(1)Existing law, the Lanterman-Petris-Short (LPS) Act, authorizes the involuntary commitment and treatment of a person, when the person, as a result of a mental health disorder, is a danger to themselves or others, or is gravely disabled. For the purposes of these provisions, existing law defines gravely disabled as a condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care.

Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent, and establishes a process by which a defendants mental competency is evaluated.

This bill would prohibit a court court, for purposes of LPS conservatorship, from determining a persons ability to provide for their basic personal needs based solely on the fact that the person has temporary access to those basic personal needs while incarcerated. The bill would also authorize a district attorney to be present and represent public safety interests at any hearing to determine whether an individual is gravely disabled for purposes of the LPS Act.

Existing law requires the court to determine the most appropriate placement for a conservatee who is gravely disabled, as defined. Existing law requires the officer providing conservatorship investigation to investigate all available alternatives to conservatorship, as applicable, and to render to the court a comprehensive, written report of the investigation prior to the hearing, as specified.

This bill would authorize the district attorney to review all filed documents regarding the investigation, initiation, termination, or modification of, and to be present and represent public safety interests at all hearings that consider, a conservatorship of a person who is gravely disabled, as defined by being found mentally incompetent and meeting the above-described conditions, to provide input to the court about appropriate placement or interim placement by the public conservator. The bill would require a copy of the conservatorship investigation report to be transmitted to the district attorney in a specified context. if the investigation was initiated as part of a determination of mental competence for trial. The bill would authorize the district attorney, if the individual has been appointed a conservator under specified provisions, to challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. The bill would prohibit the district attorney from using the information contained in these reports in subsequent criminal proceedings, except as specified. To the extent the bill imposes a higher level of service on county agencies that prepare and transmit conservatorship investigation reports and on a district attorney to receive those reports, the bill would impose a state-mandated local program.

This bill would authorize a county with a population size of 750,000 or greater to consider prioritizing the placement of specified conservatees in a state hospital run by the State Department of State Hospitals if at least 40 of those conservatees are waiting for placement in a state hospital. The bill would also authorize the placement to be on an interim basis at a county detention facility pending acceptance into a facility that achieves the purposes of treatment of the conservatee and protection of the public. The bill would require the conservatee to receive treatment services in accordance with the conservatorship plan within the detention facility pending permanent placement and would require the court to review the conservators placement efforts every 60 calendar days.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

(1)Existing law, the Lanterman-Petris-Short (LPS) Act, authorizes the involuntary commitment and treatment of a person, when the person, as a result of a mental health disorder, is a danger to themselves or others, or is gravely disabled. For the purposes of these provisions, existing law defines gravely disabled as a condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care.

Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent, and establishes a process by which a defendants mental competency is evaluated.

Existing law also defines gravely disabled under the LPS Act to mean an individual who is found to be mentally incompetent pursuant to the above-described process and for which specified conditions are met, including, among others, information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person, there has been a finding of probable cause, and the person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.

This bill would require the condition of whether the person represents a substantial danger of physical harm to be evaluated based upon the persons ability to be nonviolent outside of an incarcerated setting, as specified.

(2)Existing law authorizes the appointment of a conservator for a person who is gravely disabled or impaired by chronic alcoholism. Existing law requires the court to determine the most appropriate placement for a conservatee who is gravely disabled, as defined. Existing law requires the officer providing conservatorship investigation to investigate all available alternatives to conservatorship, as applicable, and to render to the court a comprehensive, written report of the investigation prior to the hearing, as specified.

This bill would authorize the district attorney to review all filed documents regarding the investigation, initiation, termination, or modification of, and to be present and represent public safety interests at all hearings that consider, a conservatorship of a person who is gravely disabled, as defined by being found mentally incompetent and meeting the above-described conditions, to provide input to the court about appropriate placement or interim placement by the public conservator. The bill would require a copy of the conservatorship investigation report to be transmitted to the district attorney in a specified context. The bill would authorize the district attorney attorney, if the individual has been appointed a conservator under specified provisions, to challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. To the extent the bill imposes a higher level of service on county agencies that prepare and transmit conservatorship investigation reports and on a district attorney to receive those reports, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

(1)Existing law, the Lanterman-Petris-Short (LPS) Act, authorizes the involuntary commitment and treatment of a person, when the person, as a result of a mental health disorder, is a danger to themselves or others, or is gravely disabled. For the purposes of these provisions, existing law defines gravely disabled as a condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care.

This bill would require this definition of gravely disabled to be evaluated based upon a persons ability to provide for those basic personal needs outside of an incarcerated setting, as specified.

Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent, and establishes a process by which a defendants mental competency is evaluated.

Existing law also defines gravely disabled under the LPS Act to mean an individual who is found to be mentally incompetent pursuant to the above-described process and for which specified conditions are met, including, among others, information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person, there has been a finding of probable cause, and the person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.

This bill would require the condition of whether the person represents a substantial danger of physical harm to be evaluated based upon the persons ability to be nonviolent outside of an incarcerated setting, as specified.

(2)Existing law authorizes the appointment of a conservator for a person who is gravely disabled or impaired by chronic alcoholism. Existing law requires the court to determine the most appropriate placement for a conservatee who is gravely disabled, as defined. Existing law requires the officer providing conservatorship investigation to investigate all available alternatives to conservatorship, as applicable, and to render to the court a comprehensive, written report of the investigation prior to the hearing, as specified.

This bill would authorize the district attorney to review all filed documents regarding the investigation, initiation, termination, or modification of, and to be present and represent public safety interests at all hearings that consider, a conservatorship of a person who is gravely disabled, as defined by being found mentally incompetent and meeting the above-described conditions, to provide input to the court about appropriate placement or interim placement by the public conservator. The bill would require a copy of the conservatorship investigation report to be transmitted to the district attorney in a specified context. The bill would authorize the district attorney to challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. To the extent the bill imposes a higher level of service on county agencies that prepare and transmit conservatorship investigation reports and on a district attorney to receive those reports, the bill would impose a state-mandated local program.

This bill would require the State Department of State Hospitals to prioritize the placement of conservatees who are gravely disabled due to being found mentally incompetent and meeting the above-described conditions over the placement of conservatees who are gravely disabled due to being unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

SENATE COMMITTEE ON

Senator Sabrina Cervantes, Chair

2025 - 2026 Regular Session

SB 1221 (Stern) - Lanterman-Petris-Short Act: conservatorships

Bill Summary:

SB 1221 would make various changes to the process for Lanterman-Petris-Short Act (LPS) conservatorships.

Fiscal Impact:

• Unknown costs to county agencies for administration. Costs would be potentially reimbursable by the state, subject to a determination by the Commission on State Mandates.
• Unknown, potential cost pressures to the courts related to additional duties required in this measure (Trial Court Trust Fund, General Fund). While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.

Background:

California’s LPS Act provides for involuntary detentions of individuals for varying lengths of time for the purpose of evaluation and treatment. The LPS Act defines “gravely disabled” to mean any of the following, as applicable:

• A condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care.
• A condition in which a person has been found mentally incompetent, as specified under the Penal Code, and all of the following facts exist:
  • The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person.
  • There has been a finding of probable cause on a complaint, a preliminary examination, or a grand jury indictment, as specified, and the complaint, indictment, or information has not been dismissed.
  • As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against them and to assist counsel in the conduct of their defense in a rational manner.
  • The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.

