Chapter 18

A. Patients’ Rights of Forensic Clients

Penal code patients are generally afforded the same rights granted LPS patients if they are being held in a mental health facility. However, unlike LPS patients, penal code patients cannot be released from mental health commitment without a court approval, and the state may limit certain patient rights to meet public and institutional safety concerns. When a patient is on outpatient is on outpatient CONREP status, the mandatory program requirements may conflict with certain LPS rights. To what extent these LPS rights may be curtailed will depend on the status of the patient and the rights involved.

B. Transfer of Patients from Jail to Acute Psyhiatric Hospital

(California Penal Code § 4011.6)

1. Patients’ Rights

When a person is in a county jail, a juvenile detention facility or in court and they appear to be "mentally disordered" they may be sent to an acute psychiatric facility for "treatment and evaluation" by the person in charge of the facility or the judge. Once a person has been transferred they then have the same rights as all other patients’ afforded them by Cal. Welf. & Inst. Code including § 5325.

Upon transfer to the facility, the transferee can only be held under the same provisions that apply to any other civilly committed individual, i.e. Welf. & Inst. Code §5150, 5250, 5260, 5300 and 5350. The transferee has a right to judicial review of his/her detention as specified in Welf. & Inst. Code § 5275 and all rights afforded patients under Welf & Inst. Code §5325 et seq.(Cal. Penal Code §4011.6)

2. Voluntary Status

A person transferred to an inpatient facility under this section of the Penal Code may convert to voluntary status without obtaining the consent of the court, the person in charge of the jail or juvenile detention facility, or the local mental health director.

3. Time Served

If the person is detained in a mental health facility, the time spent in the facility counts as part of the person’s sentence. The person in charge of the jail or juvenile facility must inform the person in charge of the mental health facility of the expiration date of the person’s sentence. If the person is to be released from a mental health facility before the completion of their sentence the facility must notify the jail or juvenile detention facility. The person would complete his sentence in jail or juvenile detention facility.

C. Transfer of state prison inmate for mental health treatment

Prisoners can be transferred involuntarily for mental health treatment to either a Correctional Treatment Facility (CTF) or a state psychiatric hospital. They have a right to challenge the transfer at a hearing conducted by an independent psychiatrist. The hearing must take place within seven days of the transfer. An adverse decision may be appealed within 30 days and is entitled to a ruling within 20 days. 15 C.C.R. § 3379(d)(3)

D. Incompetent to Stand Trial (IST) (1370)

Defendants found incompetent to stand trial are those who, as a result of a mental disorder or developmental disability, cannot understand the nature of the criminal proceedings or assist their attorneys in conducting their defense. Cal. Penal Code § 1367.

1. Misdemeanor Incompetent to Stand Trial

Misdemeanor defendants found incompetent to stand trial usually receive evaluation and treatment at local county mental health facilities, rather than at state hospitals. They cannot be committed to a state hospital unless: (1) there is no less restrictive appropriate placement available, and (2) a contract for state hospital treatment exists between the county and the DMH. (Cal. Penal Code § 1370.01 (a)(2)). Misdemeanor defendants may also placed directly in the Conditional Release Program (CONREP) for outpatient treatment. (See below for a discussion of CONREP). (Cal. Penal Code § 1601(b)).

The maximum commitment for a misdemeanor incompetent to stand trial defendant is one year or the longest permitted prison sentence for the crime charged, whichever is shorter. Cal. Penal Code § 1370.01(c)(1).

2. Felony Incompetent to stand Trial

Felony incompetent to stand trial defendants usually receive evaluation and treatment at state hospitals. If the crime charged is a serious felony, inpatient treatment is mandatory. After six months at the state hospital, the felony defendant becomes eligible for CONREP outpatient treatment. Felony defendants charged with nonviolent felonies may be placed directly in CONREP without spending any time as an inpatient. (Cal. Penal Code §§ 1601(a) - (b), 1603).

