2009 California Penal Code - Section 1016-1027 :: Chapter 4. Plea

PENAL CODE
SECTION 1016-1027

1016.  There are six kinds of pleas to an indictment or an
information, or to a complaint charging a misdemeanor or infraction:
   1. Guilty.
   2. Not guilty.
   3. Nolo contendere, subject to the approval of the court. The
court shall ascertain whether the defendant completely understands
that a plea of nolo contendere shall be considered the same as a plea
of guilty and that, upon a plea of nolo contendere, the court shall
find the defendant guilty. The legal effect of such a plea, to a
crime punishable as a felony, shall be the same as that of a plea of
guilty for all purposes. In cases other than those punishable as
felonies, the plea and any admissions required by the court during
any inquiry it makes as to the voluntariness of, and factual basis
for, the plea may not be used against the defendant as an admission
in any civil suit based upon or growing out of the act upon which the
criminal prosecution is based.
   4. A former judgment of conviction or acquittal of the offense
charged.
   5. Once in jeopardy.
   6. Not guilty by reason of insanity.
   A defendant who does not plead guilty may enter one or more of the
other pleas. A defendant who does not plead not guilty by reason of
insanity shall be conclusively presumed to have been sane at the time
of the commission of the offense charged; provided, that the court
may for good cause shown allow a change of plea at any time before
the commencement of the trial. A defendant who pleads not guilty by
reason of insanity, without also pleading not guilty, thereby admits
the commission of the offense charged.

1016.5.  (a) Prior to acceptance of a plea of guilty or nolo
contendere to any offense punishable as a crime under state law,
except offenses designated as infractions under state law, the court
shall administer the following advisement on the record to the
defendant:
   If you are not a citizen, you are hereby advised that conviction
of the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the
United States.
   (b) Upon request, the court shall allow the defendant additional
time to consider the appropriateness of the plea in light of the
advisement as described in this section. If, after January 1, 1978,
the court fails to advise the defendant as required by this section
and the defendant shows that conviction of the offense to which
defendant pleaded guilty or nolo contendere may have the consequences
for the defendant of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of
the United States, the court, on defendant's motion, shall vacate the
judgment and permit the defendant to withdraw the plea of guilty or
nolo contendere, and enter a plea of not guilty. Absent a record that
the court provided the advisement required by this section, the
defendant shall be presumed not to have received the required
advisement.
   (c) With respect to pleas accepted prior to January 1, 1978, it is
not the intent of the Legislature that a court's failure to provide
the advisement required by subdivision (a) of Section 1016.5 should
require the vacation of judgment and withdrawal of the plea or
constitute grounds for finding a prior conviction invalid. Nothing in
this section, however, shall be deemed to inhibit a court, in the
sound exercise of its discretion, from vacating a judgment and
permitting a defendant to withdraw a plea.
   (d) The Legislature finds and declares that in many instances
involving an individual who is not a citizen of the United States
charged with an offense punishable as a crime under state law, a plea
of guilty or nolo contendere is entered without the defendant
knowing that a conviction of such offense is grounds for deportation,
exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States. Therefore,
it is the intent of the Legislature in enacting this section to
promote fairness to such accused individuals by requiring in such
cases that acceptance of a guilty plea or plea of nolo contendere be
preceded by an appropriate warning of the special consequences for
such a defendant which may result from the plea. It is also the
intent of the Legislature that the court in such cases shall grant
the defendant a reasonable amount of time to negotiate with the
prosecuting agency in the event the defendant or the defendant's
counsel was unaware of the possibility of deportation, exclusion from
admission to the United States, or denial of naturalization as a
result of conviction. It is further the intent of the Legislature
that at the time of the plea no defendant shall be required to
disclose his or her legal status to the court.

1017.  Every plea must be made in open court and, may be oral or in
writing, shall be entered upon the minutes of the court, and shall be
taken down in shorthand by the official reporter if one is present.
All pleas of guilty or nolo contendere to misdemeanors or felonies
shall be oral or in writing. The plea, whether oral or in writing,
shall be in substantially the following form:
   1. If the defendant plead guilty: "The defendant pleads that he or
she is guilty of the offense charged."
   2. If he or she plead not guilty: "The defendant pleads that he or
she is not guilty of the offense charged."
   3. If he or she plead a former conviction or acquittal: "The
defendant pleads that he or she has already been convicted (or
acquitted) of the offense charged, by the judgment of the court of
____ (naming it), rendered at ____ (naming the place), on the ____
day of ____."
   4. If he or she plead once in jeopardy: "The defendant pleads that
he or she has been once in jeopardy for the offense charged
(specifying the time, place, and court)."
   5. If he or she plead not guilty by reason of insanity: "The
defendant pleads that he or she is not guilty of the offense charged
because he or she was insane at the time that he or she is alleged to
have committed the unlawful act."

