California Senate Bill SB1412 Introduced / Bill

 BILL NUMBER: SB 1412INTRODUCED BILL TEXT INTRODUCED BY Senator Nielsen FEBRUARY 21, 2014 An act to amend Sections 1367, 1369.1, 1370.5, and 1375.5 of, and to add Sections 1368.2, 1370.02, and 1370.03 to, the Penal Code relating to crimes. LEGISLATIVE COUNSEL'S DIGEST SB 1412, as introduced, Nielsen. Criminal proceedings: mentally incompetent offenders. Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant's mental competency is evaluated and by which the defendant receives treatment, including, if applicable antipsychotic medication, with the goal of returning the defendant to competency. Existing law credits time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the term of any imprisonment for which the defendant is sentenced. This bill would, similarly, prohibit a person from having his or her postrelease community supervision or mandatory supervision revoked while that person is mentally incompetent. The bill would establish a process by which the person's mental competency is evaluated and by which the defendant receives treatment, including, if applicable, antipsychotic medication, with the goal of returning the person to competency. This bill would credit time spent by a defendant in a state hospital or other facility as a result of commitment during the process toward the period of revocation or the remaining mandatory supervision term that was suspended. By increasing the duties of local officials, including the county mental health director, this 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 these statutory provisions. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1367 of the Penal Code is amended to read: 1367. (a) A person cannot be tried or adjudged to punishment  or have his or her postrelease community supervision or mandatory supervision revoked  while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (b) Section 1370 shall apply to a person who is charged with a felony and is incompetent as a result of a mental disorder. Sections 1367.1 and 1370.01 shall apply to a person who is charged with a misdemeanor or misdemeanors only, and the judge finds reason to believe that the defendant is mentally disordered, and may, as a result of the mental disorder, be incompetent to stand trial. Section 1370.1 shall apply to a person who is incompetent as a result of a developmental disability and shall apply to a person who is incompetent as a result of a mental disorder, but is also developmentally disabled.  Section 1370.02 shall apply to a person whose postrelease community supervision has been revoked. Section 1370.03 shall apply to a person whose mandatory supervisi   on has been revoked.  SEC. 2. Section 1368.2 is added to the Penal Code, to read: 1368.2. (a) If, during the pendency of a revocation of postrelease community supervision or mandatory supervision, a doubt arises in the mind of the judge as to the mental competence of the offender, the judge shall state that doubt in the record and inquire of the attorney for the offender whether, in the opinion of the attorney, the offender is mentally competent. If the offender is not represented by counsel, the court shall appoint counsel. At the request of the offender or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the offender and to form an opinion as to the mental competence of the offender at that point in time. (b) If counsel informs the court that he or she believes the offender is or may be mentally incompetent, the court shall order that the question of the offender's mental competence be determined in a hearing held pursuant to Section 1369. If counsel informs the court that he or she believes the offender is mentally competent, the court may nevertheless order a hearing. The hearing shall be held in the superior court. (c) When an order for a hearing into the present mental competence of the offender has been issued, all revocation proceedings shall be suspended until the question of the present mental competence of the offender has been determined. SEC. 3. Section 1369.1 of the Penal Code is amended to read: 1369.1. (a) As used in this chapter, "treatment facility" includes a county jail. Upon the concurrence of the county board of supervisors, the county mental health director, and the county sheriff, the jail may be designated to provide medically approved medication to defendants found to be mentally incompetent and unable to provide informed consent due to a mental disorder, pursuant to this chapter. In the case of Madera, Napa, and Santa Clara Counties, the concurrence shall be with the board of supervisors, the county mental health director, and the county sheriff or the chief of corrections. The provisions of Sections 1370 and 1370.01 shall apply to antipsychotic medications provided in a county jail, provided, however, that the maximum period of time a defendant may be treated in a treatment facility pursuant to this section shall not exceed six months.  The provisions of Section 1370.02 shall apply to antipsychotic medications provided to a person in a county jail pending revocation of postrelease community supervision, provided, however, that the maximum period of time a defendant may be treated in a treatment facility pursuant to this section shall not exceed one year. The provisions of Section 1370.03 shall apply to antipsychotic medications provided to a person in a county jail pending revocation of mandatory supervision, provided, however, that the maximum period of time a defendant may be treated in a treatment facility pursuant to this section shall not exceed the remaining period of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170.  (b) This section does not abrogate or limit any  provision of  law enacted to ensure the due process rights set forth in Sell v. United States (2003) 539 U.S. 166. (c) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date. SEC. 4. Section 1370.02 is added to the Penal Code, to read: 1370.02. (a) (1) If the offender is found mentally competent, the postrelease community supervision revocation proceedings shall resume. If the offender is found mentally incompetent, the revocation proceedings shall be suspended until the person becomes mentally competent, and the court shall order that, in the meantime, the offender be delivered by the sheriff to an available public or private treatment facility, approved by the county mental health director, that will promote the offender's speedy restoration to mental competence, or placed on outpatient status as specified in this section. Upon the filing of a certificate of restoration to competence, the offender shall be returned to court in accordance with Section 1372. The court shall transmit a copy of its order to the county mental health director or his or her designee. (2) Prior to making the order directing that the offender be confined in a treatment facility or placed on outpatient status, the court shall do all of the following: (A) Order the county mental health director, or his or her designee, to evaluate the offender and to submit to the court within 15 business days of the order a written recommendation as to whether the offender should be required to undergo outpatient treatment or committed to a treatment facility. A person shall not be admitted to a treatment facility or placed on outpatient status under this section without having been evaluated by the county mental health director or his or her designee. A person shall not be admitted to a state hospital under this section unless the county mental health director finds that there is no less restrictive appropriate placement available and the county mental health director has a contract with the State Department of State Hospitals for these placements. (B) Hear and determine whether the offender, with advice of his or her counsel, consents to the administration of antipsychotic medication. (i) If the offender, with advice of his or her counsel, consents to the administration of antipsychotic medication, the court order of commitment shall include confirmation that antipsychotic medication may be given to the offender as prescribed by a treating psychiatrist. The commitment order shall also indicate that, if the offender withdraws consent for antipsychotic medication after the treating psychiatrist complies with the provisions of subparagraph (C), the offender shall be returned to court for a hearing in accordance with this subdivision regarding whether antipsychotic medication shall be administered involuntarily. (ii) If the offender does not consent to the administration of antipsychotic medication, the court shall hear and determine whether any of the following are true: (I) The offender lacks capacity to make decisions regarding antipsychotic medication, the offender's mental disorder requires medical treatment with antipsychotic medication, and, if the offender' s mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the offender requires evidence that the offender is presently suffering adverse effects to his or her physical or mental health or the offender has previously suffered these effects as a result of a mental disorder and his or her condition is substantially deteriorating. The fact that an offender has a diagnosis of a mental disorder does not, in itself, establish probability of serious harm to the physical or mental health of the offender. (II) The offender is a danger to others, in that the offender has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or the offender had inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another that resulted in his or her being taken into custody, and the offender 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 offender's present mental condition, including a consideration of past behavior of the offender within six years prior to the time the offender last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence. (iii) If the court finds any of the conditions described in clause (ii) to be true, the court shall issue an order authorizing the treatment facility to involuntarily administer antipsychotic medication to the offender when and as prescribed by the offender's treating psychiatrist. (iv) In all cases, the treating hospital, facility, or program may administer medically appropriate antipsychotic medication prescribed by a psychiatrist in an emergency as described in subdivision (m) of Section 5008 of the Welfare and Institutions Code. (v) A report made pursuant to subdivision (b) shall include a description of any antipsychotic medication administered to the offender and its effects and side effects, including effects on the offender's appearance or behavior that would affect the offender's ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner. During the time the offender is confined in a state hospital or other treatment facility or placed on outpatient status, either the offender or the people may request that the court review an order made pursuant to this subdivision. The offender, to the same extent enjoyed by other patients in the