The maximum felony incompetent to stand trial commitment is three years or the longest permitted prison sentence for the crime charged, whichever is shorter. (Cal. Penal Code § 1370(c)(1)).

3. Restoring Competency

The commitment ends when (1) the IST defendant has spent the maximum allowable time in the treatment facility, or (2) the IST defendant is judged competent to stand trial.

The treatment facility makes regular written reports to the court about the IST defendant's mental condition. Within 90 days of the commitment, the facility must file a report about the defendant's progress. If the reports states that the defendant is still incompetent to stand trial but may soon regain competence, the defendant will remain in the facility. After this first report, the facility must report to the court every six months. (Cal. Penal Code §§ 1370(b)(1), 1370.01(b)).

If the treatment facility believes that the defendant has regained competence, the facility files a Certificate of Restoration of Competency with the court, which then holds a hearing to determine competency. (Cal. Penal Code § 1372).

If a felony defendant has not been found competent after 18 months of treatment, a new competency trial must be held. (Cal. Penal Code §§ 1369, 1370(b)(2)).

If the defendant believes that he/she has regained competency, but the treatment facility or community program director disagrees or does not report to the court, the defendant may challenge his/her commitment by writ of habeas corpus. (Cal.Welf. & Inst. Code § 7250, Cal. Penal Code § 1473). He/she may also contest the facility's recommendations in the progress reports made to the court every six months during the status review hearings. (In re Davis, 8 Cal. 3d 798, 810, 505 P.2d 1018, 106 Cal.Rptr. 178, 187 (1973)).

4. Time Counted

An IST defendant receives credit for time spent in a hospital, treatment facility, or outpatient program toward any prison time she must serve if convicted for the underlying offense. (Cal. Penal Code § 1375.5). However, an IST defendant does not receive time credits for good conduct or work performed during pre-sentence commitment in jail, mental health facilities, or outpatient programs. (People v. Waterman 42 Cal. 3d 565 724 P.2d 482, 229 Cal. Rptr. 796 (1986)).

5. Continued treatment

An IST defendant can be kept in treatment beyond the maximum commitment time if the defendant is placed on an LPS conservatorship or a Murphy conservatorship.

If at the end of the commitment period, the defendant is unable, due to a mental disorder, to provide for her food, clothing, and shelter, she may be civilly committed under the LPS Act conservatorship provisions. (Cal.Welf. & Inst. Code § 5008(h)(1)(A)).

If at the end of the commitment period, the defendant meets the criteria for a Murphy conservatorship, the commitment may be "extended." This extension beyond the maximum period of commitment may be ordered for IST defendants who: (1) remain incompetent, (2) are charged by an undismissed indictment or information with a violent felony and (3) represent a substantial danger of physical harm to others. (Cal. Penal Code § 1370(c)(2), Cal. Welf. & Inst. Code § 5008(h)(1)(B)).

The court may order the county public conservator to initiate Murphy conservatorship proceedings at any time after the defendant has served the maximum term of confinement, or if treatment facility indicates there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future. (Cal. Penal Code §§ 1370(c)(2), 1370(b)(1)).


6. Murphy Conservatorship

A Murphy conservatorship technically lasts for one year, but this type of commitment can extend indefinitely. Murphy conservatees have the right to a yearly court review and jury trial, and have the same procedural rights as other LPS conservatees. (Conservatorship of Hofferber, 28 Cal. 3d 161, 616 P.2d 836, 167 Cal. Rptr. 854 (1980)).

E. Not Guilty By Reason of Insanity(NGRI)

Defendants found not guilty by reason of insanity are those who, because of a mental condition, were unable to understand the nature and quality of the crime committed, and (or) were unable to tell right from wrong when committing the crime. (Cal. Penal Code § 25). Although Cal. Penal Code § 25 states the two-prong test in the conjunctive ("and"), the California Supreme Court has held that the disjunctive ("or") is correct and that either prong will support a finding of NGRI. (People v. Skinner 39 Cal. 3d 765, 704 P.2d 752, 217 Cal.Rptr. 685 (1985). People v. Stress 205 Cal. App. 3d 1259, 252 Cal.Rptr. 913 (1988)).