The LPS Act also governs a process for conservatorships for persons who are determined to be “gravely disabled.” Current law requires, when ordered by the court, a conservator appointed for a conservatee who is found “gravely disabled” due to a condition in which the person is found mentally incompetent, to place his or her conservatee in a placement that achieves the purposes of treatment of the conservatee and protection of the public. First priority must be placement in a facility that achieves the purposes of treatment of the conservatee and protection of the public. The court must determine the most appropriate placement for the conservatee. The court must also determine those persons to be notified of a change of placement, and additionally require the conservator to notify the district attorney or attorney representing the originating county prior to any change of placement.

Proposed Law:

Specific provisions of the bill would:

• Provide that the district attorney may be present and represent public safety interests at any hearing to determine whether an individual is “gravely disabled” due to a condition in which a person is found mentally incompetent.
• Provide that for purposes of determining whether a person is “gravely disabled,” a court cannot determine a person’s ability to provide for their basic personal needs based solely on the fact that the person has temporary access to those basic personal needs while incarcerated.
• Require that the district attorney must receive a copy of a conservatorship investigation report, under specified circumstances.
• Provide that if an individual who is found “gravely disabled” due to a condition in which the person is found mentally incompetent has been appointed a conservator, the court may alternatively set a new competency hearing, as specified, if the conservatorship investigation includes competency findings by a psychiatrist or psychologist that the person is competent.
• Provide that if an individual who is found “gravely disabled” due to a condition in which the person is found mentally incompetent has been appointed a conservator, the district attorney may challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge; and require that the district attorney must have the burden of proof.
• Provide that for placement of conservatees who are found mentally incompetent, in a county with a population greater than 750,000, a county may consider prioritizing the placement of conservatees in a state hospital run by the State Department of State Hospitals if at least 40 of those conservatees are waiting for placement in a state hospital; provide that placement may also include an interim placement at a county detention facility pending acceptance into a facility that achieves the purposes of treatment of the conservatee and protection of the public; require that a conservatee must receive treatment services in accordance with the conservatorship plan within the detention facility pending permanent placement; and require the court to review the conservator’s placement efforts every 60 calendar days.
• Provide that the district attorney may review all filed documents regarding the investigation, initiation, termination, or modification of, and may be present and represent public safety interests at all hearings that consider, a conservatorship of a person who is gravely disabled due to a condition in which a person is found mentally incompetent, to provide input to the court about appropriate placement or interim placement by the public conservator, without regard to whether any conservatorship is initiated; and prohibit the district attorney from using documents or information obtained from their review in any subsequent criminal proceedings.
• Provide that the district attorney of the county that made the commitment may be present at a hearing to transfer a conservatee, who is gravely disabled due to a condition in which a person is found mentally incompetent, to an alternative placement.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Jesse Arreguín, Chair

2025 - 2026 Regular

Bill No: SB 1221 Hearing Date: April 21, 2026

Subject: Lanterman-Petris-Short Act: conservatorships

HISTORY

Source: California District Attorneys Association

Prior Legislation: SB 820 (Stern), Ch. 330, Stats. of 2025

SB 35 (Umberg), Ch. 283, Stats. of 2023

SB 1187 (Beall), Ch. 1008, Stats. of 2018

Support: California State Association of Psychiatrists; California State Sheriffs’ Association; Los Angeles County District Attorney’s Office; Riverside County District Attorney; San Diego County District Attorney’s Office

Opposition: ACLU California Action; CA Youth Empowerment Network; Cal Voices; California Attorneys for Criminal Justice; California Public Defenders Association; County Behavioral Health Directors Association; Disability Rights California; Justice2Jobs Coalition; La Defensa; Mental Health America of California; Smart Justice California

PURPOSE

The purpose of this bill is to makes various changes to the conservatorship process, including: 1) prohibiting a court from determining a person has the ability to provide for their basic personal needs based on the fact that the person has temporary access to those basic personal needs while incarcerated; 2) requiring the evaluation of whether a person represents a substantial danger of physical harm (as part of the broader determination of whether a person is gravely disabled) to be made based upon their ability to be nonviolent outside of an incarcerated setting; and 3) permitting district attorneys to be present at conservatorship hearings to represent public safety interests, access relevant documents, and challenge the conservator’s placement recommendation.

Existing law requires, if during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, the judge to state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. Requires the court, at the request of the defendant or defendant’s counsel or upon its own motion, to recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. (Pen. Code, § 1368, subd. (a).)

Existing law requires the court, if counsel informs the court that they believe the defendant is or may be mentally incompetent (IST), to order that the question of the defendant’s mental competence is to be determined. Authorizes the court, if counsel informs the court that they believe the defendant is mentally competent, to order a determination by the court of the defendant’s mental competence. (Pen. Code, § 1368, subd. (b).)

Existing law requires all proceedings in the criminal prosecution to be suspended when an inquiry into the present mental competence of the defendant has been commenced by the court until the question of the present mental competence of the defendant has been determined, except as provided. (Pen. Code, § 1368, subd. (c).)

Existing law outlines the process by which the question of mental competence must proceed. (Pen. Code, § 1369.)

Existing law provides that Section 1370 applies to a person who is charged with a felony or alleged to have violated the terms of probation for a felony or mandatory supervision and is incompetent as a result of a mental health disorder. (Pen. Code, § 1367, subd. (b).)

Existing law requires the criminal process to resume, the trial on the offense charged or hearing on the alleged violation to proceed, and judgment to be pronounced if the defendant is mentally competent. (Pen. Code, § 1370, (a)(1)(A).)

Existing law requires the trial, the hearing on the alleged violation, or the judgment to be suspended, if the defendant is found mentally incompetent (and is not charged with an offense that would make the defendant ineligible for mental health diversion). Requires the court to do all of the following: 1) determine whether restoring the person to mental competence is in the interests of justice; 2) if restoring the person to mental competence is in the interests of justice, the court must state its reasons orally on the record and the case shall proceed, as provided; 3) if restoring the person to mental competence is not in the interests of justice, the court must conduct a mental health diversion hearing, and, if the court deems the defendant 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. (Pen. Code, § 1370, subd. (a)(1)(B)(i)-(iii).)

Existing law requires, at the end of two years from the date of commitment (or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter), a defendant who has not recovered mental competence to be returned to the committing court. Requires custody of the defendant to be transferred without delay to the committing county and must remain with the county until further order of the court. Prohibits the court from ordering the defendant returned to the custody of the DSH under the same commitment. (Pen. Code, § 1370, subd. (c)(1).)

Existing law requires the court, whenever a defendant is returned to the court and it appears to the court that the defendant is gravely disabled, as defined (LPS or Murphy conservatorship), to order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant. Requires hearings in the conservatorship proceedings to be held in the superior court in the county that ordered the commitment, and requires the court to transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendant’s counsel of record. Requires the court to notify those parties of the outcome of the conservatorship proceedings. (Pen. Code, § 1370, subd. (c)(3).)

Existing law requires the court, if a change in placement is proposed for a defendant who is committed as a Lanterman-Petris-Short Act (LPS) conservatee or Murphy conservatee, to 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. (Pen. Code, § 1370, subd. (c)(5).)

Existing law provides that the criminal action remains subject to dismissal except for proceedings alleging a violation of mandatory supervision, or in those instances where the defendant has been placed under a Murphy conservatorship. (Pen. Code, § 1370, subd. (d).)