state hospital or other treatment facility, shall have the right to contact the Patients' Rights Advocate regarding his or her rights under this section. (C) If the offender consented to antipsychotic medication as described in clause (i) of subparagraph (B), but subsequently withdraws his or her consent, or, if involuntary antipsychotic medication was not ordered pursuant to clause (ii) of subparagraph (B), and the treating psychiatrist determines that antipsychotic medication has become medically necessary and appropriate, the treating psychiatrist shall make efforts to obtain informed consent from the offender for antipsychotic medication. If informed consent is not obtained from the offender, and the treating psychiatrist is of the opinion that the offender lacks capacity to make decisions regarding antipsychotic medication as specified in subclause (I) of clause (ii) of subparagraph (B), or that the offender is a danger to others as specified in subclause (II) of clause (ii) of subparagraph (B), the committing court shall be notified of this, including an assessment of the current mental status of the offender and the opinion of the treating psychiatrist that involuntary antipsychotic medication has become medically necessary and appropriate. The court shall provide copies of the report to the prosecuting attorney and to the attorney representing the offender and shall set a hearing to determine whether involuntary antipsychotic medication should be ordered. (3) When the court, after considering the placement recommendation of the county mental health director required in paragraph (2), orders that the offender be confined in a public or private treatment facility, the court shall provide copies of the following documents, which shall be taken with the offender to the treatment facility where the offender is to be confined: (A) The commitment order, including a specification of the charges. (B) A computation or statement setting forth the maximum term of commitment in accordance with subdivision (c). (C) A computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment. (D) State summary criminal history information. (E) Arrest reports prepared by the police department or other law enforcement agency. (F) Court-ordered psychiatric examination or evaluation reports. (G) The county mental health director's placement recommendation report. (4) A person subject to commitment pursuant to this section may be placed on outpatient status under the supervision of the county mental health director or his or her designee by order of the court in accordance with the procedures contained in Title 15 (commencing with Section 1600) except that where the term "community program director" appears the term "county mental health director" shall be substituted. (5) (A) If the offender is committed or transferred to a public or private treatment facility approved by the county mental health director, the court may, upon receiving the written recommendation of the county mental health director, transfer the offender to another public or private treatment facility approved by the county mental health director. In the event of dismissal of the revocation proceedings before the offender recovers competence, the person shall be subject to the applicable provisions of Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code. Where either the offender or the prosecutor chooses to contest the order of transfer, a petition may be filed in the court for a hearing, which shall be held if the court determines that sufficient grounds exist. At the hearing, the prosecuting attorney or the offender 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. (B) Prior to making an order for transfer under this paragraph, the court shall notify the offender, the attorney of record for the offender, the prosecuting attorney, and the county mental health director or his or her designee. (b) (1) Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the treatment facility to which the offender is confined shall make a written report to the court and the county mental health director or his or her designee, concerning the offender's progress toward recovery of mental competence. (2) Where the offender is on outpatient status, the outpatient treatment staff shall make a written report to the county mental health director concerning the offender's progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the county mental health director shall report to the court on this matter. (3) If the offender has not recovered mental competence, but the report discloses a substantial likelihood that the offender will regain mental competence in the foreseeable future, the offender shall remain in the treatment facility or on outpatient status. Thereafter, at six-month intervals or until the offender becomes mentally competent, reporting shall be as follows: (A) Where the offender is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the county mental health director or a designee regarding the offender's progress toward recovery of mental competence. (B) Where the offender is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the county mental health director on the offender's progress toward recovery, and the county mental health director shall report to the court on this matter at six-month intervals. (4) A copy of the reports required pursuant to paragraph (3) shall be provided to the prosecutor and defense counsel by the court. (5) If the report indicates that there is no substantial likelihood that the offender