1. Placement

When the judge or jury finds a defendant NGRI, the court will commit the defendant to a state hospital, a mental health facility, or an outpatient program. (Cal. Penal Code § 1026). Before making any placement decision, the court must refer the defendant to the local community program director for a recommendation, which the court usually follows. If the underlying charge is a serious felony, as defined in Cal. Penal Code § 1601, the defendant must remain in a state hospital for at least six months before becoming eligible for outpatient treatment.

2. Court continuing involvement

The county superior court that committed the NGRI defendant retains jurisdiction and must approve all transfers to another hospital, grounds passes, off grounds leaves, and outpatient placements. The defendant's treatment facility must submit status reports to the court every six months. (Cal. Penal Code § 1026(f)). If the court places a defendant on outpatient CONREP status, the community program director must submit status reports to the court every three months. (Cal. Penal Code § 1605(d)).

NGRI commitment is as long as the longest permitted prison sentence for the crime charged. (Cal. Penal Code § 1026.5).

The defendant is released from inpatient treatment when (1) his/her sanity is "restored" and he/she is released to CONREP as an outpatient, or (2) he/she has been in the hospital for as long as the maximum possible sentence for the underlying crime.

3. Restoration of Sanity

Restoration of Sanity is a two-step process. At the first step, if the court finds that the NGRI defendant no longer poses a danger to himself/herself or others because of a mental disorder, he/she will be released to CONREP for a year for outpatient treatment. At the second step, which occurs after a year in CONREP, the judge or jury determines whether the defendant has been "fully restored" to sanity. If so, he/she is unconditionally released from CONREP. (Cal. Penal Code §§ 1026.2(e), 1603, 1604; Foucha v. Louisiana, 504 U.S. 71 (1992)).

Restoration of sanity hearing. The NGRI defendant, the facility's medical director, or the community program director may petition the court for restoration of sanity. However, a patient can petition for restoration of sanity only once a year, and may petition for the first time only after spending at least six months on an inpatient or outpatient commitment. (Cal. Penal Code § 1026.2(d) and (j)). When the patient files a petition, the court can take no action without first obtaining a written recommendation from the medical director of the state hospital, or from the CONREP director if the patient is already on outpatient status. (Cal. Penal Code § 1026.2(I)).

4. Continuing treatment beyond the maximum commitment time

The court may extend a defendant's commitment beyond the maximum term every two years if the underlying crime was a felony and if, by reason of a mental disorder, the defendant represents a substantial danger of physical harm to others. (Cal. Penal Code § § 1026.5(b)(l), 1026.5 (b)(8)). Under this provision, a defendant can remain incarcerated indefinitely. Note, however, that these provisions require a connection between the defendant's mental status and the finding of dangerousness.

In order to extend Cal. Penal Code § 1026 commitment, the state hospitalor the local program director must submit a report recommending extension. The district attorney must then petition the court for extension. (Cal. Penal Code § 1026.5(b)(2)). A court trial determines whether the defendant is dangerous due to a mental condition. (Cal. Penal Code § 1026.5(b)(4)).


F. Mentally Disordered Offenders (MDO)

A MDO is a prisoner who, at the time of or upon termination of parole, meets the following criteria: (1) the prisoner has a treatable, severe mental disorder that was one of the causes of the commission of the crime for which she was incarcerated, (2) the disorder is not in remission or will not remain in remission without treatment, (3) the prisoner has been in treatment for the disorder for 90 days or more in the year prior to her parole or release date, (4) the disorder causes the prisoner to be dangerous to others, and (5) the crime for which the prisoner is was incarcerated involved force or violence or caused serious bodily injury. (Cal. Penal Code §§ 2960, 2962). For MDOs, mandatory mental health treatment is a condition of parole. (Cal. Penal Code §§ 2960-2981). The MDO commitment provisions apply only to persons who committed their crimes on or after January 1, 1986. Cal. Penal Code § 2980.