Existing law establishes the LPS Act to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled” for periods of up to 72 hours for evaluation and treatment, or for up-to 14 days and up-to 30 days for additional intensive treatment in “county-designated facilities.” (Welf. & Inst. Code, §§ 5000, et seq.)

Existing law permits a conservator of a person, or the estate, or of both the person and the estate, to be appointed for someone who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism, and who remains gravely disabled after periods of intensive treatment. (Welf. & Inst. Code, § 5350.)

Existing law defines “gravely disabled,” for purposes of evaluating and treating an individual who has been involuntarily detained or for placing an individual in conservatorship, as:

• A condition in which a person, as a result of a mental health disorder, a severe substance use disorder, or a co-occurring mental health disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care (referred to as “standard LPS conservatees”); or,
• A condition in which a person has been found mentally incompetent but can be restored to competence in a state hospital in the interests of justice, or are charged with specified offenses, and all of the following facts exist (referred to as “Murphy conservatees”):
  • The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person;
  • There has been a finding of probable cause on a complaint, a preliminary examination, or a grand jury indictment, and the complaint, indictment, or information has not been dismissed;
  • As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against them and to assist counsel in the conduct of their defense in a rational manner; and,
  • The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.

(Welf. & Inst. Code, § 5008, subds. (h)(1)(A) & (h)(1)(B).)

Existing law defines “designated facility,” “facility designated by the county for evaluation and treatment,” or “facility designated by the county to provide intensive treatment” as a facility that meets designation requirements established by the Department of Health Care Services (DHCS), including, but not limited to:

• Psychiatric health facilities; psychiatric residential treatment facilities; and mental health rehabilitation centers licensed by DHCS, or provider sites certified by either DHCS or a mental health plan to provide crisis stabilization;
• General acute care hospitals; acute psychiatric hospitals; and chemical dependency recovery hospitals licensed by the California Department of Public Health (CDPH); and,
• Hospitals operated by the U.S. Department of Veterans Affairs.

(Welf. & Inst. Code, § 5008, subd. (n)(1)(A)-(H).)

Existing law requires a county district attorney, at any judicial proceeding related to community mental health services, to present allegations that a person is a danger to self or others, or gravely disabled as a result of mental disorder or impairment by chronic alcoholism, unless the board of supervisors, by ordinance or resolution, delegates such duty to the county counsel. (Welf. & Inst. Code, § 5114.)

Existing law requires the officer providing conservatorship investigation to investigate all available alternatives to conservatorship, including, but not limited to, assisted outpatient treatment, and the Community Assistance, Recovery, and Empowerment (CARE) Act and to recommend conservatorship to the court only if no suitable alternatives are available. Requires the officer to render to the court a report prior to the hearing. Requires a copy of the report to be transmitted to the individual who originally recommended conservatorship; to the person or agency, if any, recommended to serve as conservator; and, to the person recommended for conservatorship. Permits the court to receive the report in evidence and consider the contents in rendering its judgment. (Welf. & Inst. Code, § 5354, subd. (a).)

Existing law requires a conservator to place a Murphy conservatee in various settings, including in a placement that achieves the purposes of treatment of the conservatee and protection of the public. (Welf. & Inst. Code, § 5358, subd. (a)(1)(B).)

Existing law requires first priority for a Murphy conservatee to be placement in a facility that achieves the purposes of treatment of the conservatee and protection of the public. Requires the court to determine the most appropriate placement for the conservatee. Requires the court to also determine those persons to be notified of a change of placement, and additionally require the conservator to notify the district attorney or attorney representing the originating county prior to any change of placement. (Welf. & Inst. Code, § 5358, subd. (c)(2).)

This bill provides that for an IST defendant, the evaluation of whether the person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder (as part of the broader determination of whether a person is gravely disabled) must be evaluated based upon the person’s ability to be nonviolent outside of an incarcerated setting. Prohibits the fact that the person has not had an overt act of violence while incarcerated from being a basis to conclude that the person does not represent a substantial danger of physical harm to others.

This bill prohibits a court from determining a person’s ability to provide for their basic personal needs based on the fact that the person has temporary access to those basic personal needs while incarcerated.

This bill adds district attorneys to the list of entities who receive a copy of the conservatorship investigation report required to be submitted to the court, if an investigation was initiated for an IST defendant returned to the court because their competency was not restored.

This bill authorizes the court to receive the conservatorship investigation report in evidence and may read and consider its contents in rendering its judgment. Authorizes the court, if the individual has been appointed a conservator under WIC section 5350, to alternatively set a new competency hearing if the investigation includes competency findings by a psychiatrist or psychologist that the person is competent. Authorizes the district attorney to challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. Specifies that the district attorney has the burden of proof.

This bill authorizes a county with a population greater than 750,000 to consider prioritizing the placement of Murphy conservatees in a DSH hospital if at least 40 of those conservatees are waiting for placement in a state hospital.

This bill permits the district attorney to review all filed documents regarding the investigation, initiation, termination, or modification of, and to be present and represent public safety interests at all hearings that consider, a Murphy conservatorship of a person, to provide input to the court about appropriate placement or interim placement by the public conservator, without regard to whether any conservatorship is initiated.

This bill permits the district attorney of the county that made the commitment to be present at a hearing to transfer a Murphy conservatee to an alternative placement.

This bill permits the district attorney to be present and represent public safety interests at any hearing to determine whether an individual satisfies the requirements of a Murphy conservatorship.

COMMENTS

1. Need For This Bill

According to the author:

SB 1221 was introduced in response to the decision issued in In re Lerke (2024) 107 Cal.App.5th 685. In Lerke, the Fourth Appellate District announced that Murphy conservatees cannot be temporarily housed at a county detention facility pending delivery to DSH. The Lerke decision seriously jeopardized public safety by eliminating the conservator’s ability to house individuals at a county detention facility pending delivery to a DSH or other facility that ensures public safety. Furthermore, victims and the public were distraught, confused, and angry with a system where there was no transparency or representative of public safety present that would explain the process. Within weeks of the Lerke decision, victims, their families, and the public were faced with the prospect of charged murderers, rapists, and arsonists on Murphy conservatorship being released into the community because DSH were not available. Despite a legislatively defined role that provides for district attorneys to represent victims and public safety, they were denied access to these hearings across the state, including in San Diego County. As counties statewide struggled to find placements, weaknesses within the current statutes addressing Murphy conservatees became apparent. 

1. Mental Competency in Criminal Proceedings

The Due Process Clause of the U.S. 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 or is 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, § 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. (b).)

A determination of the defendant’s competency to stand trial is generally decided by a jury. (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 presumed competent to stand trial (Medina v. California (1992) 505 U.S. 437; Pen. Code, § 1369, subd. (c)(3)), this usually means that the defense bears the burden of proof to establish incompetence. As a result, the defense counsel must first present evidence to support a finding of mental incompetence. The defendant’s mental incompetence must proven by a preponderance of the evidence. (Pen. Code, § 1369, subd. (c)(3).)

For defendants charged with a felony, if after an examination and hearing the defendant is found IST, the criminal proceedings are suspended and the court must order the defendant to be referred to the Department of State Hospitals (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), 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. (Pen. Code, § 1370, subd. (a)(1)(B).)