1018.  Unless otherwise provided by law, every plea shall be entered
or withdrawn by the defendant himself or herself in open court. No
plea of guilty of a felony for which the maximum punishment is death,
or life imprisonment without the possibility of parole, shall be
received from a defendant who does not appear with counsel, nor shall
that plea be received without the consent of the defendant's
counsel. No plea of guilty of a felony for which the maximum
punishment is not death or life imprisonment without the possibility
of parole shall be accepted from any defendant who does not appear
with counsel unless the court shall first fully inform him or her of
the right to counsel and unless the court shall find that the
defendant understands the right to counsel and freely waives it, and
then only if the defendant has expressly stated in open court, to the
court, that he or she does not wish to be represented by counsel. On
application of the defendant at any time before judgment or within
six months after an order granting probation is made if entry of
judgment is suspended, the court may, and in case of a defendant who
appeared without counsel at the time of the plea the court shall, for
a good cause shown, permit the plea of guilty to be withdrawn and a
plea of not guilty substituted. Upon indictment or information
against a corporation a plea of guilty may be put in by counsel. This
section shall be liberally construed to effect these objects and to
promote justice.

1019.  The plea of not guilty puts in issue every material
allegation of the accusatory pleading, except those allegations
regarding previous convictions of the defendant to which an answer is
required by Section 1025.

1020.  All matters of fact tending to establish a defense other than
one specified in the fourth, fifth, and sixth subdivisions of
Section 1016, may be given in evidence under the plea of not guilty.

1021.  If the defendant was formerly acquitted on the ground of
variance between the accusatory pleading and the proof or the
accusatory pleading was dismissed upon an objection to its form or
substance, or in order to hold the defendant for a higher offense,
without a judgment of acquittal, it is not an acquittal of the same
offense.

1022.  Whenever the defendant is acquitted on the merits, he is
acquitted of the same offense, notwithstanding any defect in form or
substance in the accusatory pleading on which the trial was had.

1023.  When the defendant is convicted or acquitted or has been once
placed in jeopardy upon an accusatory pleading, the conviction,
acquittal, or jeopardy is a bar to another prosecution for the
offense charged in such accusatory pleading, or for an attempt to
commit the same, or for an offense necessarily included therein, of
which he might have been convicted under that accusatory pleading.

1024.  If the defendant refuses to answer the accusatory pleading,
by demurrer or plea, a plea of not guilty must be entered.

1025.  (a) When a defendant who is charged in the accusatory
pleading with having suffered a prior conviction pleads either guilty
or not guilty of the offense charged against him or her, he or she
shall be asked whether he or she has suffered the prior conviction.
If the defendant enters an admission, his or her answer shall be
entered in the minutes of the court, and shall, unless withdrawn by
consent of the court, be conclusive of the fact of his or her having
suffered the prior conviction in all subsequent proceedings. If the
defendant enters a denial, his or her answer shall be entered in the
minutes of the court. The refusal of the defendant to answer is
equivalent to a denial that he or she has suffered the prior
conviction.
   (b) Except as provided in subdivision (c), the question of whether
or not the defendant has suffered the prior conviction shall be
tried by the jury that tries the issue upon the plea of not guilty,
or in the case of a plea of guilty or nolo contendere, by a jury
impaneled for that purpose, or by the court if a jury is waived.
   (c) Notwithstanding the provisions of subdivision (b), the
question of whether the defendant is the person who has suffered the
prior conviction shall be tried by the court without a jury.
   (d) Subdivision (c) shall not apply to prior convictions alleged
pursuant to Section 190.2 or to prior convictions alleged as an
element of a charged offense.
   (e) If the defendant pleads not guilty, and answers that he or she
has suffered the prior conviction, the charge of the prior
conviction shall neither be read to the jury nor alluded to during
trial, except as otherwise provided by law.
   (f) Nothing in this section alters existing law regarding the use
of prior convictions at trial.