1. MDO Determination


The chief psychiatrist from the CDC initiates the MDO certification process by certifying to the Board of Prison Terms (BPT) that the inmate meets the MDO criteria. Upon notification by the BPT, the prisoner may either (1) agree with the certification and sign the special parole conditions, (2) refuse to sign the special parole conditions and have a parole revocation hearing, or (3) sign the special parole conditions and request a certification hearing before the board. (15 C.C.R. § 2575). The inmate receives various procedural rights before the MDO conditions attach to his/her parole. These include:

a. The right to evaluation by mental health professionals to determine whether the

inmate meets the MDO criteria. Cal. Penal Code § 2962 (d)(1)-(3).

b. The right to a certification hearing before the BPT to determine whether the inmate meets the MDO criteria. The inmate has a right to an attorney as well as the appointment of two independent evaluators. (Cal. Penal Code § 2966(a), 15 C.C.R. § 2576).

c. The right to a trial if the inmate loses at the BPT hearing. At trial, the inmate has a right to a jury and to an attorney. (Cal. Penal Code § 2966(b)).

2. Placement

Once certified, the inmate is committed for inpatient treatment at a state psychiatric hospital, unless designated officials from DMH certify that outpatient treatment is appropriate or the inmate wins an outpatient hearing before the BPT. (Cal. Penal Code § 2964). When outpatient placement is found to be appropriate, MDO parolees usually go into the Conditional Release Program (CONREP).

3. Revocation of Outpatient Status

The community program director may revoke outpatient status when the MDO parolee cannot remain safely or receive effective treatment in the community. The MDO parolee has the right to a revocation hearing conducted by the DMH within 15 days of being placed in a secure mental health facility, or within 21 days if good cause exists. In lieu of revocation, the community program director or DMH may also hospitalize an MDO parolee pursuant to the LPS civil commitment scheme. (Cal. Penal Code § 2964(a)).

4. Length of Commitment

MDO commitment is technically a special condition of parole, and thus lasts the length of the parole period. The length of the parole period is determined by statute, and depends on the type of sentence imposed. Most prisoners have a maximum parole period of three years, with a four-year maximum if parole is suspended due to revocation. The parole period is sometimes longer for more serious offenses. If a parolee refuses to sign the parole agreement, the parole authority may revoke parole and return the prisoner to custody in a correctional institution. (Cal. Penal Code §§ 3060.5, 3057; 15 C.C.R. § 2575(b)).

If a prisoner's severe mental disorder is not in remission or cannot be kept in remission without treatment, and if the parolee is therefore dangerous to others, involuntary MDO commitment may be extended for one year. (Cal. Penal Code § 2970, Cal. Penal Code § 2972(c)).

To extend MDO commitment, the district attorney files a petition with the court. (Cal. Penal Code § 2970). If the prisoner loses at the extension hearing--either before a judge or a jury--the commitment will be extended for one year. There is no limit on the number of extensions the court may order. (Cal. Penal Code § 2972).


5. Prisoner or parolee commitment

The director of CDC may also commit a dangerous or gravely disabled prisoner or parolee, who does not come within the MDO provisions of Cal. Penal Code § 2962, to a state hospital under the provisions of the LPS Act before actual release or termination of parole. (Cal. Penal Code § 2974, Cal. Welf. & Inst. Code § 5150 et seq).

G. Mentally Disorder Sex Offender (MDSO) (6316)

A Mentally Disordered Sex Offender is any person who, by reason of a mental disorder, has a predisposition to commit sexual offenses to such a degree that he/she is a danger to the health and safety of others. (Former Cal. Welf. & Inst. Code § 6300).

The MDSO statutes were repealed in 1982. However, persons committed as MDSOs before the repeal date can remain under such commitments subject to the continuing jurisdiction of the repealed statutes (former Cal. Welf. & Inst. Code §§ 6300-6331). Historical Note to Cal. Welf. & Inst. Code § 6300.