The maximum term of commitment for an IST defendant charged with a felony is two years, however, no later than 90 days prior to the expiration of the defendant’s term of commitment, if the defendant has not regained mental competence must be returned to the committing court and the court is prohibited from ordering the defendant returned to the custody of DSH. (Pen. Code, § 1370, subd. (c)(1).) Upon the defendant’s return to the court, the court must order the conservatorship investigator of the county of commitment to initiate conservatorship proceedings under the LPS Act if it appears to the court that the defendant is gravely disabled. (Pen. Code, § 1370, subd. (c)(3).) With the exception of proceedings alleging a violation of mandatory supervision, or in those instances in which the defendant has been placed under a Murphy conservatorship, the criminal action may be dismissed in the interest of justice. (Pen. Code, § 1370, subd. (d).)

1. LPS Act

Enacted in 1967, the LPS Act governs the involuntary commitment and treatment of gravely disabled individuals through a conservatorship program. Among its many goals are ending the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, providing prompt evaluation and treatment of persons with mental health, guaranteeing and protecting public safety, safeguarding individual rights through judicial review, and providing individualized treatment, supervision, and placement services by a conservatorship program for individuals who are gravely disabled. (Welf. & Inst. Code, § 5001.)

There are two distinct categories of conservatorships under the LPS Act based on the statute’s definition of “gravely disabled”: an LPS conservatorship pursuant to Welfare and Institutions Code section 5008, subdivision (h)(1)(A); and a Murphy conservatorship pursuant to Welfare and Institutions Code section 5008, subdivision (h)(1)(B). For more information on the LPS conservatorship, please see the Senate Health Committee analysis of this bill.

1. Murphy Conservatorship

As noted above, a conservatorship pursuant to Section 5008, subdivision (h)(1)(B), is known as a Murphy conservatorship. Welfare and Institutions Code section 5008, subdivision (h)(1)(B), defines “gravely disabled” as:

A condition in which a person has been found IST and all of the following facts exist:

• The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person;
• There has been a finding of probable cause on a complaint, a preliminary examination, or a grand jury indictment, and the complaint, indictment, or information has not been dismissed;
• As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against them and to assist counsel in the conduct of their defense in a rational manner; and,
• The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.

If a conservatorship is established, a Murphy conservatee must be placed in a placement that achieves the purposes of treatment of the conservatee and protection of the public. (Welf. & Inst. Code, § 5358, subd. (a)(1)(B).) The placement may include a medical, psychiatric, nursing, or other state-licensed facility, or a state hospital, county hospital, hospital operated by the Regents of the University of California, a U.S. government hospital, or other nonmedical facility approved by the DHCS an agency accredited by the department. (Welf. & Inst. Code, § 5358, subd. (a)(2).)

A conservator has the right, if specified in the court order, to require their conservatee to receive treatment related specifically to remedying or preventing the recurrence of the cause of the conservatee being gravely disabled. (Welf. & Inst. Code, § 5358, subd. (b).) First priority must be placement in a facility that achieves the purposes of treatment of the conservatee and protection of the public. (Welf. & Inst. Code, § 5358, subd. (c)(2).) The court must determine the individuals to be notified of a change of placement, and requires the conservator to notify the district attorney or attorney representing the originating county prior to any change of placement. (Ibid.)

The conservator is prohibited from transferring a Murphy conservatee to a less restrictive alternative placement without a hearing and court approval. (Welf. & Inst. Code, § 5358, subd. (d)(1).) The conservator may not transfer the conservatee without providing written notice of the proposed change of placement and the reason therefor to the court, the conservatee’s attorney, the county patient’s rights advocate, the district attorney of the county that made the commitment, and any other persons designated by the court to receive notice. (Welf. & Inst. Code, § 5358, subd. (d)(2).) If any person designated to receive notice objects to the proposed transfer within 10 days after receiving notice, the matter must be set for a further hearing and court approval. (Ibid.)

A Murphy conservatorship automatically terminates after one year unless the conservator successfully petitions for reappointment for a succeeding one-year term. (Welf. & Inst. Code, § 5361, subds. (a), (b).)

1. In re Lerke

This bill was introduced in response to In re Lerke (2024) 107 Cal.App.5th 685, a case involving a Murphy conservatee confined in a county jail while awaiting transfer to the state hospital. Lerke was charged with multiple felony sex offenses, and a month after charges were filed, criminal proceedings were suspended and Lerke was referred for a mental competency examination. He was found IST and committed to the state hospital for competency restoration treatment. Lerke did not regain competency during his two-year commitment and was returned to the county. The day before the criminal court conducted a hearing on his competency, the mental health court established a Murphy conservatorship and ordered his placement at the state hospital. Lerke was held in custody at the county jail until placement in the state hospital was available.

Lerke’s counsel in the criminal case petitioned the criminal court to dismiss the case against him because he has been deemed non-restorable. The court denied the request, finding that the basis for the Murphy conservatorship would no longer exist if the criminal case were dismissed. Counsel in the conservatorship proceeding requested Lerke be transferred to the county psychiatric hospital pending placement at the state hospital. The request was denied.

In response, Lerke filed a habeas petition challenging his confinement in the county jail. He alleged that he was being held in custody on the criminal case beyond the maximum statutory commitment date, in violation of his statutory and constitutional rights. Lerke requested his immediate release, or alternatively, transfer to an appropriate treatment facility.^[1]

The appellate court held:

The criminal court had no legal authority to order Lerke’s continued detention in county jail after his commitment had expired and he was no longer subject to competency restoration treatment. The provisions of Penal Code section 1370 that dictated Lerke’s placement during his competency restoration treatment were no longer applicable.

Nor did the provisions of the Welfare and Institutions Code governing Murphy conservatorships explicitly or implicitly authorize Lerke’s continued confinement in county jail while awaiting a state hospital bed. (In re Lerke (2024) 107 Cal.App.5th 685, 700.)

The court further explained:

Section 5358, subdivision (a)(2) sets forth a complete list of the authorized treatment facilities at which a conservatee may be placed under the LPS Act. The list in subdivision (a)(2) does not include county jail. A “nonmedical facility” is included on the list only if it is “approved by the State Department of Health Care Services or an agency accredited by the State Department of Health Care Services.” (§ 5358, subd. (a)(2).)

…

Our reading of this provision comports with the overall statutory scheme, which is structured to allow an orderly transition from competency proceedings to a Murphy conservatorship—without extending the defendant’s confinement in the county jail beyond the maximum term of commitment for competency restoration. As noted, the law requires that the defendant be returned to the criminal court no later than 90 days before the expiration of the maximum term of commitment. (Pen. Code, § 1370 subd. (c)(1).) This guarantees a 90-day window period for (1) the criminal court to decide whether to release the defendant or direct the initiation of conservatorship proceedings, and (2) the mental health court to order a conservatorship and determine an appropriate placement. Nothing in the statutory scheme contemplates the defendant’s continued confinement in the county jail after the maximum term of commitment for competency restoration has expired.

We also find it significant that a Murphy conservatorship automatically terminates after one year, subject to renewal for additional one-year periods. (§ 5361.) We cannot infer that the Legislature impliedly decided to allow Murphy conservatees to languish in county jail for months or even years at a time while waiting for a proper treatment facility for much or all of their one-year term of conservatorship. (Id. at pp. 701-702.)