1026.  (a) When a defendant pleads not guilty by reason of insanity,
and also joins with it another plea or pleas, the defendant shall
first be tried as if only such other plea or pleas had been entered,
and in that trial the defendant shall be conclusively presumed to
have been sane at the time the offense is alleged to have been
committed. If the jury shall find the defendant guilty, or if the
defendant pleads only not guilty by reason of insanity, then the
question whether the defendant was sane or insane at the time the
offense was committed shall be promptly tried, either before the same
jury or before a new jury in the discretion of the court. In that
trial, the jury shall return a verdict either that the defendant was
sane at the time the offense was committed or was insane at the time
the offense was committed. If the verdict or finding is that the
defendant was sane at the time the offense was committed, the court
shall sentence the defendant as provided by law. If the verdict or
finding be that the defendant was insane at the time the offense was
committed, the court, unless it shall appear to the court that the
sanity of the defendant has been recovered fully, shall direct that
the defendant be confined in a state hospital for the care and
treatment of the mentally disordered or any other appropriate public
or private treatment facility approved by the community program
director, or the court may order the defendant placed on outpatient
status pursuant to Title 15 (commencing with Section 1600) of Part 2.
   (b) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall order the community program
director or a designee to evaluate the defendant and to submit to the
court within 15 judicial days of the order a written recommendation
as to whether the defendant should be placed on outpatient status or
confined in a state hospital or other treatment facility. No person
shall be admitted to a state hospital or other treatment facility or
placed on outpatient status under this section without having been
evaluated by the community program director or a designee. If,
however, it appears to the court that the sanity of the defendant has
been recovered fully, the defendant shall be remanded to the custody
of the sheriff until the issue of sanity shall have been finally
determined in the manner prescribed by law. A defendant committed to
a state hospital or other treatment facility or placed on outpatient
status pursuant to Title 15 (commencing with Section 1600) of Part 2
shall not be released from confinement, parole, or outpatient status
unless and until the court which committed the person shall, after
notice and hearing, find and determine that the person's sanity has
been restored. Nothing in this section shall prevent the transfer of
the patient from one state hospital to any other state hospital by
proper authority. Nothing in this section shall prevent the transfer
of the patient to a hospital in another state in the manner provided
in Section 4119 of the Welfare and Institutions Code.
   (c) If the defendant is committed or transferred to a state
hospital pursuant to this section, the court may, upon receiving the
written recommendation of the medical director of the state hospital
and the community program director that the defendant be transferred
to a public or private treatment facility approved by the community
program director, order the defendant transferred to that facility.
If the defendant is committed or transferred to a public or private
treatment facility approved by the community program director, the
court may, upon receiving the written recommendation of the community
program director, order the defendant transferred to a state
hospital or to another public or private treatment facility approved
by the community program director. Where either the defendant or the
prosecuting attorney chooses to contest either kind of order of
transfer, a petition may be filed in the court requesting a hearing
which shall be held if the court determines that sufficient grounds
exist. At that hearing, the prosecuting attorney or the defendant may
present evidence bearing on the order of transfer. The court shall
use the same procedures and standards of proof as used in conducting
probation revocation hearings pursuant to Section 1203.2.
   (d) Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
   (e) When the court, after considering the placement recommendation
of the community program director required in subdivision (b),
orders that the defendant be confined in a state hospital or other
public or private treatment facility, the court shall provide copies
of the following documents which shall be taken with the defendant to
the state hospital or other treatment facility where the defendant
is to be confined:
   (1) The commitment order, including a specification of the
charges.
   (2) A computation or statement setting forth the maximum term of
commitment in accordance with Section 1026.5.
   (3) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
   (4) State Summary Criminal History information.
   (5) Any arrest reports prepared by the police department or other
law enforcement agency.
   (6) Any court-ordered psychiatric examination or evaluation
reports.
   (7) The community program director's placement recommendation
report.
   (f) If the defendant is confined in a state hospital or other
treatment facility as an inpatient, the medical director of the
facility shall, at six-month intervals, submit a report in writing to
the court and the community program director of the county of
commitment, or a designee, setting forth the status and progress of
the defendant. The court shall transmit copies of these reports to
the prosecutor and defense counsel.
   (g) When directing that the defendant be confined in a state
hospital pursuant to subdivision (a), the court shall select the
state hospital in accordance with the policies established by the
State Department of Mental Health.
   (h) For purposes of this section and Sections 1026.1 to 1026.6,
inclusive, "community program director" means the person, agency, or
entity designated by the State Department of Mental Health pursuant
to Section 1605 of this code and Section 5709.8 of the Welfare and
Institutions Code.

