eligibility for diversion or whether the defendant is likely to attain competency after treatment. Under existing law, an individual must receive substantive competency restoration services even when not in the interest of justice to do so, where the person is unlikely to be restored, or where other treatment options would be more effective.
"The State's existing competency restoration process delivers quick prosecution-driven outcomes rather than continuing treatment and care. AB 1584 aligns with recommendations from CSG and CRPC by giving judges the discretion to determine the most appropriate response to a finding of incompetency, allowing for quicker determinations of eligibility for mental health diversion, creating earlier off-ramps from state hospital waitlists, and reducing the number of experts needed to complete what can be done by one person."
Arguments in Support
According to the California Public Defenders Association, a co-sponsor of this bill, "AB 1584 would amend provisions of the Penal Code to encourage timely access to mental health treatment and evidence-based outcomes for individuals who are incompetent to stand trial.
"A person is incompetent to stand trial if their mental health condition prevents them from understanding the proceedings against them or assisting in their defense in a rational manner. Those who are determined to be incompetent to stand trial must be committed to a facility that will promote their "speedy restoration to mental competence" or placed on outpatient status.
"Although outpatient status is permitted, it is rarely ordered. Unlike most civil commitment schemes that require treatment in the least restrictive placement, the majority of individuals who are found incompetent to stand trial and committed to restoration services are funneled to our State's most restrictive and most costly State hospital beds. And because these beds are scarce, people wait months prior to placement, suffering with symptoms of unmanaged mental illness while in the confines of a jail cell.
"The prolonged confinement of these vulnerable people not only violates due process, it violates fundamental principles of human decency. No one benefits from existing procedures – not the State, the public, nor the system-impacted person. At the end of this lengthy, costly, and often dehumanizing process, most are released to the exact same circumstances that led to their incarceration. According to Dr. Katherine Warburton, the Medical Director of the California Department of State Hospitals, these people 'often end up worse off than where they started.'
"In 2021, this State enacted legislation reforming California's competency provisions for individuals charged with misdemeanors. SB 317 eliminated competency restoration and required courts to consider mental health diversion instead. For those not suitable for diversion, the statute allowed courts to refer the individual for Assisted Outpatient Treatment (AOT) or a conservatorship.
"Unfortunately, SB 317 applies to only a segment of system-involved individuals, with other low-level felony offenders still among the hundreds of individuals on the state hospital's 1400-person waitlist. By the time these people are 'restored' to competency, they, like their misdemeanor counterparts prior to SB 317, have reached their maximum sentence, or have far surpassed the amount of time they would have served if not for their mental illness….
"Ab 1584 prioritizes treatment over incarceration, it adopts evidenced-based solutions over existing failed approaches, and it aligns with recommendations from subject-matter experts to promote prompt and fair resolutions."
Arguments in Opposition
According to the San Diego Deputy District Attorneys Association, "This bill devalues the rights of victims of crimes to have their crimes addressed in court and will incentivize malingering by defendants to avoid accountability.
"Current law provides that all felony defendants who are found incompetent have two years to be restored to competency. Statistics compiled by the Department of State Hospitals found that over 66% of defendants who were initially found to be incompetent to stand trial (IST) were restored to competency. (Incompetent to Stand Trial Solutions Workgroup – Report of Recommended Solutions November 2021 p11). Unfortunately, AB1584 creates a 'get out of jail free card' for those that are mentally incompetent who commit robbery, assault causing great bodily injury, criminal threat, arson, distribution of fentanyl or hate crimes. AB 1584 allows individuals who would be restored to competency to bypass the criminal justice system based upon their temporary mental status.
"Consider that recently in San Diego, one woman attacked another woman breaking her orbital bone while yelling racial epithets. The attacker was on probation for a prior felony assault where she had been found competent and pled guilty. In the recent hate crime attack she found incompetent. Instead of commencing restoration of the attacker, AB1584 would require the People to rebut a presumption that the court should skip restoration and instead divert or dismiss the case against this racist and violent woman and ignore the rights of the victim of this hate crime.
"Furthermore, AB1584 provides the court with absolutely no guidance on how to approach determining whether the presumption has been overcome. Instead AB1584 lists factors without indicating whether those factors favor rebuttal of the presumption or support the presumption. For example, if a judge believes a case is factually strong, does that rebut the presumptions in favor of diversion/dismissal? AB1584 creates an impossible burden for the prosecution to overcome the presumption because it is vague.