1. Treatment Beds in California

According to a 2022 RAND report based on 2021 information, California needs 50.5 inpatient psychiatric beds per 100,000 adults: 26.0 per 100,000 at the acute level and 24.6 per 100,000 at the subacute level, or 7,945 and 7,518 beds, respectively.^[2] At the community residential level, RAND estimated a need of 22.3 beds per 100,000 adults.^[3]

California has a shortfall of approximately 1,971 beds at the acute level (6.4 additional beds required per 100,000 adults) and a shortage of 2,796 beds at the subacute level (9.1 additional beds required per 100,000 adults), or 4,767 subacute and acute beds combined, excluding state hospital beds.^[4] If state hospitals were included in this estimate, the shortage of acute inpatient beds would shrink to 267, and there would be no observable shortage in beds at the subacute level.^[5] Separately, RAND estimated a shortage of 2,963 community-based residential beds.^[6]

Among its recommendations, the report stated:

[The state should] [c]onsider focusing on building or remodeling infrastructure for the most hard-to-place populations. Specific subpopulations appear to contribute disproportionately to bottlenecks in the current system, including an inability to transfer patients with criminal justice involvement from the subacute level of care to community residential settings. Given this, the state might need to consider alternative arrangements for placing such populations, such as community-based and outpatient competency restoration programs. Here, California could learn from other mental health systems across the United States and internationally.^[7]

1. DSH and CalMHSA MOU on DSH Beds

The California Mental Health Services Authority (CalMHSA) is a Joint Powers of Authority formed in 2009 by counties throughout the state “to work on collaborative, multi-county projects that improve behavioral health care for all Californians.” DSH and CalMHSA have an MOU whereby counties reimburse DSH for the use of DSH hospital beds and services, provided pursuant to the LPS Act. The term of the current MOU is July 1, 2025 to June 30, 2027.^[8] The MOU includes LPS bed allocations that were developed using a county-specific methodology based on a combination of population size, behavioral health population adjustment, and historical DSH bed utilization. (Id. at Exh. 5.) The total number of LPS-designated beds allocated for fiscal year 2025-2025 is 581 beds. (Ibid.) Of those 581 beds, the MOU allots 213 beds to Los Angeles County. (Ibid.) Under the terms of the MOU, a county has the discretion to determine which individuals eligible for placement to place in available DSH beds.

1. Effect of This Bill

This bill makes substantial changes to the laws related to conservatorships and raises several policy questions.

Provisions that affect the court’s “gravely disabled” determination

First, this bill provides that for an IST defendant, the evaluation of whether the person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder (as part of the broader determination of whether a person is gravely disabled) must be evaluated based upon the person’s ability to be nonviolent outside of an incarcerated setting. A court is prohibited from concluding that a person does not represent a substantial danger of physical harm to others based on the fact that the person has not had an overt act of violence while incarcerated. Second, this bill prohibits a court from determining that a person has the ability to provide for their basic personal needs based on the fact that the person has temporary access to those basic personal needs while incarcerated.

Is a person’s behavior within a carceral setting relevant to the court’s determination? While it is true that many people may be more inclined to behave while incarcerated, many people are unable or unwilling to do so. The Committee may wish to consider whether this language should be narrowed. For example, it could be amended to read:

5008. (h)(1)(B)(iv) This clause shall be evaluated primarily based upon the person’s ability to be nonviolent outside of an incarcerated setting. The fact that the person has not had an overt act of violence while incarcerated shall not be the sole basis to conclude that the person does not represent a substantial danger of physical harm to others.

Provisions related to the district attorney

This bill authorizes a district attorney to attend several types of civil court proceedings as well as have access to confidential records related to conservatorship proceedings.

Specifically, this bill adds district attorneys to the list of entities who receive a copy of the conservatorship investigation report required to be submitted to the court, if an investigation was initiated for an IST defendant returned to the court because their competency was not restored. This report includes all relevant aspects of the person’s medical, psychological, financial, family, vocational, and social condition, and information obtained from the person’s family members, close friends, social worker, or principal therapist. 

The opposition argues that it is not clear whether or how this information may be subsequently used by a prosecutor. As a result, they argue that this provision will have a chilling effect and result in defense counsel advising clients to hold back information from their therapists.

This bill also permits the district attorney to review all filed documents regarding the investigation, initiation, termination, or modification of, and to be present and represent public safety interests at all hearings that consider, a Murphy conservatorship of a person, to provide input to the court about appropriate placement or interim placement by the public conservator, without regard to whether any conservatorship is initiated. This bill additionally permits the district attorney of the county that made the commitment to be present at a hearing to transfer a Murphy conservatee to an alternative placement. This bill additionally permits the district attorney to be present and represent public safety interests at any hearing to determine whether an individual satisfies the requirements of a Murphy conservatorship.

Finally, this bill authorizes the court to set a new competency hearing if a conservatorship investigation includes competency findings by a psychiatrist or psychologist that the person is competent, and authorizes the district attorney to challenge the recommendation of the public conservator after the conservatorship investigation.

The opponents of this bill assert that permitting a district attorney to participate in these types of civil court proceedings—when the ultimate determinations are outside of the scope of the office’s expertise—is unnecessary and inappropriate. They argue that existing law already provides flexibility with respect to district attorney involvement where appropriate.

Should the district attorney be included in these various proceedings and should they have access to all of the types of private information authorized under the provisions of the bill? If so, should there be some prohibitions on the use of that information by the district attorney? Should the district attorney be able to challenge the recommendation of the public conservator? Have there been widespread issues across the state with public conservators abusing their discretion such that a statutory change is necessary? Should the district attorney be permitted to revisit the competency issue once the statutory timeline on competency restoration has expired under Penal Code section 1370 and a conservatorship has been established (following referral by the court for conservatorship investigation due to the IST defendant’s competency not being restored and the defendant appearing “gravely disabled”)?

Provision related to DSH beds

This bill authorizes a county with a population greater than 750,000 to consider prioritizing the placement of Murphy conservatees in a DSH hospital if at least 40 of those conservatees are waiting for placement in a state hospital.

1. Argument in Support

According to the California District Attorneys Association:

A recent court opinion, In Re Lerke (2024) 107 Cal.App.5th 685 held a Murphy Conservatee could not be detained, even temporarily, in a county detention facility pending a placement becoming available at the Department of State Hospitals. This decision created chaos throughout California. Public Conservators in many counties scrambled to temporarily place defendants charged with (and some convicted of) murder, rape and arson who were conserved on Murphy conservatorships who were held on an interim basis at a county detention facility. The most dangerous incompetent, non-restorable defendants were being quickly moved subject to this legal change without transparency for victims or the public because both the public and the District Attorney were excluded from these proceedings creating fear and distrust amongst the public.

Senate Bill 1221 addresses the issues created by the Lerke decision requiring the Department of State Hospitals to prioritize Murphy conservatorships because they pose a significant and serious risk of harm to the public above other conservatees who have not been found to be currently dangerous. Also, this bill clarifies the District Attorney’s role as an independent voice for public safety during Murphy conservatorship hearings. The District Attorney provides an essential voice for victims and public safety providing information regarding risk and dangerousness to courts to complement the Public Conservator’s investigation and conclusions. considering conservatorships relating to public safety.

SB 1221 addresses a pressing need for individuals who have been conserved with serious criminal conduct pending. This fixes the issues that became apparent to victims and the public after the Lerke decision upended the interim placement for Murphy Conservatees. SB 1221 will ensure that appropriate therapeutic, safe treatment placement is available for defendants who have been conserved on Murphy conservatorships.