1026.1.  A person committed to a state hospital or other treatment
facility under the provisions of Section 1026 shall be released from
the state hospital or other treatment facility only under one or more
of the following circumstances:
   (a) Pursuant to the provisions of Section 1026.2.
   (b) Upon expiration of the maximum term of commitment as provided
in subdivision (a) of Section 1026.5, except as such term may be
extended under the provisions of subdivision (b) of Section 1026.5.
   (c) As otherwise expressly provided in Title 15 (commencing with
Section 1600) of Part 2.

1026.2.  (a) An application for the release of a person who has been
committed to a state hospital or other treatment facility, as
provided in Section 1026, upon the ground that sanity has been
restored, may be made to the superior court of the county from which
the commitment was made, either by the person, or by the medical
director of the state hospital or other treatment facility to which
the person is committed or by the community program director where
the person is on outpatient status under Title 15 (commencing with
Section 1600). The court shall give notice of the hearing date to the
prosecuting attorney, the community program director or a designee,
and the medical director or person in charge of the facility
providing treatment to the committed person at least 15 judicial days
in advance of the hearing date.
   (b) Pending the hearing, the medical director or person in charge
of the facility in which the person is confined shall prepare a
summary of the person's programs of treatment and shall forward the
summary to the community program director or a designee and to the
court. The community program director or a designee shall review the
summary and shall designate a facility within a reasonable distance
from the court in which the person may be detained pending the
hearing on the application for release. The facility so designated
shall continue the program of treatment, shall provide adequate
security, and shall, to the greatest extent possible, minimize
interference with the person's program of treatment.
   (c) A designated facility need not be approved for 72-hour
treatment and evaluation pursuant to the Lanterman-Petris-Short Act
(Part 1 (commencing with Section 5000) of Division 5 of the Welfare
and Institutions Code). However, a county jail may not be designated
unless the services specified in subdivision (b) are provided and
accommodations are provided which ensure both the safety of the
person and the safety of the general population of the jail. If there
is evidence that the treatment program is not being complied with or
accommodations have not been provided which ensure both the safety
of the committed person and the safety of the general population of
the jail, the court shall order the person transferred to an
appropriate facility or make any other appropriate order, including
continuance of the proceedings.
   (d) No hearing upon the application shall be allowed until the
person committed has been confined or placed on outpatient status for
a period of not less than 180 days from the date of the order of
commitment.
   (e) The court shall hold a hearing to determine whether the person
applying for restoration of sanity would be a danger to the health
and safety of others, due to mental defect, disease, or disorder, if
under supervision and treatment in the community. If the court at the
hearing determines the applicant will not be a danger to the health
and safety of others, due to mental defect, disease, or disorder,
while under supervision and treatment in the community, the court
shall order the applicant placed with an appropriate forensic
conditional release program for one year. All or a substantial
portion of the program shall include outpatient supervision and
treatment. The court shall retain jurisdiction. The court at the end
of the one year, shall have a trial to determine if sanity has been
restored, which means the applicant is no longer a danger to the
health and safety of others, due to mental defect, disease, or
disorder. The court shall not determine whether the applicant has
been restored to sanity until the applicant has completed the one
year in the appropriate forensic conditional release program, unless
the community program director sooner makes a recommendation for
restoration of sanity and unconditional release as described in
subdivision (h). The court shall notify the persons required to be
notified in subdivision (a) of the hearing date.
   (f) If the applicant is on parole or outpatient status and has
been on it for one year or longer, then it is deemed that the
applicant has completed the required one year in an appropriate
forensic conditional release program and the court shall, if all
other applicable provisions of law have been met, hold the trial on
restoration of sanity as provided for in this section.
   (g) Before placing an applicant in an appropriate forensic
conditional release program, the community program director shall
submit to the court a written recommendation as to what forensic
conditional release program is the most appropriate for supervising
and treating the applicant. If the court does not accept the
community program director's recommendation, the court shall specify
the reason or reasons for its order on the court record. Sections
1605 to 1610, inclusive, shall be applicable to the person placed in
the forensic conditional release program unless otherwise ordered by
the court.
   (h) If the court determines that the person should be transferred
to an appropriate forensic conditional release program, the community
program director or a designee shall make the necessary placement
arrangements, and, within 21 days after receiving notice of the court
finding, the person shall be placed in the community in accordance
with the treatment and supervision plan, unless good cause for not
doing so is made known to the court.
   During the one year of supervision and treatment, if the community
program director is of the opinion that the person is no longer a
danger to the health and safety of others due to a mental defect,
disease, or disorder, the community program director shall submit a
report of his or her opinion and recommendations to the committing
court, the prosecuting attorney, and the attorney for the person. The
court shall then set and hold a trial to determine whether
restoration of sanity and unconditional release should be granted.
The trial shall be conducted in the same manner as is required at the
end of one full year of supervision and treatment.
   (i) If at the trial for restoration of sanity the court rules
adversely to the applicant, the court may place the applicant on
outpatient status, pursuant to Title 15 (commencing with Section
1600) of Part 2, unless the applicant does not meet all of the
requirements of Section 1603.
   (j) If the court denies the application to place the person in an
appropriate forensic conditional release program or if restoration of
sanity is denied, no new application may be filed by the person
until one year has elapsed from the date of the denial.
   (k) In any hearing authorized by this section, the applicant shall
have the burden of proof by a preponderance of the evidence.
   (l) If the application for the release is not made by the medical
director of the state hospital or other treatment facility to which
the person is committed or by the community program director where
the person is on outpatient status under Title 15 (commencing with
Section 1600), no action on the application shall be taken by the
court without first obtaining the written recommendation of the
medical director of the state hospital or other treatment facility or
of the community program director where the person is on outpatient
status under Title 15 (commencing with Section 1600).
   (m) This subdivision shall apply only to persons who, at the time
of the petition or recommendation for restoration of sanity, are
subject to a term of imprisonment with prison time remaining to serve
or are subject to the imposition of a previously stayed sentence to
a term of imprisonment. Any person to whom this subdivision applies
who petitions or is recommended for restoration of sanity may not be
placed in a forensic conditional release program for one year, and a
finding of restoration of sanity may be made without the person being
in a forensic conditional release program for one year. If a finding
of restoration of sanity is made, the person shall be transferred to
the custody of the California Department of Corrections to serve the
term of imprisonment remaining or shall be transferred to the
appropriate court for imposition of the sentence that is pending,
whichever is applicable.