"AB1584 incentivizes defendants to malinger (exaggerate or create mental health symptoms) in the hopes of manipulating an evaluator because of the benefits. The Department of State Hospitals has estimated that at least seventeen percent of individuals evaluated for competency malinger. By incentivizing defendants to appear incompetent, AB1584 has the potentially to greatly increase number of defendants malingering and thereby the workload of the professionals that conduct the evaluations. Additionally, because of the long-term ramifications of a finding of incompetency, the People will be forced to hire independent evaluators that test for malingering. AB1584 will dramatically increase the cost of the evaluations.
"While we strongly believe in providing appropriate mental health care to all individuals within the criminal justice system, this bill does not guarantee those services to mentally ill defendants and ignores victims' rights and public safety."
FISCAL COMMENTS
According to the Assembly Committee on Appropriations:
- Costs to the courts (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount. Judicial Council was unable to provide a precise cost estimate but reported costs to fulfill the mental health evaluators' duties under this bill would be significant. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund.
- Minor and absorbable costs (General Fund) reported by the Department of State Hospitals (DSH). DSH may also experience long-term savings to the extent this bill reduces the number of defendants who must be treated in a state hospital, though potential savings are uncertain due to the many factors at play in the system.
- Possibly reimbursable costs (local funds, General Fund) of an unknown amount annually to county behavioral health departments for mental health diversion. To the extent this bill results in more defendants who participate in mental health diversion, county behavioral health departments would incur some costs in providing those defendants with mental health services. Actual costs depend on the number of eligible defendants and discretion of individual judges to grant mental health diversion. Costs to the General Fund will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
VOTES
ASM PUBLIC SAFETY: 6-2-0
YES: Jones-Sawyer, Bonta, Bryan, Ortega, Santiago, Zbur
NO: Alanis, Lackey
ASM APPROPRIATIONS: 11-4-1
YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega
NO: Megan Dahle, Dixon, Mathis, Sanchez
ABS, ABST OR NV: Robert Rivas
UPDATED
VERSION: April 20, 2023
CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0000645
Date of Hearing: May 17, 2023
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Chris Holden, Chair
ABPCA Bill Id:AB 1584
Author:(Weber) – As Amended Ver:April 20, 2023
Policy Committee: | Public Safety | Vote: | 6 - 2 |
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill makes changes to the existing mental competency system for criminal defendants, including requiring a court to determine whether restoring a felony defendant to competency is in the interests of justice when the defendant has been deemed incompetent to stand trial.
Specifically, this bill:
- States that if the defendant or defense counsel objects to an evaluation of mental incompetence, then two evaluators must be appointed, but only upon the request of defense counsel.
- Requires the report of the mental health expert evaluating the defendant to include the expert’s opinion about whether the defendant will attain competency in the foreseeable future, in addition to topics already required by law. If requested by the defense, the expert must also opine on whether the defendant is eligible for mental health diversion.
- Sets a 30-day deadline for submission of the evaluator’s report, unless waived by the defendant or unless the court finds good cause for an extension.
- Allows the court to determine the issue of competency based on the reports; however, if either party objects to the reports and requests a hearing, the court must hold a hearing.
- Provides that a defendant charged with a felony can waive the right to a jury trial on the issue of competency, in which case the hearing shall be heard by the court.
- Requires the court to suspend the proceedings and determine whether restoring the defendant to competence is in the interests of justice, if the defendant is charged with an offense that is eligible for mental health diversion and has been found incompetent to stand trial.
- Provides that if the court finds that restoring a defendant to competence is in the interests of justice or if the defendant is charged with an offense making them ineligible for mental health diversion, the proceedings shall be suspended until the person becomes mentally competent.
- Authorizes the court to grant mental health diversion or dismiss the charges against the defendant if the court determines that restoration of competency is not in the interests of justice.
- Provides that if the court deems the defendant eligible for diversion, it shall grant diversion for a period of time specified by law.
- States that if the court finds the defendant ineligible for mental health diversion, or if diversion is terminated, the court may, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether to order modification of the treatment plan, refer the defendant to assisted outpatient treatment, or refer the defendant to the county conservatorship investigator.