1. Argument in Opposition

Smart Justice California writes:

The Lanterman-Petris-Short (LPS) Act carefully balances individual liberty with the need for involuntary treatment by limiting conservatorships to individuals who, as a result of a mental health disorder, are presently a danger to themselves or others or are gravely disabled. SB 1221 shifts the inquiry from current clinical presentation to predictions of future functioning, a change that invites speculation and risks expanding conservatorships beyond their intended scope.

As drafted, the bill restricts qualified mental health experts from considering a person’s lack of violence in a custodial setting as evidence that the individual does not pose a substantial danger of physical harm. This limitation on clinical judgment excludes what may be the most probative evidence of a person’s current risk. Many individuals with severe mental illness spend extended periods in custody (even on minor charges), while awaiting placement in a state hospital, resolution of mental health diversion, or completion of a sentence. An individual’s conduct in custody, including voluntary engagement in treatment, adherence to prescribed medication, and participation in programming can provide meaningful evidence of stability that should be considered in assessing future risk. SB 1221 restricts that consideration.

The bill also creates ambiguity regarding the relevant timeframe for evaluating a person’s potential for nonviolence outside of a custodial setting. This lack of clarity raises significant due process concerns. Civil detention cannot be predicated on speculative future conditions, yet the bill appears to move in that direction. In doing so, it departs from long-standing constitutional limitations and risks sweeping individuals into involuntary treatment based on conjecture rather than demonstrated need.

Additionally, SB 1221 authorizes the District Attorney to access and review all conservatorship investigation materials, including highly sensitive medical and psychiatric information, without meaningful safeguards. The bill does not clearly limit how this information may be used or prohibit its use in subsequent criminal proceedings. The predictable result is a chilling effect where defense counsel will be compelled to advise clients against participating fully in evaluations if their statements may later be accessed by prosecutors. This undermines the purpose of the evaluation in the first place.

The bill further authorizes the District Attorney to participate in conservatorship hearings in certain cases, to receive investigative reports, and to challenge the recommendations of the Public Conservator. Injecting a prosecutorial agency into these civil proceedings, particularly where County Counsel already represents the Public Guardian, blurs the distinction between civil and criminal systems. If a county determines that the District Attorney should play a role in these matters, existing law already provides that flexibility. SB 1221 unnecessarily upends this locally controlled framework and imposes a one-size-fits-all approach that may not reflect the needs or values of individual counties.

Finally, the bill requires the Department of State Hospitals to prioritize placement of individuals deemed gravely disabled due to incompetency and related criminal charges over all others. This reprioritization removes the Department’s discretion to manage its waitlist, promote equitable access, and prioritize individuals based on clinical need, potentially shifting scarce resources away from those most in need.

-- END --

1. Lerke’s petition was denied because he was transferred to a county psychiatric hospital, an authorized treatment facility, during the pendency of the appellate court proceedings. Although technically moot, the court exercised its discretion to decide the case on the merits because the case presented a recurring issue of public importance and an issue that may otherwise evade appellate review. ↑

2. McBain et al., Adult Psychiatric Bed Capacity, Need, and Shortage Estimates in California—2021 (Jan. 18, 2022), p. 3 <https://www.rand.org/pubs/research_reports/RRA1824-1-v2.html>. ↑

3. Ibid. ↑

4. McBain et al., supra, at p. 3. ↑

5. Ibid. ↑

6. Ibid. ↑

7. McBain et al., supra, at p.4. ↑

8. DSH, County Use of State Hospital Beds Memorandum of Understanding, California Department of State Hospitals and The California Mental Health Services Authority (CalMHSA) and Participating Counties <https://marin.granicus.com/MetaViewer.php?view_id=33&event_id=4056&meta_id=1393184>. ↑

SENATE COMMITTEE ON HEALTH

Senator Dr. Akilah Weber Pierson, Chair

BILL NO: SB 1221

SUBJECT: Lanterman-Petris-Short Act: conservatorships

SUMMARY:

Makes various changes to the conservatorship process, such as requiring evaluations for a person’s ability to provide for their personal basic needs or to be nonviolent while outside of an incarcerated setting; requiring the Department of State Hospitals to prioritize placement of one class of conservatees over another; and, permitting district attorneys to be present at conservatorship hearings to perform such things as represent public safety interests, review pertinent documents, and challenge the placement recommendation by a conservator.

Existing law:

1. Establishes the Lanterman-Petris-Short (LPS) Act to end the inappropriate, indefinite, and involuntary commitment of persons with mental health (MH) disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person. Permits involuntary detention of a person deemed to be a danger to self or others, or “gravely disabled” for periods of up to 72 hours for evaluation and treatment, or for up-to 14 days and up-to 30 days for additional intensive treatment in “county-designated facilities.” [WIC §5000, et seq.]
2. Permits a conservator of a person, or the estate, or of both the person and the estate, to be appointed for someone who is gravely disabled as a result of a MH disorder or impairment by chronic alcoholism, and who remains gravely disabled after periods of intensive treatment. [WIC §5350]
3. Defines “gravely disabled,” for purposes of evaluating and treating an individual who has been involuntarily detained or for placing an individual in conservatorship, as:
   1. A condition in which a person, as a result of a MH disorder, a severe substance use disorder, or a co-occurring MH disorder and a severe substance use disorder, is unable to provide for their basic personal needs for food, clothing, shelter, personal safety, or necessary medical care (referred to as “standard LPS conservatees”); or,
   2. A condition in which a person has been found mentally incompetent but can be restored to competence in a state hospital in the interests of justice, or are charged with specified offenses, and all of the following facts exist (referred to as “Murphy conservatees” [MCs]—a subset of the standard LPS conservatee population):
      1. The complaint, indictment, or information pending against the person at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person;
      2. There has been a finding of probable cause on a complaint, a preliminary examination, or a grand jury indictment, and the complaint, indictment, or information has not been dismissed;
      3. As a result of a MH disorder, the person is unable to understand the nature and purpose of the proceedings taken against them and to assist counsel in the conduct of their defense in a rational manner; and,
      4. The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. [WIC §5008(h)(1)(A) and (B)]

1. Defines “designated facility,” “facility designated by the county for evaluation and treatment,” or “facility designated by the county to provide intensive treatment” as a facility that meets designation requirements established by the Department of Health Care Services (DHCS), including, but not limited to:
   1. Psychiatric health facilities; psychiatric residential treatment facilities; and MH rehabilitation centers licensed by DHCS, or provider sites certified by either DHCS or a MH plan to provide crisis stabilization;
   2. General acute care hospitals; acute psychiatric hospitals; and chemical dependency recovery hospitals licensed by the California Department of Public Health (CDPH); and,
   3. Hospitals operated by the U.S. Department of Veterans Affairs. [WIC §5008(n)(1)(A)-(H)]
2. Requires a county district attorney, at any judicial proceeding related to community MH services, to present allegations that a person is a danger to self or others, or gravely disabled as a result of mental disorder or impairment by chronic alcoholism, unless the board of supervisors, by ordinance or resolution, delegates such duty to the county counsel. [WIC §5114]
3. Requires the officer providing conservatorship investigation to investigate all available alternatives to conservatorship, including, but not limited to, assisted outpatient treatment, and the Community Assistance, Recovery, and Empowerment (CARE) Act and to recommend conservatorship to the court only if no suitable alternatives are available. Requires the officer to render to the court a report prior to the hearing. Requires a copy of the report to be transmitted to the individual who originally recommended conservatorship; to the person or agency, if any, recommended to serve as conservator; and, to the person recommended for conservatorship. Permits the court to receive the report in evidence and consider the contents in rendering its judgment. [WIC §5354(a)]
4. Requires a conservator to place their MC in various settings, including in a placement that achieves the purposes of treatment of the conservatee and protection of the public. [WIC §5358(a)(1)(B)]
5. Requires first priority for MCs to be placement in a facility that achieves the purposes of treatment of the conservatee and protection of the public. Requires the court to determine the most appropriate placement for the conservatee. Requires the court to also determine those persons to be notified of a change of placement, and additionally require the conservator to notify the district attorney or attorney representing the originating county prior to any change of placement. [WIC §5358(c)(2)]