1026.3.  A person committed to a state hospital or other treatment
facility under Section 1026, and a person placed pursuant to
subdivision (e) of Section 1026.2 as amended by Section 3.5 of
Chapter 1488 of the Statutes of 1984, may be placed on outpatient
status from the commitment as provided in Title 15 (commencing with
Section 1600) of Part 2.

1026.4.  (a) Every person committed to a state hospital or other
public or private mental health facility pursuant to the provisions
of Section 1026, who escapes from or who escapes while being conveyed
to or from the state hospital or facility, is punishable by
imprisonment in the county jail not to exceed one year or in a 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 1026 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.

1026.5.  (a) (1) In the case of any person committed to a state
hospital or other treatment facility pursuant to Section 1026 or
placed on outpatient status pursuant to Section 1604, who committed a
felony on or after July 1, 1977, the court shall state in the
commitment order the maximum term of commitment, and the person may
not be kept in actual custody longer than the maximum term of
commitment, except as provided in this section. For the purposes of
this section, "maximum term of commitment" shall mean the longest
term of imprisonment which could have been imposed for the offense or
offenses of which the person was convicted, including the upper term
of the base offense and any additional terms for enhancements and
consecutive sentences which could have been imposed less any
applicable credits as defined by Section 2900.5, and disregarding any
credits which could have been earned pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3.
   (2) In the case of a person confined in a state hospital or other
treatment facility pursuant to Section 1026 or placed on outpatient
status pursuant to Section 1604, who committed a felony prior to July
1, 1977, and who could have been sentenced under Section 1168 or
1170 if the offense was committed after July 1, 1977, the Board of
Prison Terms shall determine the maximum term of commitment which
could have been imposed under paragraph (1), and the person may not
be kept in actual custody longer than the maximum term of commitment,
except as provided in subdivision (b). The time limits of this
section are not jurisdictional.
   In fixing a term under this section, the board shall utilize the
upper term of imprisonment which could have been imposed for the
offense or offenses of which the person was convicted, increased by
any additional terms which could have been imposed based on matters
which were found to be true in the committing court. However, if at
least two of the members of the board after reviewing the person's
file determine that a longer term should be imposed for the reasons
specified in Section 1170.2, a longer term may be imposed following
the procedures and guidelines set forth in Section 1170.2, except
that any hearings deemed necessary by the board shall be held within
90 days of September 28, 1979. Within 90 days of the date the person
is received by the state hospital or other treatment facility, or of
September 28, 1979, whichever is later, the Board of Prison Terms
shall provide each person with the determination of the person's
maximum term of commitment or shall notify the person that a hearing
will be scheduled to determine the term.
   Within 20 days following the determination of the maximum term of
commitment the board shall provide the person, the prosecuting
attorney, the committing court, and the state hospital or other
treatment facility with a written statement setting forth the maximum
term of commitment, the calculations, and any materials considered
in determining the maximum term.
   (3) In the case of a person committed to a state hospital or other
treatment facility pursuant to Section 1026 or placed on outpatient
status pursuant to Section 1604 who committed a misdemeanor, the
maximum term of commitment shall be the longest term of county jail
confinement which could have been imposed for the offense or offenses
which the person was found to have committed, and the person may not
be kept in actual custody longer than this maximum term.
   (4) Nothing in this subdivision limits the power of any state
hospital or other treatment facility or of the committing court to
release the person, conditionally or otherwise, for any period of
time allowed by any other provision of law.
   (b) (1) A person may be committed beyond the term prescribed by
subdivision (a) only under the procedure set forth in this
subdivision and only if the person has been committed under Section
1026 for a felony and by reason of a mental disease, defect, or
disorder represents a substantial danger of physical harm to others.
   (2) Not later than 180 days prior to the termination of the
maximum term of commitment prescribed in subdivision (a), the medical
director of a state hospital in which the person is being treated,
or the medical director of the person's treatment facility or the
local program director, if the person is being treated outside a
state hospital setting, shall submit to the prosecuting attorney his