FISCAL EFFECT:
- Costs to the courts (Trial Court Trust Fund, General Fund) of an unknown but potentially significant amount. Judicial Council was unable to provide a precise cost estimate but reported costs to fulfill the mental health evaluators’ duties under this bill would be significant. Although courts are not funded on the basis of workload, increased pressure on the Trial Court Trust Fund may create a need for increased funding for courts from the General Fund.
- Minor and absorbable costs (General Fund) reported by the Department of State Hospitals (DSH). DSH may also experience long-term savings to the extent this bill reduces the number of defendants who must be treated in a state hospital, though potential savings are uncertain due to the many factors at play in the system.
- Possibly reimbursable costs (local funds, General Fund) of an unknown amount annually to county behavioral health departments for mental health diversion. To the extent this bill results in more defendants who participate in mental health diversion, county behavioral health departments would incur some costs in providing those defendants with mental health services. Actual costs depend on the number of eligible defendants and discretion of individual judges to grant mental health diversion. Costs to the General Fund will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
COMMENTS:
- Author’s Statement. According to the author:
The problem with existing law is that it does not authorize the court to order the mental health expert to offer an opinion regarding the defendant’s eligibility for diversion or whether the defendant is likely to attain competency after treatment. Under existing law, an individual must receive substantive competency restoration services even when not in the interest of justice to do so, where the person is unlikely to be restored, or where other treatment options would be more effective.
The State’s existing competency restoration process delivers quick prosecution-driven outcomes rather than continuing treatment and care. AB 1584 aligns with recommendations from [the Council of State Governments] and [the Committee on Revision of the Penal Code] by giving judges the discretion to determine the most appropriate response to a finding of incompetency, allowing for quicker determinations of eligibility for mental health diversion, creating earlier off-ramps from state hospital waitlists, and reducing the number of experts needed to complete what can be done by one person.
- Background. State and federal law require that a person charged with a crime must be mentally competent enough to help with their own defense. If a defendant has been deemed mentally incompetent, a trial may not proceed against them. The Penal Code states that someone is mentally incompetent to stand trial “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” Current law requires a court to initiate competency proceedings to determine whether a defendant is competent to stand trial. If a defendant is deemed incompetent, the criminal proceedings are suspended and the defendant is referred to DSH or another treatment facility in an attempt to regain competency so the criminal charges can proceed.
In practice, as detailed in the analysis of this bill by the Assembly Committee on Public Safety, the competency system is plagued by delays and significant waitlists for state hospital placements, produces questionable benefits to public safety, and, in many cases, does not adequately address the mental health needs of individual defendants. The Committee on Revision of the Penal Code (CPRC) recommended a number of significant changes to the current competency system in its 2022 annual report. This bill codifies some of CPRC’s recommendations. First, the bill requires mental health experts to return competency evaluations within 30 days, unless there is good cause to extend the time. Second, this bill requires a mental health expert to evaluate whether there is a substantial likelihood that a defendant will attain competency in the foreseeable future, and whether the defendant is eligible for mental health diversion, if the latter opinion is requested by the defense. Through this provision, the bill provides an alternative pathway for treatment for incompetent defendants, outside the state hospital system. Finally, this bill requires a judge to determine whether restoration to competency is in the interests of justice. According to CPRC:
Giving judges the discretion to determine what is the most appropriate response to a finding of incompetency is a key step to improving public safety and improving long-term outcomes for people with serious mental health issues. Improving the efficiency and scope of the evaluation process will also bring predictability to a discrete part of the process and help connect people to appropriate treatment sooner.
By allowing courts more discretion about how to adjudicate cases against mentally incompetent defendants and providing different treatment options for defendants who may be restored to competency, this bill aims to alleviate some of the pressure on the existing competency system while still serving the interests of justice.
Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081
Date of Hearing:
Chief Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 1584
Author:(Weber) – As Amended Ver:March 16, 2023
As Proposed to be Amended in Committee
SUMMARY:
Requires the court to determine whether restoration to competency is in the interests of justice when a defendant in a felony case has been deemed incompetent to stand trial (IST). Specifically, this bill:
- States that if the defendant or defense counsel objects to an evaluation of mental incompetence, then two evaluators must be appointed, but only upon the request of defense counsel.
- Requires the report of the mental health expert evaluating the defendant to include the expert’s opinion in the following matters, in addition to what must already be included:
- Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future; and
- An opinion as to whether the defendant is eligible for mental health diversion, if such an opinion is requested by the defense.
- Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future; and
- Sets a 30-day deadline for submission of the evaluator’s report, unless waived by the defendant or unless the court finds good cause for an extension.
- Provides that any statements made by the defendant during a mental health evaluation for purposes of determining competency are inadmissible in other proceedings. Clarifies that this limitation codifies the holding in Estelle v. Smith (1981) 451 U.S. 454.
- Allows the court to determine the issue of competency based on the reports, if neither party objects to any of the competency reports; however, requires a hearing on the issue if either party objects to the reports and requests a hearing.
- Provides that a defendant charged with a felony can waive the right to a jury trial on the issue of competency, in which case the hearing shall be heard by the court.
- Requires the court, upon a finding that a defendant who is not charged with an offense excluding a person from mental health diversion is found to be IST, to suspend the proceedings and determine whether restoring the person to mental competence is in the interests of justice, as specified.
- Requires the court to consider the following when determining if restoring the defendant to competency is in the interests of justice:
- The relevant circumstances of the charged offense;
- The defendant’s mental health condition and history of treatment;
- Whether the defendant is likely to face incarceration if convicted;
- The likely length of any term of incarceration;
- Whether restoring the person to mental competence will enhance public safety; and,
- Any other relevant considerations.
- The relevant circumstances of the charged offense;
- Provides that if the court finds that restoring a defendant to competence is in the interests of justice, or if the defendant is charged with an offense making them ineligible for mental health diversion, the proceedings shall be suspended until the person becomes mentally competent.
- Authorizes the court to do either of the following when making a determination that restoration of competency is not in the interests of justice:
- Conduct a hearing to determine if the defendant is eligible for mental health diversion, and if so, grant diversion, as specified; or
- Dismiss the charges against the defendant, as specified.
- Conduct a hearing to determine if the defendant is eligible for mental health diversion, and if so, grant diversion, as specified; or
- Provides that if the court deems the defendant eligible for diversion, it shall grant diversion 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.
- States that if the court finds the defendant ineligible for mental health diversion, or if diversion is terminated, 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:
- Order modification of the treatment plan in accordance with a recommendation from the treatment provider;
- Refer the defendant to assisted outpatient treatment under Laura's Law, as specified. A referral for Assisted Outpatient Treatment may occur only in a county where Laura's Law services are available, and the agency agrees to accept responsibility for treatment of the defendant, as specified; or,
- Refer the defendant to the county conservatorship investigator for the county of commitment for possible Lanterman Prentis Short (LPS) conservatorship proceedings for the defendant, as specified.
- Provides that if at any time after a finding of mental incompetence, the court finds that there is no substantial likelihood that the defendant will attain mental competence in the forseeable future, the director of the DSH or the treatment facility will have the defendant returned to the committing court, as specified.
- Makes conforming changes to the mental health diversion provisions.
EXISTING LAW:
- States that a person cannot be tried or adjudged to punishment or have their probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. (Pen. Code, § 1367, subd. (a).)
- Requires, when counsel has declared a doubt as to the defendant’s competence, the court to hold a hearing determine whether the defendant is IST. (Pen. Code, § 1368, subd. (b).)
- Provides that, except as provided, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of whether the defendant is IST is determined. (Pen. Code, § 1368, subd. (c).)
- Requires the court to appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. (Pen. Code, § 1369, subd. (a)(1).)
- Provides that if the defendant or defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution. (Pen. Code, § 1369, subd. (a)(1).)
- Requires the examining psychologist or psychiatrists to evaluate: the nature of the defendant’s mental disorder, if any; the defendant’s ability or inability to understand the nature of the proceedings or the defendant’s ability to assist counsel in conducting a defense; whether treatment with antipsychotic medication is appropriate. (Pen. Code, § 1369, subd. (a)(2)(A.)
- Provides that if the defendant is found mentally competent, the criminal process shall resume. If the defendant has been found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent. (Pen. Code, § 1370, subd. (a).)
- Specifies how the trial on the issue of mental competency shall proceed. (Pen. Code, § 1369.)
- States that only a court trial is required to determine competency in a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole. (Pen Code, § 1369, subd. (g).)
- Permits, on an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court, in its discretion, to grant pretrial mental health diversion to a defendant if the defendant satisfies the eligibility requirements and the court determines that the defendant is suitable for that diversion. (Pen. Code, § 1001.36, subd. (a).)