This bill:

1. Requires the Department of State Hospitals (DSH) to prioritize MCs’ placement in a state hospital over the other standard LPS conservatees.
2. Requires a person’s “grave disability” to be evaluated outside of an incarcerated setting. Prohibits the fact that the person has temporary access to food, clothing, shelter, personal safety, and necessary medical care while incarcerated to be a basis to conclude that they are able to provide for their basic personal needs.
3. Requires a person’s “ability to be nonviolent” to be evaluated outside of an incarcerated setting. Prohibits the fact that the person has not had an overt act of violence while incarcerated to be a basis to conclude that the person does not represent a substantial danger of physical harm to others.
4. Adds district attorneys to the list of entities who receive a copy of the conservatorship investigation report required to be rendered to the court, if an investigation was initiated for a defendant returned to the court who has not had competency restored.
5. Permits a district attorney to be present at all hearings to represent public safety interests, such as to provide the court input about the placement, interim placement, and transfer of a MC; to review all filed documents regarding the investigation, initiation, termination, or modification of conservatorship for MCs and provide input to the court about appropriate placement or interim placement; and, to challenge the recommendation of the public conservator after the conservatorship investigation for an abuse of discretion in a contested hearing before a judge. Requires the district attorney to have the burden of proof.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, this bill responds to the decision issued in In re Lerke (2024) 107 Cal.App.5th 685. In Lerke, the Fourth Appellate District announced that MCs cannot be temporarily housed at a county detention facility pending delivery to a state hospital. The Lerke decision seriously jeopardized public safety by eliminating the conservator’s ability to house individuals at a county detention facility. Furthermore, victims and the public were distraught, confused, and angry with a system where there was no transparency or representative of public safety present that would explain the process. Within weeks of the Lerke decision, victims, their families, and the public were faced with the prospect of charged murderers, rapists, and arsonists on MCs being released into the community because state hospital beds were not available. Despite a legislatively defined role that provides for district attorneys to represent victims and public safety they were denied access to these hearings across the state, including in San Diego County. As counties statewide struggled to find placements, weaknesses within the current statutes addressing MCs became apparent.
2. In re Lerke decision. Background information provided by the author’s office states that after the Lerke decision, criminally charged, presently incompetent, mentally ill defendants who present current substantial risk of physical harm to others, and who are MCs under the LPS Act and temporarily housed at a county detention facility awaiting transfer to a state hospital, began petitioning for release from custody by citing the decision. Background information indicates that in the Lerke decision the court encouraged conservators to find interim placements for MCs, but in many counties, no such placements are readily available for this population, or for many people seeking MH treatment in the community, as they lack designated facilities equipped to handle MCs. Often, the only possible placement is in a privately operated facility, which can deny admission to individuals who can be physically violent, resistant to psychotropic medication, and charged with violent felonies. A recent example is one faced by Sonoma County, which had been housing several MCs at the Main Adult Detention Facility while awaiting bedspace at state hospitals. Several of those individuals were charged with murder—for instance: a man dragging and beating a woman into a coma, fleeing the scene with the woman’s body, and ultimately being detained by law enforcement; and, a man stabbing another man to death along a major thoroughfare in front of witnesses and expressing sexually violent themes during an interview and subsequent treatment. These individuals were awaiting placement at either a state hospital or other designated facilities. All faced several rejections from private facilities and a lengthy state hospital waitlist. The victims and public were excluded during proceedings in these cases, and their representative faced barriers in entering the courtroom to discuss placement.
3. LPS Act involuntary detentions. The LPS Act provides for involuntary detentions for varying lengths of time for the purpose of evaluation and treatment, provided certain requirements are met, such as that an individual is taken to a county-designated facility. Typically, one first interacts with the LPS Act through a 5150 hold initiated by a peace officer or other person authorized by a county, who must determine and document that the individual meets the standard for a 5150 hold. A county-designated facility is authorized to then involuntarily detain an individual for up to 72 hours for evaluation and treatment if they are determined to be, as a result of a MH disorder, a danger to self or others, or gravely disabled. The professional person in charge of the county-designated facility is required to assess an individual to determine the appropriateness of the involuntary detention prior to admitting the individual. Subject to various conditions, a person who is found to be a danger to self or others, or gravely disabled, can be subsequently involuntarily detained for an initial up-to 14 days for intensive treatment, an additional 14 days (or up to an additional 30 days in counties that have opted to provide this additional up-to 30-day intensive treatment episode), and ultimately a conservatorship, which is typically for up to a year and may be extended as appropriate. Throughout this process, existing law requires specified entities to notify family members or others identified by the detained individual of various hearings, where it is determined whether a person will be further detained or released, unless the detained person requests that this information is not provided. Additionally, a person cannot be found to be gravely disabled if they can survive safely without involuntary detention with the help of responsible family, friends, or others who indicate they are both willing and able to help. A person can also be released prior to the end of intensive treatment if they are found to no longer meet the criteria or are prepared to accept treatment voluntarily.  
4. Treatment beds in California. According to a 2022 RAND report based on 2021 information, the most recent report on inpatient psychiatric bed capacity, California needs 50.5 inpatient psychiatric beds per 100,000 adults: 26.0 per 100,000 at the acute level and 24.6 per 100,000 at the subacute level, or 7,945 and 7,518 beds, respectively. At the community residential level, the estimated need is 22.3 beds per 100,000 adults. RAND estimated that California has a total of 5,975 beds at the acute level (19.5 per 100,000 adults) and 4,724 at the subacute level (15.4 per 100,000 adults), excluding state hospital beds. If state hospital beds are included, these figures increase to 7,679 (25.1 per 100,000 adults) and 9,168 beds (29.9 per 100,000 adults), respectively. RAND also observed large regional variation. For example, excluding state hospitals, acute bed capacity ranged from 9.1 beds per 100,000 adults in the Northern San Joaquin Valley to 27.9 beds per 100,000 adults in the Superior county region. For subacute bed capacity, regional estimates ranged from 7.4 to 31.8 beds per 100,000 adults. At the community residential level, RAND estimated that California has a total of 3,872 beds (12.7 per 100,000 adults). California has a shortfall of approximately 1,971 beds at the acute level (6.4 additional beds required per 100,000 adults) and a shortage of 2,796 beds at the subacute level (9.1 additional beds required per 100,000 adults), or 4,767 subacute and acute beds combined, excluding state hospital beds. If state hospitals were included in this estimate, the shortage of acute inpatient beds would shrink to 267, and there would be no observable shortage in beds at the subacute level. Separately, RAND estimated a shortage of 2,963 community-based residential beds.
5. California State Auditor’s (CSA) audit on the LPS Act. The CSA released LPS Act: California Has Not Ensured That Individuals with Serious Mental Illnesses Receive Adequate Ongoing Care on July 28, 2020. The audit focused on the following issues in three counties (Los Angeles (LAC), San Francisco, and Shasta):
   1. Criteria for involuntary detention for those who are a danger to self or others or gravely disabled, due to a MH condition, and criteria for conservatorship, and whether the counties have consistently followed those criteria;
   2. Differences in approaches among the counties in implementing the LPS Act, if any;
   3. Funding sources, and whether funding is a barrier to implementing the LPS Act; and,
   4. Availability of treatment resources in each county.

