2009 California Penal Code - Section 2960-2981 :: Article 4. Disposition Of Mentally Disordered Prisoners Upon Discharge

PENAL CODE
SECTION 2960-2981

2960.  The Legislature finds that there are prisoners who have a
treatable, severe mental disorder that was one of the causes of, or
was an aggravating factor in the commission of the crime for which
they were incarcerated. Secondly, the Legislature finds that if the
severe mental disorders of those prisoners are not in remission or
cannot be kept in remission at the time of their parole or upon
termination of parole, there is a danger to society, and the state
has a compelling interest in protecting the public. Thirdly, the
Legislature finds that in order to protect the public from those
persons it is necessary to provide mental health treatment until the
severe mental disorder which was one of the causes of or was an
aggravating factor in the person's prior criminal behavior is in
remission and can be kept in remission.
   The Legislature further finds and declares the Department of
Corrections should evaluate each prisoner for severe mental disorders
during the first year of the prisoner's sentence, and that severely
mentally disordered prisoners should be provided with an appropriate
level of mental health treatment while in prison and when returned to
the community.

2962.  As a condition of parole, a prisoner who meets the following
criteria shall be required to be treated by the State Department of
Mental Health, and the State Department of Mental Health shall
provide the necessary treatment:
   (a) The prisoner has a severe mental disorder that is not in
remission or cannot be kept in remission without treatment.
   The term "severe mental disorder" means an illness or disease or
condition that substantially impairs the person's thought, perception
of reality, emotional process, or judgment; or which grossly impairs
behavior; or that demonstrates evidence of an acute brain syndrome
for which prompt remission, in the absence of treatment, is unlikely.
The term "severe mental disorder" as used in this section does not
include a personality or adjustment disorder, epilepsy, mental
retardation or other developmental disabilities, or addiction to or
abuse of intoxicating substances.
   The term "remission" means a finding that the overt signs and
symptoms of the severe mental disorder are controlled either by
psychotropic medication or psychosocial support. A person "cannot be
kept in remission without treatment" if during the year prior to the
question being before the Board of Prison Terms or a trial court, he
or she has been in remission and he or she has been physically
violent, except in self-defense, or he or she has made a serious
threat of substantial physical harm upon the person of another so as
to cause the target of the threat to reasonably fear for his or her
safety or the safety of his or her immediate family, or he or she has
intentionally caused property damage, or he or she has not
voluntarily followed the treatment plan. In determining if a person
has voluntarily followed the treatment plan, the standard shall be
whether the person has acted as a reasonable person would in
following the treatment plan.
   (b) The severe mental disorder was one of the causes of or was an
aggravating factor in the commission of a crime for which the
prisoner was sentenced to prison.
   (c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the prisoner's
parole or release.
   (d) (1) Prior to release on parole, the person in charge of
treating the prisoner and a practicing psychiatrist or psychologist
from the State Department of Mental Health have evaluated the
prisoner at a facility of the Department of Corrections, and a chief
psychiatrist of the Department of Corrections has certified to the
Board of Prison Terms that the prisoner has a severe mental disorder,
that the disorder is not in remission, or cannot be kept in
remission without treatment, that the severe mental disorder was one
of the causes or was an aggravating factor in the prisoner's criminal
behavior, that the prisoner has been in treatment for the severe
mental disorder for 90 days or more within the year prior to his or
her parole release day, and that by reason of his or her severe
mental disorder the prisoner represents a substantial danger of
physical harm to others. For prisoners being treated by the State
Department of Mental Health pursuant to Section 2684, the
certification shall be by a chief psychiatrist of the Department of
Corrections, and the evaluation shall be done at a state hospital by
the person at the state hospital in charge of treating the prisoner
and a practicing psychiatrist or psychologist from the Department of
Corrections.
   (2) If the professionals doing the evaluation pursuant to
paragraph (1) do not concur that (A) the prisoner has a severe mental
disorder, (B) that the disorder is not in remission or cannot be
kept in remission without treatment, or (C) that the severe mental
disorder was a cause of, or aggravated, the prisoner's criminal
behavior, and a chief psychiatrist has certified the prisoner to the
Board of Prison Terms pursuant to this paragraph, then the Board of
Prison Terms shall order a further examination by two independent
professionals, as provided for in Section 2978.
   (3) Only if both independent professionals who evaluate the
prisoner pursuant to paragraph (2) concur with the chief psychiatrist'
s certification of the issues described in paragraph (2), shall this
subdivision be applicable to the prisoner. The professionals
appointed pursuant to Section 2978 shall inform the prisoner that the
purpose of their examination is not treatment but to determine if
the prisoner meets certain criteria to be involuntarily treated as a
mentally disordered offender. It is not required that the prisoner
appreciate or understand that information.
   (e) The crime referred to in subdivision (b) meets both of the
following criteria:
   (1) The defendant received a determinate sentence pursuant to
Section 1170 for the crime.
   (2) The crime is one of the following:
   (A) Voluntary manslaughter.
   (B) Mayhem.
   (C) Kidnapping in violation of Section 207.
   (D) Any robbery wherein it was charged and proved that the
defendant personally used a deadly or dangerous weapon, as provided
in subdivision (b) of Section 12022, in the commission of that
robbery.
   (E) Carjacking, as defined in subdivision (a) of Section 215, if
it is charged and proved that the defendant personally used a deadly
or dangerous weapon, as provided in subdivision (b) of Section 12022,
in the commission of the carjacking.
   (F) Rape, as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
   (G) Sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
   (H) Oral copulation by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another
person.
   (I) Lewd acts on a child under the age of 14 years in violation of
Section 288.
   (J) Continuous sexual abuse in violation of Section 288.5.
   (K) The offense described in subdivision (a) of Section 289 where
the act was accomplished against the victim's will by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
   (L) Arson in violation of subdivision (a) of Section 451, or arson
in violation of any other provision of Section 451 or in violation
of Section 455 where the act posed a substantial danger of physical
harm to others.
   (M) Any felony in which the defendant used a firearm which use was
charged and proved as provided in Section 12022.5, 12022.53, or
12022.55.
   (N) A violation of Section 12308.
   (O) Attempted murder.
   (P) A crime not enumerated in subparagraphs (A) to (O), inclusive,
in which the prisoner used force or violence, or caused serious
bodily injury as defined in paragraph (4) of subdivision (f) of
Section 243.
   (Q) A crime in which the perpetrator expressly or impliedly
threatened another with the use of force or violence likely to
produce substantial physical harm in such a manner that a reasonable
person would believe and expect that the force or violence would be
used. For purposes of this subparagraph, substantial physical harm
shall not require proof that the threatened act was likely to cause
great or serious bodily injury.
   (f) As used in this chapter, "substantial danger of physical harm"
does not require proof of a recent overt act.