- Provides that a defendant is eligible for pretrial mental health diversion if both of the following criteria are met:
- The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia; and
- The defendant’s mental disorder was a significant factor in the commission of the charged offense. (Pen. Code, § 1001.36, subd. (b).)
- The defendant has been diagnosed with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia; and
- States that a defendant may not be placed into a pretrial mental health diversion program for the following offenses:
- Murder or voluntary manslaughter;
- An offense for which a person, if convicted, would be required to register as a sex offender;
- Rape;
- Lewd or lascivious act on a child under 14 years of age;
- Assault with intent to commit rape, sodomy, or oral copulation;
- Commission of rape or sexual penetration in concert with another person;
- Continuous sexual abuse of a child; or,
- Using a weapon of mass destruction, as specified. (Pen. Code, § 1001.36, subd. (d).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “In 2018, the Council of State Governments Justice Center (CSG) convened an advisory group of experts to identify system improvements to competency to stand trial procedures. Among its ten evidence-based strategies to decrease referrals to state hospitals, the group recommended that states limit the use of competency restoration to cases that are too serious to warrant dismissal or diversion.
“In 2022, consistent with CSG’s suggested recommendations, the Committee on the Revision of the Penal Code (CRPC) recommended that judges be required to determine whether restoration to competency is in the interests of justice, applying a presumption against restoration for nonviolent offenses. To limit the reliance on restoration of competency to only cases where restoration would be necessary and productive, CRPC further recommended that court-appointed mental health experts opine whether a person found incompetent to stand trial has a substantial probability of attaining competency within the required time frame and to evaluate their eligibility for mental health diversion.
“The problem with existing law is that it does not authorize the court to order the mental health expert to offer an opinion regarding the defendant’s eligibility for diversion or whether the defendant is likely to attain competency after treatment. Under existing law, an individual must receive substantive competency restoration services even when not in the interest of justice to do so, where the person is unlikely to be restored, or where other treatment options would be more effective.
“The State’s existing competency restoration process delivers quick prosecution-driven outcomes rather than continuing treatment and care. AB 1584 aligns with recommendations from CSG and CRPC by giving judges the discretion to determine the most appropriate response to a finding of incompetency, allowing for quicker determinations of eligibility for mental health diversion, creating earlier off-ramps from state hospital waitlists, and reducing the number of experts needed to complete what can be done by one person.”
- Background on IST Proceedings: Under state and federal law, all individuals who face criminal charges must be mentally competent to help in their defense. A defendant is mentally incompetent to stand trial “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367.) Due process requires the court to initiate a determination of competency on its own motion when substantial evidence exists that the defendant is incompetent. (People v. Pennington (1967) 66 Cal.2d 508, 518.)
When substantial evidence of incompetence exists, the trial court cannot proceed with the case against the defendant without first holding a competency hearing. (People v. Pennington, supra, 66 Cal.2d at 521.) The court must appoint a psychiatrist or licensed psychologist to examine the defendant. If defense counsel opposes a finding on incompetence, the court must appoint two experts: one chosen by the defense, one by the prosecution. (Pen. Code, § 1369, subd. (a).) The examining expert(s) must evaluate the defendant’s alleged mental disorder and the defendant’s ability to understand the proceedings and assist counsel, as well as address whether antipsychotic medication is medically appropriate. (Pen. Code, § 1369, subd. (a).)
Both parties have a right to a jury trial to decide competency. (Pen. Code, § 1369.) A formal trial is not required when jury trial has been waived. (People v. Harris (1993) 14 Cal.App.4th 984.) The burden of proof is on the party seeking a finding of incompetence. (People v. Skeirik (1991) 229 Cal.App.3d 444, 459-460.) Because a defendant is initially considered competent to stand trial (Medina v. California (1992) 505 U.S. 437), usually this means that the defense bears the burden of proof to establish incompetence. Therefore, defense counsel must first present evidence to support mental incompetence. However, if defense counsel does not want to offer evidence to have the defendant declared incompetent, the prosecution may. Each party may offer rebuttal evidence. Final arguments are presented to the court or jury, with the prosecution going first, followed by defense counsel. (Pen. Code, § 1369, subds. (b)-(e).)