Relative to this bill, the CSA noted that individuals waiting for admission to a state hospital sometimes receive inadequate levels of care while they wait. A review of LAC’s records found that while individuals were waiting for placement at a state hospital, they most often received their care in general acute hospitals or similar treatment facilities. However, those records demonstrate that in several instances, these lower levels of care created risk for both the waitlisted individuals and the staff of the facilities. For example, in one case, an individual exhibiting repeated self‑injurious behavior was referred to a state hospital. While waiting for an available state hospital bed, they were taken off the state hospital facility referral list and admitted to a private facility. During their stay at the private facility, they engaged in additional self‑injurious behavior, requiring several emergency room visits at a general hospital. Because of this behavior, the private facility would not readmit that individual to its care, so they remained at the general hospital. They were placed back on the state hospital’s waitlist, and the state hospital eventually admitted the individual three months after the second referral and five months after the initial referral. The CSA noted this case and others demonstrate that while individuals wait for space at a state hospital, they may not receive care that fully protects them or others around them. One issue that exacerbates the long waitlist, as the CSA noted, is that there is a mandate to place the incompetent to stand trial population in a state hospital within 60 days of commitment, which has resulted, by the 2020 LPS report, in 88% of DSH patients being actively involved in the criminal justice system. In contrast, about 12% of DSH patients were standard LPS conservatees, which includes MCs. The CSA further noted that although DSH had allocated some additional beds for individuals receiving their care through the LPS Act, it projected that the waitlist for the standard LPS conservatee population will continue to grow.

1. Double referral. This bill is double referred. Should it pass out of this Committee, it will be referred to the Senate Committee on Rules.
2. Prior legislation. SB 820 (Stern, Chapter 330, Statutes of 2025), among other things, prohibits a person’s temporary access to food, clothing, and shelter, while transferred to a 72-hour facility for treatment and evaluation, from being a basis to conclude that the person is able to provide for their basic personal needs.
3. Support. Supporters of this bill, largely district attorneys, state that the court decision created chaos throughout California and public conservators in many counties scrambled to temporarily place defendants charged with (and some convicted of) murder, rape, and arson who were MCs and were held on an interim basis at a county detention facility. The most dangerous incompetent, non-restorable defendants were being quickly moved subject to this legal change without transparency for victims or the public because both the public and the district attorney were excluded from these proceedings, creating fear and distrust amongst the public. California District Attorneys Association says this bill addresses the issues created by the Lerke decision by requiring DSH to prioritize MCs because they pose a significant and serious risk of harm to the public above other conservatees who have not been found to be currently dangerous. Also, this bill clarifies the district attorney’s role as an independent voice for public safety during MCs’ hearings. The district attorney provides an essential voice for victims and public safety by providing information regarding risk and dangerousness to courts to complement the public conservator’s investigation and conclusions. This bill fixes the issues that became apparent to victims and the public after the Lerke decision upended the interim placement for MCs.
4. Opposition. The County Behavioral Health Director’s Association (CBHDA) writes in opposition and details the process for MCs, stating that it begins in the criminal court, but when an individual is determined to be unlikely to regain competency in the foreseeable future, the criminal court dismisses the charges and refers the matter to the public guardian or public conservator. CBHDA and other opponents, who represent the interest of those with MH conditions, argue that this creates new challenges by restricting counties’ ability to hold an MCs in a carceral setting pending finding a suitable treatment provider, which has created significant challenges for local public guardians and behavioral health departments. Opponents are specifically concerned that this bill would insert the local district attorney into all LPS civil commitment hearings, whether criminal charges are involved in the case or not, and grant DAs access to sensitive and confidential patient information, fundamentally altering the nature of LPS conservatorships by including a distinctly criminal court element to what is otherwise a civil court process. Disability Rights California (DRC) adds this would drastically change what individuals are willing to disclose during conservatorship investigations because they would reasonably fear that any statements they make during an investigation could be misconstrued and used against them in the future. Opponents further oppose the requirement for DSH to prioritize beds for MCs. CBHDA says this requirement would remove discretion from the state hospitals to determine how best to manage their scarce, but important resource, and urge the state to consider requiring standard reporting on the number of MCs currently with annual updates, as no statewide data exists on the number of MC. Cal Voices argues that prioritizing MCs could create inequities in care, delaying timely interventions for LPS conservatees who may need immediate treatment, and these delays can worsen MH conditions, leading to more emergency room visits and potential hospitalizations. Prioritizing MCs raises serious questions about fairness in access to MH services, as every person, regardless of their conservatorship type, deserves equal treatment and timely care. DRC says this would severely disrupt the bed allocation system DSH, CalMHSA, and counties carefully collaborated to develop, and one consequence is that there is a real possibility many LPS conservatees will fall back into cycles of homelessness, disengagement from services, law enforcement contact, and criminal legal system involvement that the state intends to curtail.
5. Policy concerns.
   1. Information provided by the author’s office indicates that, in a small number of instances, courts have determined that individuals do not meet grave disability criteria because their personal basic needs were being provided to them in an incarcerated setting. Current law states that, as a result of a MH disorder, an individual is gravely disabled when they are unable to provide for their basic personal needs. Adding clarification for the above small number of instances in a definition that pertains to the entire standard LPS population may present unintended challenges. This provision appears to be most appropriate in LPS law outlining the conservatorship process.
   2. Additional information provided by the author’s office indicates that since the Lerke decision, counties have struggled to place MCs in the other various types of designated facilities approved to treat those who move through the LPS Act continuum—particularly because of the nature of their crimes. However, it appears that for the majority of counties with MCs, the issue may mostly lie with larger counties. Opponents argue that there are too few state hospital beds and long waitlists already to propose prioritizing one populating vying for the beds over another, which could lead to the rest of the standard LPS conservatees having even fewer placement options and an even longer waitlist for a state hospital placement, if it’s determined DSH is the only option for them.
6. Amendments. To address the policy concerns, the author may wish to consider the following amendments:
   1. Move the provision prohibiting a grave disability determination from being made based on an individual being provided basic personal needs while incarcerated from the definitions section of the LPS Act to the provisions that set forth the process for investigating conservatorship;
   2. Specify that, in counties with a population size of greater than 500,000, prioritization may be considered for MCs for placement in a state hospital when it’s determined that a specified percentage of MCs are on a waitlist; and,
   3. Make necessary clarifications in the entire bill to ensure that, other than amendment a), the bill’s provisions apply only to MCs since that’s the population of conservatees that have raised the various concerns that prompted this bill. Any concerns raised regarding this population will be analyzed and addressed by the Senate Committee on Public Safety.

SUPPORT AND OPPOSITION:

Support: California District Attorneys Association

California State Association of Psychiatrists

California State Sheriffs’ Association

Office of the Los Angeles County District Attorney

Office of the Riverside County District Attorney

Office of the San Diego County District Attorney

Oppose: American Civil Liberties Union California Action

Cal Voices

California Youth Empowerment Network

California Public Defenders Association

County Behavioral Health Directors Association

Disability Rights California

Mental Health America of California

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