1. Placement

MDSOs are either placed in a state hospital or placed on outpatient status under the CONREP program. Former Cal. Welf. & Inst. Code §§ 6325.1, 6325.3. The mental health facility or outpatient program must submit progress reports to the court every six months. (Former Cal. Welf. & Inst. Code § 6316(b)). MDSOs committed to state hospitals have the same rights (commencing with Cal. Welf. & Inst. Code § 5325) as patients committed under civil laws. (Former Cal. Welf. & Inst. Code § 6300.2).

2. Length of Commitment

The commitment is for the longest term of imprisonment the court could have imposed. Former Cal. Welf. & Inst. Code § 6316.1.

The court can terminate an MDSO commitment in the following ways:

a. The MDSO prisoner completes the full term without an extension. (Former Cal. Welf. & Inst. Code § 6316.1).

b. The mental health care provider certifies that the MDSO is no longer a danger to the health and safety of others, and will not benefit from further care and treatment. (Former Cal. Welf. & Inst. Code § 6325(a)).

c. The mental health care provider certifies that the MDSO has not recovered and is still a danger to the health and safety of others. (Former Cal. Welf. & Inst. Code § 6325(b)). The court may not release a MDSO certified as not having recovered and still dangerous until it grants probation or makes such other disposition as it deems necessary and proper. (Former Cal. Welf. & Inst. Code § 6325.5)

In either of the latter two instances (paragraphs (2) and (3) above), the defendant is returned to the committing court to resume criminal proceedings for the underlying offense. Either party may contest the court's finding and move for a new MDSO examination and hearing. (Former Cal. Welf. & Inst. Code § 6325.2). The defendant receives credit toward any new sentence for time spent on MDSO commitment. (Former Cal. Welf. & Inst. Code § 6325).

The court may extend a defendant's commitment beyond the maximum term every two years if the underlying sex offense was a felony (or a misdemeanor committed prior to July 1, 1977), if the defendant suffers from a mental disorder, and if the defendant has a predisposition to commit sexual offenses to the degree that she presents a substantial danger of harm to others. (Former Cal. Welf. & Inst. Code § 6316.2).

3. Challenging Commitment

The MDSO defendant or the committing court may initiate proceedings to determine whether the defendant still meets the MDSO criteria. However, a MDSO can seek such a hearing only once every six months. (Former Cal. Welf. & Inst. Code § 6327). If the MDSO defendant wins at the hearing, she returns to the committing court to resume criminal proceedings for the underlying offense. If the judge finds that the defendant has not recovered and is still dangerous, she is returned to DMH under the prior MDSO commitment order.

The MDSO can also challenge the underlying criminal conviction or file a writ of habeas corpus challenging the conditions of confinement. (Cal. Welf. & Inst. Code § 7250; People v. Succop, 65 Cal. 2d 483, 421 P.2d 405, 55 Cal. Rptr. 397(1966)). If the court grants the writ, that vacates the MDSO commitment order and the underlying criminal proceedings may resume.

The MDSO may also file a writ of habeas corpus challenging commitment based on a guilty plea if the defendant did not receive proper advice of the MDSO consequences of the plea. (Bunnell v. Superior Court, 13 Cal. 3d 592, 531 P.2d 1086, 119 Cal.Rptr. 302(1975)).

H. Sexually Violent Preditors (SVP)

In 1995 the California Legislature enacted the sexually violent predator laws. They found that "a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be

at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence...that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment..."

1. Criteria for commitment

A "sexually violent preditor" is defined as a person who has been convicted of a sexually violent offence against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. (Cal. Welf. & Inst. Code § 6600(a)).

A sexually violent offense is defined as an act committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (Cal. Welf. & Inst. Code § 6600(b)).

A "diagnosed mental disorder" is defined as a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others. (Cal. Welf. & Inst. Code § 6600(c)).

"Predatory" is defined as acts is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization. (Cal. Welf. & Inst. Code § 6600(e)).

Danger to the health and safety of others does not require proof of a recent overt act while the offender is in custody. (Cal. Welf. & Inst. Code § 6600(d)).