2964.  (a) The treatment required by Section 2962 shall be inpatient
unless the State Department of Mental Health certifies to the Board
of Prison Terms that there is reasonable cause to believe the parolee
can be safely and effectively treated on an outpatient basis, in
which case the Board of Prison Terms shall permit the State
Department of Mental Health to place the parolee in an outpatient
treatment program specified by the State Department of Mental Health.
Any prisoner who is to be required to accept treatment pursuant to
Section 2962 shall be informed in writing of his or her right to
request a hearing pursuant to Section 2966. Prior to placing a
parolee in a local outpatient program, the State Department of Mental
Health shall consult with the local outpatient program as to the
appropriate treatment plan. Notwithstanding any other law, a parolee
ordered to have outpatient treatment pursuant to this section may be
placed in an outpatient treatment program used to provide outpatient
treatment under Title 15 (commencing with Section 1600) of Part 2,
but the procedural provisions of Title 15 shall not apply. The
community program director or a designee of an outpatient program
used to provide treatment under Title 15 in which a parolee is
placed, may place the parolee, or cause the parolee to be placed, in
a secure mental health facility if the parolee can no longer be
safely or effectively treated in the outpatient program, and until
the parolee can be safely and effectively treated in the program.
Upon the request of the community program director or a designee, a
peace officer shall take the parolee into custody and transport the
parolee, or cause the parolee to be taken into custody and
transported, to a facility designated by the community program
director, or a designee, for confinement under this section. Within
15 days after placement in a secure facility the State Department of
Mental Health shall conduct a hearing on whether the parolee can be
safely and effectively treated in the program unless the patient or
the patient's attorney agrees to a continuance, or unless good cause
exists that prevents the State Department of Mental Health from
conducting the hearing within that period of time. If good cause
exists, the hearing shall be held within 21 days after placement in a
secure facility. For purposes of this section, "good cause" means
the inability to secure counsel, an interpreter, or witnesses for the
hearing within the 15-day time period. Before deciding to seek
revocation of the parole of a parolee receiving mental health
treatment pursuant to Section 2962, and return him or her to prison,
the parole officer shall consult with the director of the parolee's
outpatient program. Nothing in this section shall prevent
hospitalization pursuant to Section 5150, 5250, or 5353 of the
Welfare and Institutions Code.
   (b) If the State Department of Mental Health has not placed a
parolee on outpatient treatment within 60 days after receiving
custody of the parolee or after parole is continued pursuant to
Section 3001, the parolee may request a hearing before the Board of
Prison Terms, and the board shall conduct a hearing to determine
whether the prisoner shall be treated as an inpatient or an
outpatient. At the hearing, the burden shall be on the State
Department of Mental Health to establish that the prisoner requires
inpatient treatment as described in this subdivision. If the prisoner
or any person appearing on his or her behalf at the hearing requests
it, the board shall appoint two independent professionals as
provided for in Section 2978.