or her opinion as to whether or not the patient is a person described
in paragraph (1). If requested by the prosecuting attorney, the
opinion shall be accompanied by supporting evaluations and relevant
hospital records. The prosecuting attorney may then file a petition
for extended commitment in the superior court which issued the
original commitment. The petition shall be filed no later than 90
days before the expiration of the original commitment unless good
cause is shown. The petition shall state the reasons for the extended
commitment, with accompanying affidavits specifying the factual
basis for believing that the person meets each of the requirements
set forth in paragraph (1).
   (3) When the petition is filed, the court shall advise the person
named in the petition of the right to be represented by an attorney
and of the right to a jury trial. The rules of discovery in criminal
cases shall apply. If the person is being treated in a state hospital
when the petition is filed, the court shall notify the community
program director of the petition and the hearing date.
   (4) The court shall conduct a hearing on the petition for extended
commitment. The trial shall be by jury unless waived by both the
person and the prosecuting attorney. The trial shall commence no
later than 30 calendar days prior to the time the person would
otherwise have been released, unless that time is waived by the
person or unless good cause is shown.
   (5) Pending the hearing, the medical director or person in charge
of the facility in which the person is confined shall prepare a
summary of the person's programs of treatment and shall forward the
summary to the community program director or a designee, and to the
court. The community program director or a designee shall review the
summary and shall designate a facility within a reasonable distance
from the court in which the person may be detained pending the
hearing on the petition for extended commitment. The facility so
designated shall continue the program of treatment, shall provide
adequate security, and shall, to the greatest extent possible,
minimize interference with the person's program of treatment.
   (6) A designated facility need not be approved for 72-hour
treatment and evaluation pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code). However, a county
jail may not be designated unless the services specified in paragraph
(5) are provided and accommodations are provided which ensure both
the safety of the person and the safety of the general population of
the jail. If there is evidence that the treatment program is not
being complied with or accommodations have not been provided which
ensure both the safety of the committed person and the safety of the
general population of the jail, the court shall order the person
transferred to an appropriate facility or make any other appropriate
order, including continuance of the proceedings.
   (7) The person shall be entitled to the rights guaranteed under
the federal and State Constitutions for criminal proceedings. All
proceedings shall be in accordance with applicable constitutional
guarantees. The state shall be represented by the district attorney
who shall notify the Attorney General in writing that a case has been
referred under this section. If the person is indigent, the county
public defender or State Public Defender shall be appointed. The
State Public Defender may provide for representation of the person in
any manner authorized by Section 15402 of the Government Code.
Appointment of necessary psychologists or psychiatrists shall be made
in accordance with this article and Penal Code and Evidence Code
provisions applicable to criminal defendants who have entered pleas
of not guilty by reason of insanity.
   (8) If the court or jury finds that the patient is a person
described in paragraph (1), the court shall order the patient
recommitted to the facility in which the patient was confined at the
time the petition was filed. This commitment shall be for an
additional period of two years from the date of termination of the
previous commitment, and the person may not be kept in actual custody
longer than two years unless another extension of commitment is
obtained in accordance with the provisions of this subdivision. Time
spent on outpatient status, except when placed in a locked facility
at the direction of the outpatient supervisor, shall not count as
actual custody and shall not be credited toward the person's maximum
term of commitment or toward the person's term of extended
commitment.
   (9) A person committed under this subdivision shall be eligible
for release to outpatient status pursuant to the provisions of Title
15 (commencing with Section 1600) of Part 2.
   (10) Prior to termination of a commitment under this subdivision,
a petition for recommitment may be filed to determine whether the
patient remains a person described in paragraph (1). The recommitment
proceeding shall be conducted in accordance with the provisions of
this subdivision.
   (11) Any commitment under this subdivision places an affirmative
obligation on the treatment facility to provide treatment for the
underlying causes of the person's mental disorder.