If after an examination and a hearing the court finds the defendant IST, the criminal proceedings are suspended and the court shall order the defendant to be referred to the Department of State Hospitals (DSH) or other (inpatient or outpatient) treatment facility for treatment to regain competency in order to be brought back to court to face the charges. (Pen. Code, § 1370, subd. (a).) A treatment facility includes a county jail, if the county board of supervisors, the county mental health director, and the county sheriff, concur and make specified findings. A court can also find that the defendant is eligible for mental health diversion and may grant diversion on that basis. (Pen. Code, §§ 1370 and 1370.01.) Effective July 1, 2023, California law will require that a felony IST be considered for an outpatient treatment program, a community treatment program, or diversion unless the clinical or safety needs of the patient warrant treatment in a DSH facility. (Pen. Code, § 1370, subd. (a)(2)(A)(ii).)
“The state treats the majority of felony ISTs in state hospitals; however, many individuals wait in county jails for many months given the limited number of DSH beds, which has resulted in a waitlist of felony ISTs who have not been admitted to DSH. The treatment provided to felony ISTs—known as ‘competency restoration treatment’—differs from general mental health treatment. The objective of competency restoration treatment is to treat a felony IST until they are competent enough to face their criminal charge, rather than provide comprehensive treatment for an underlying mental health condition.” (See The 2022-23 Budget: Analysis of the Governor’s Major Behavioral Health Proposals (ca.gov) Legislative Analyst’s Office [as of April 12, 2023].)
- Committee on Revision of the Penal Code Recommendations: In its 2022 Annual Report, the Committee recommended modernizing IST proceedings. Specifically, the committee made three recommendations. First the Committee recommended requiring judges to determine whether restoration to competency is in the interests of justice by considering all relevant circumstances of the offense, including the likelihood and length of incarceration if convicted. Next, the committee recommended requiring court-appointed mental health experts to return competency evaluations within 30 days. The final recommendation was requiring a judge to determine, and court-appointed mental health experts to provide an opinion on, whether a person found IST has a substantial probability of attaining competency within the required timeframe. In addition, require the court-appointed mental health expert to evaluate their suitability for mental health diversion. (Annual Report and Recommendations, Committee on Revision of the Penal Code, 2022, p. 48 http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2022.pdf. [as of April 10, 2023].)
This bill implements some of those recommendations.
The first recommendation by the Committee which this bill would implement is requiring mental health experts to return competency evaluations within 30 days, unless there is good cause to extend the time.
While most would agree that an individual should not languish in jail while awaiting a competency assessment, it is unclear whether establishing a 30-day deadline in law is implementable. Are the current delays due in part to a lack of mental health experts available to perform the evaluations? If so, this bill does not address that. This bill also does not define good cause. If the unavailability of an evaluator constitutes good cause, then this remedy, will not solve the underlying problem.
Next, this bill would address the Committee’s recommendation of requiring the mental health expert evaluating a person’s competence to stand trial to also evaluate whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future, and whether the defendant is eligible for mental health diversion, if the latter opinion is requested by the defense. Arguably, given the long delays and insufficient resources statewide to treat persons for restoration to competency, it make sense to consider whether to use those resources on a person who an expert does not think will attain competency in the foreseeable future.
Finally, this bill would require judges to determine whether, for a person deemed IST, restoration to competency is in the interests of justice. In doing so, the judge shall consider: the relevant circumstances of the charged offense; the defendant’s mental health condition and history of treatment; whether the defendant is likely to face incarceration if convicted; the potential length of any term of incarceration; whether restoring the person to mental competence will enhance public safety; and, any other relevant considerations.[1]
- Recent IST Litigation: As noted by the Committee on Revision of the Penal Code, “this issue has been the focus of intense attention and litigation in California because of delays in admitting people to the state hospital for restoration to competency.” In the last 10 years, the number of people found incompetent to stand trial in California has increased significantly, far outpacing the stateʼs ability to provide timely services in response. (According to DSH data from August 2022, over 1700 people declared IST were awaiting transfer to a state hospital or other medical facility for treatment. The average wait time for transfer is now five months. (Annual Report and Recommendations, supra, p. 50.)
The state is under a court order to reduce the time it takes to admit someone to the state hospital to restore them to competency. (See Stiavetti v. Clendenin (2021) 65 Cal.App.5th 691.) In that case, the appellate court held that the long waitlist for competency restoration treatment violates the due process rights of people found to be IST. (Id. at p. 737.) The Court of Appeal ordered that DSH must begin substantive restoration services within 28 days of being placed on the list. (Id. at p. 730.) However, the courtʼs order is being implemented in phases, allowing DSH until February 2024 to implement the 28-day timeline. If DSH is unable to meet these specified requirements, the department potentially could be subject to substantial fines or placed under federal receivership. (See The 2022-23 Budget: Analysis of the Governor’s Major Behavioral Health Proposals (ca.gov), Legislative Analyst’s Office, [as of April 12, 2023].)