will regain mental competence in the foreseeable future, the committing court shall order the offender to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c). The court shall transmit a copy of its order to the county mental health director or his or her designee. (c) (1) If, at the end of one year from the date of commitment, the offender has not recovered mental competence, the offender shall be returned to the committing court. The court shall notify the county mental health director or his or her designee of the return and of any resulting court orders. (2) Whenever an offender is returned to the court pursuant to subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the offender is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the offender to initiate conservatorship proceedings for the offender 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 county mental health director or his or her designee and shall notify the county mental health director or his or her designee of the outcome of the proceedings. (d) The revocation petition remains subject to dismissal. If the revocation petition is dismissed, the court shall transmit a copy of the order of dismissal to the county mental health director or his or her designee. (e) If the petition is dismissed, the offender shall be released from commitment ordered pursuant to this section, but without prejudice to the initiation of proceedings that may be appropriate under Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code. SEC. 5. Section 1370.03 is added to the Penal Code, to read: 1370.03. (a) If the offender is found mentally competent, the mandatory supervision revocation proceedings shall resume. If the offender is found mentally incompetent, the revocation proceedings shall be suspended until the person becomes mentally competent, and the court shall order the commencement of the treatment and determination process specified in subdivisions (a) and (b) of Section 1370.02. (b) If, at the end of the maximum term of commitment imposed at the original sentencing hearing pursuant to subdivision (h) of Section 1170 of the Penal Code, the offender has not recovered mental competence, the offender shall be returned to the committing court. The court shall notify the county mental health director or his or her designee of the return and of any resulting court orders. (c) Whenever an offender is returned to the court without recovering mental competence or upon a finding that it is unlikely that the person will regain mental competence pursuant to paragraph (5) of subdivision (b) of Section 1370.02, and it appears to the court that the offender is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the offender to initiate conservatorship proceedings for the offender 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 county mental health director or his or her designee and shall notify the county mental health director or his or her designee of the outcome of the proceedings. (d) If the offender completes the full term originally imposed, the offender shall be released from any commitment ordered under this section, but without prejudice to the initiation of any proceedings which may be appropriate under Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code. SEC. 6. Section 1370.5 of the Penal Code is amended to read: 1370.5. (a)  Every   A  person committed to a state hospital or other public or private mental health facility pursuant to the provisions of Section 1370, 1370.01,  1370.02, 1370.03,  or 1370.1, who escapes from or who escapes while being conveyed to or from a state hospital or facility, is punishable by imprisonment in  the   a  county jail not to exceed one year or in the state prison for a determinate term of one year and one day. The term of imprisonment imposed pursuant to this section shall be served consecutively to any other sentence or commitment. (b) The medical director or person in charge of a state hospital or other public or private mental health facility to which a person has been committed pursuant to the provisions of Section 1370, 1370.01,  1370.02, 1370.03,  or 1370.1 shall promptly notify the chief of police of the city in which the hospital or facility is located, or the sheriff of the county if the hospital or facility is located in an unincorporated area, of the escape of the person, and shall request the assistance of the chief of police or sheriff in apprehending the person, and shall within 48 hours of the escape of the person orally notify the court that made the commitment, the prosecutor in the case, and the Department of Justice of the escape. SEC. 7. Section 1375.5 of the Penal Code is amended to read: 1375.5.  (a)    Time spent by a defendant in a hospital or other facility as a result of a commitment therein as a mentally incompetent pursuant to this chapter shall be credited on the term of  any  imprisonment, if any, for which the defendant is sentenced in the criminal case which was suspended pursuant to Section 1370 or 1370.1.  (b) Time spent by an offender in a hospital or other facility as a result of a commitment as a mentally incompetent pursuant to Section 1370.02 or 1370.03 shall be credited toward any period of revocation or remaining mandatory supervision term that was suspended.  As   (c)     As  used in this section, "time spent in a hospital or other facility" includes days a defendant is treated as an outpatient pursuant to Title 15 (commencing with Section 1600) of Part 2. SEC. 8. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.