2. Placement

Male persons committed under Cal. Welf. & Inst. Code § 6600 (pre-trial detainees) are held at Atascadero State Hospital or in county jail as they await a probable cause hearing. Once the judge or jury has determined the person is a sexually violent predator they are committed to Atascadero State Hospital in the custody of the Department of Mental Health. Women committed under this section are placed at Patton State hospital.

3. Commitment

The Director of the Department of Corrections has the authority to order the screening of the prison inmates who may fit the definition of SVP at least six months prior to the individuals’ scheduled date for release from prison. Court proceedings take place in the county where the original offense occurred upon petition of the district attorney or county counsel. After the first year of treatment a progress report must be submitted to the committing court and at that time the person has a right to request "conditional release" to the community.


I. Conditional Release Program (CONREP)

CONREP is a statewide program of mental health outpatient treatment in local communities under court supervision. When an individual is committed to CONREP, she remains within the constructive custody of the Department of Mental Health (DMH). (Penal Code §§ 1605, 1615). Courts may order outpatient commitment with CONREP instead of confinement in a state hospital. People on Incompetent to Stand Trial (IST), Not Guilty by Reason of Insanity (NGRI), Mentally Disordered Offender (MDO), and Mentally Disordered Sex Offender (MDSO) commitments are all eligible for outpatient placement in the CONREP program. Note that NGRI defendants must be committed to CONREP for one year before they can be fully "restored to sanity" and unconditionally released.

1. Placement

The director of the state hospital or treatment facility, along with the community program director, must recommend to the court that the defendant would benefit from outpatient status, and would not be a danger to the health and safety of self or others. The court then holds a hearing to approve the outpatient plan. (Cal. Penal Code §§ 1603, 1604).

For MDO patients, however, the Board of Prison Terms (BPT), rather than the court, makes the decision about CONREP placement. (Cal. Penal Code § 2964(a) and (b)).

NGRI and IST defendants charged with serious felonies (as defined in Cal. Penal Code § 1601) must first spend six months in the state hospital or other mental health facility before they are eligible for CONREP placement.

2. Length of Commitment

CONREP outpatient status lasts for one year, and is subject to renewal. After one year, the court must hold a hearing no later than 30 days from the one-year anniversary and renew, revoke, or discharge the patient from CONREP. (Cal. Penal Code § 1606). CONREP commitment does not count toward the maximum commitment term for an NGRI or MDSO patient.

Hearings are scheduled automatically after each year of CONREP placement. (Cal. Penal Code § 1606). Patients on IST commitments may also file a writ of habeas corpus asserting competence. (Cal. Welf. & Inst. Code § 7250, Cal. Penal Code § 1473). If found competent by the court, the defendant will go to trial to face the underlying criminal charges. (Cal. Penal Code § 1370(c), (d)).

Once per year, patients on NGRI commitments may also seek release from outpatient commitment by applying for complete restoration of sanity. (Cal. Penal Code §§ 1600.5, 1026.2). The court then decides whether to release the patient based upon whether she is still dangerous to self or others revoked from outpatient status, it appears


that he/she also loses any "credit time" from CONREP treatment. Thus, an NGRI patient might have to spend another year on outpatient status before being allowed to petition for full restoration of sanity. (Cal, Penal Code § 1026.2(j)).

The CONREP director may confine the patient to a mental health facility, or even a jail, pending the revocation hearing if he/she determines that the patient is dangerous to self or others. (Cal. Penal Code § 1610). However, CONREP may house the patient in the county jail only if the jail provides treatment for the patient, as well as security for both the patient and the other inmates. The patient must be separated from the general population of the jail. (Cal. Penal Code § 1610(b)). The CONREP director must submit a written application for the court's consideration within one judicial day of the transfer stating the justification for jail confinement. (Cal. Penal Code § 1610(a)). A CONREP patient confined in jail may file a writ of habeas corpus protesting the confinement. (Cal. Penal Code § 1610(c)).

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