Arguably, this bill would alleviate some of the pressures to comply with these timelines by allowing the court to determine that it is not in the interests of justice to restore some felony ISTs to competency, and instead to grant them diversion or to dismiss the charges. - Mental Health Diversion: Existing law permits pretrial diversion programs. (Pen. Code, §1001.) Pre-trial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. (Pen. Code, §§ 1001.1, 1001.3.) The defendant must successfully complete a program or other conditions imposed by the court. If a defendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that they have never been arrested or charged for the diverted offense. (Pen. Code, §§ 1001.7, 1001.9.)
In order to be eligible for pretrial mental health diversion, the defendant must suffer from a mental disorder that played a significant role in the commission of the charged offense, and in the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment. (Pen. Code, § 1001.36.) The defendant must consent to diversion, waive their right to a speedy trial, and must agree to comply with treatment as a condition of diversion. (Ibid.)
As noted above, consistent with the recommendation of the Committee on the Revision of the Penal Code, this bill would require the mental health expert evaluating the defendant on the issue of competence to also provide an opinion on eligibility for mental health diversion, thereby saving potential resources in the form of a subsequent evaluation.
In addition, this bill would require the court to consider placing a defendant on mental health diversion in situations where the court determines that restoring the person to competency is not in the interests of justice. This alternative appears to be consistent with legislation implemented last year which would require, starting July 1, 2023, that a felony IST be considered for a less restrictive program than DHS, including diversion, unless the clinical or safety needs of the patient warrant treatment in a DSH facility. (See Pen. Code, § 1370, subd. (a)(2)(A)(ii).)
- Argument in Support: According to the California Public Defenders Association, a co-sponsor of this bill, “AB 1584 would amend provisions of the Penal Code to encourage timely access to mental health treatment and evidence-based outcomes for individuals who are incompetent to stand trial.
“A person is incompetent to stand trial if their mental health condition prevents them from understanding the proceedings against them or assisting in their defense in a rational manner. Those who are determined to be incompetent to stand trial must be committed to a facility that will promote their “speedy restoration to mental competence” or placed on outpatient status.
“Although outpatient status is permitted, it is rarely ordered. Unlike most civil commitment schemes that require treatment in the least restrictive placement, the majority of individuals who are found incompetent to stand trial and committed to restoration services are funneled to our State’s most restrictive and most costly State hospital beds. And because these beds are scarce, people wait months prior to placement, suffering with symptoms of unmanaged mental illness while in the confines of a jail cell.
“The prolonged confinement of these vulnerable people not only violates due process, it violates fundamental principles of human decency. No one benefits from existing procedures – not the State, the public, nor the system-impacted person. At the end of this lengthy, costly, and often dehumanizing process, most are released to the exact same circumstances that led to their incarceration. According to Dr. Katherine Warburton, the Medical Director of the California Department of State Hospitals, these people ‘often end up worse off than where they started.’
“In 2021, this State enacted legislation reforming California’s competency provisions for individuals charged with misdemeanors. SB 317 eliminated competency restoration and required courts to consider mental health diversion instead. For those not suitable for diversion, the statute allowed courts to refer the individual for Assisted Outpatient Treatment (AOT) or a conservatorship.
“Unfortunately, SB 317 applies to only a segment of system-involved individuals, with other low-level felony offenders still among the hundreds of individuals on the state hospital’s 1400-person waitlist. By the time these people are ‘restored’ to competency, they, like their misdemeanor counterparts prior to SB 317, have reached their maximum sentence, or have far surpassed the amount of time they would have served if not for their mental illness….
“Ab 1584 prioritizes treatment over incarceration, it adopts evidenced-based solutions over existing failed approaches, and it aligns with recommendations from subject-matter experts to promote prompt and fair resolutions.”
- Argument in Opposition: According to the San Diego Deputy District Attorneys Association, “This bill devalues the rights of victims of crimes to have their crimes addressed in court and will incentivize malingering by defendants to avoid accountability.