1026.6.  Whenever any person who has been committed to a state
hospital pursuant to Section 1026 is released for any reason,
including placement on outpatient status, the director of the
hospital shall notify the community program director of the county,
and the chief law enforcement officer of the jurisdiction, in which
the person will reside upon release, if that information is
available.

1027.  (a) When a defendant pleads not guilty by reason of insanity
the court must select and appoint two, and may select and appoint
three, psychiatrists, or licensed psychologists who have a doctoral
degree in psychology and at least five years of postgraduate
experience in the diagnosis and treatment of emotional and mental
disorders, to examine the defendant and investigate his mental
status. It is the duty of the psychiatrists or psychologists so
selected and appointed to make the examination and investigation, and
to testify, whenever summoned, in any proceeding in which the sanity
of the defendant is in question. The psychiatrists or psychologists
so appointed by the court shall be allowed, in addition to their
actual traveling expenses, such fees as in the discretion of the
court seems just and reasonable, having regard to the services
rendered by the witnesses. The fees allowed shall be paid by the
county where the indictment was found or in which the defendant was
held for trial.
   (b) Any report on the examination and investigation made pursuant
to subdivision (a) shall include, but not be limited to, the
psychological history of the defendant, the facts surrounding the
commission of the acts forming the basis for the present charge used
by the psychiatrist or psychologist in making his examination of the
defendant, and the present psychological or psychiatric symptoms of
the defendant, if any.
   (c) This section does not presume that a psychiatrist or
psychologist can determine whether a defendant was sane or insane at
the time of the alleged offense. This section does not limit a court'
s discretion to admit or exclude, pursuant to the Evidence Code,
psychiatric or psychological evidence about the defendant's state of
mind or mental or emotional condition at the time of the alleged
offense.
   (d) Nothing contained in this section shall be deemed or construed
to prevent any party to any criminal action from producing any other
expert evidence with respect to the mental status of the defendant;
where expert witnesses are called by the district attorney in such
action, they shall only be entitled to such witness fees as may be
allowed by the court.
   (e) Any psychiatrist or psychologist so appointed by the court may
be called by either party to the action or by the court itself and
when so called shall be subject to all legal objections as to
competency and bias and as to qualifications as an expert. When
called by the court, or by either party, to the action, the court may
examine the psychiatrist, or psychologist as deemed necessary, but
either party shall have the same right to object to the questions
asked by the court and the evidence adduced as though the
psychiatrist or psychologist were a witness for the adverse party.
When the psychiatrist or psychologist is called and examined by the
court the parties may cross-examine him in the order directed by the
court. When called by either party to the action the adverse party
may examine him the same as in the case of any other witness called
by such party.

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