“Current law provides that all felony defendants who are found incompetent have two years to be restored to competency. Statistics compiled by the Department of State Hospitals found that over 66% of defendants who were initially found to be incompetent to stand trial (IST) were restored to competency. (Incompetent to Stand Trial Solutions Workgroup – Report of Recommended Solutions November 2021 p11). Unfortunately, AB1584 creates a ‘get out of jail free card’ for those that are mentally incompetent who commit robbery, assault causing great bodily injury, criminal threat, arson, distribution of fentanyl or hate crimes. AB 1584 allows individuals who would be restored to competency to bypass the criminal justice system based upon their temporary mental status.
“Consider that recently in San Diego, one woman attacked another woman breaking her orbital bone while yelling racial epithets. The attacker was on probation for a prior felony assault where she had been found competent and pled guilty. In the recent hate crime attack she found incompetent. Instead of commencing restoration of the attacker, AB1584 would require the People to rebut a presumption that the court should skip restoration and instead divert or dismiss the case against this racist and violent woman and ignore the rights of the victim of this hate crime.
“Furthermore, AB1584 provides the court with absolutely no guidance on how to approach determining whether the presumption has been overcome. Instead AB1584 lists factors without indicating whether those factors favor rebuttal of the presumption or support the presumption. For example, if a judge believes a case is factually strong, does that rebut the presumptions in favor of diversion/dismissal? AB1584 creates an impossible burden for the prosecution to overcome the presumption because it is vague.
“AB1584 incentivizes defendants to malinger (exaggerate or create mental health symptoms) in the hopes of manipulating an evaluator because of the benefits. The Department of State Hospitals has estimated that at least seventeen percent of individuals evaluated for competency malinger. By incentivizing defendants to appear incompetent, AB1584 has the potentially to greatly increase number of defendants malingering and thereby the workload of the professionals that conduct the evaluations. Additionally, because of the long-term ramifications of a finding of incompetency, the People will be forced to hire independent evaluators that test for malingering. AB1584 will dramatically increase the cost of the evaluations.
“While we strongly believe in providing appropriate mental health care to all individuals within the criminal justice system, this bill does not guarantee those services to mentally ill defendants and ignores victims’ rights and public safety.” - Related Legislation: SB 349 (Roth), would provide that a certificate of restoration for a defendant who was found incompetent to stand trial shall apply to all cases pending against the defendant at the time of restoration. SB 349 is pending in the Senate Appropriations Committee.
- Prior Legislation:
- AB 1630 (Weber), of the 2021-2022 Legislative Session, would have shifted the burden of proof to the prosecution to prove a finding of competence to stand trial when a court-appointed psychiatrist or licensed psychologist indicates that the defendant is incompetent. AB 1630 was held in the Senate Appropriations Committee.
- SB 317 (Stern), Chapter 599, Statutes of 2021, revised the process by which a person may be found IST on a misdemeanor, including eliminating competency restoration proceedings in misdemeanor cases.
- AB 1810 (Committee on Budget), Chapter 34, Statutes of 2018, specified that when a defendant is determined to be IST, the court can find that they are an appropriate candidate for mental health diversion.
- AB 1214 (Stone), Chapter 991, Statutes of 2018, revised the procedures to determine the mental competence of a juvenile charged with a crime.
- AB 1630 (Weber), of the 2021-2022 Legislative Session, would have shifted the burden of proof to the prosecution to prove a finding of competence to stand trial when a court-appointed psychiatrist or licensed psychologist indicates that the defendant is incompetent. AB 1630 was held in the Senate Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
ACLU California Action (Co-Sponsor)
California Public Defenders Association (Co-Sponsor)
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Initiate Justice
Opposition
California District Attorneys Association
California State Sheriffs' Association
San Diegans Against Crime
San Diego Deputy District Attorneys Association
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744
As introduced, this bill would also have created a rebuttable presumption that it was not in the interests of justice to restore the defendant to competency if the defendant was charged with a wobbler offense, an offense punishable pursuant to criminal justice realignment, to Penal Code section 1170(h) offenses, wobbler offenses, robbery or assault with a deadly weapon other than a firearm or assault by means of force likely to produce great bodily injury. The committee amendments remove this rebuttable presumption. ↑
Discussed in Hearing
59SEC
Senate Standing Committee on Appropriations
21MIN
Senate Standing Committee on Public Safety
21MIN
Assembly Standing Committee on Public Safety
Bill Author
Bill Co-Author(s):