2966.  (a) A prisoner may request a hearing before the Board of
Prison Terms, and the board shall conduct a hearing if so requested,
for the purpose of proving that the prisoner meets the criteria in
Section 2962. At the hearing, the burden of proof shall be on the
person or agency who certified the prisoner under subdivision (d) of
Section 2962. If the prisoner or any person appearing on his or her
behalf at the hearing requests it, the board shall appoint two
independent professionals as provided for in Section 2978. The
prisoner shall be informed at the hearing of his or her right to
request a trial pursuant to subdivision (b). The Board of Prison
Terms shall provide a prisoner who requests a trial, a petition form
and instructions for filing the petition.
   (b) A prisoner who disagrees with the determination of the Board
of Prison Terms that he or she meets the criteria of Section 2962,
may file in the superior court of the county in which he or she is
incarcerated or is being treated a petition for a hearing on whether
he or she, as of the date of the Board of Prison Terms hearing, met
the criteria of Section 2962. The court shall conduct a hearing on
the petition within 60 calendar days after the petition is filed,
unless either time is waived by the petitioner or his or her counsel,
or good cause is shown. Evidence offered for the purpose of proving
the prisoner's behavior or mental status subsequent to the Board of
Prison Terms hearing shall not be considered. The order of the Board
of Prison Terms shall be in effect until the completion of the court
proceedings. The court shall advise the petitioner of his or her
right to be represented by an attorney and of the right to a jury
trial. The attorney for the petitioner shall be given a copy of the
petition, and any supporting documents. The hearing shall be a civil
hearing; however, in order to reduce costs, the rules of criminal
discovery, as well as civil discovery, shall be applicable. The
standard of proof shall be beyond a reasonable doubt, and if the
trial is by jury, the jury shall be unanimous in its verdict. The
trial shall be by jury unless waived by both the person and the
district attorney. The court may, upon stipulation of both parties,
receive in evidence the affidavit or declaration of any psychiatrist,
psychologist, or other professional person who was involved in the
certification and hearing process, or any professional person
involved in the evaluation or treatment of the petitioner during the
certification process. The court may allow the affidavit or
declaration to be read and the contents thereof considered in the
rendering of a decision or verdict in any proceeding held pursuant to
subdivision (b) or (c), or subdivision (a) of Section 2972. If the
court or jury reverses the determination of the Board of Prison
Terms, the court shall stay the execution of the decision for five
working days to allow for an orderly release of the prisoner.
   (c) If the Board of Prison Terms continues a parolee's mental
health treatment under Section 2962 when it continues the parolee's
parole under Section 3001, the procedures of this section shall only
be applicable for the purpose of determining if the parolee has a
severe mental disorder, whether the parolee's severe mental disorder
is not in remission or cannot be kept in remission without treatment,
and whether by reason of his or her severe mental disorder, the
parolee represents a substantial danger of physical harm to others.

2968.  If the prisoner's severe mental disorder is put into
remission during the parole period, and can be kept in remission, the
Director of Mental Health shall notify the Board of Prison Terms and
the State Department of Mental Health shall discontinue treating the
parolee.

2970.  Not later than 180 days prior to the termination of parole,
or release from prison if the prisoner refused to agree to treatment
as a condition of parole as required by Section 2962, unless good
cause is shown for the reduction of that 180-day period, if the
prisoner's severe mental disorder is not in remission or cannot be
kept in remission without treatment, the medical director of the
state hospital which is treating the parolee, or the community
program director in charge of the parolee's outpatient program, or
the Director of Corrections, shall submit to the district attorney of
the county in which the parolee is receiving outpatient treatment,
or for those in prison or in a state mental hospital, the district
attorney of the county of commitment, his or her written evaluation
on remission. If requested by the district attorney, the written
evaluation shall be accompanied by supporting affidavits.
   The district attorney may then file a petition with the superior
court for continued involuntary treatment for one year. The petition
shall be accompanied by affidavits specifying that treatment, while
the prisoner was released from prison on parole, has been
continuously provided by the State Department of Mental Health either
in a state hospital or in an outpatient program. The petition shall
also specify that the prisoner has a severe mental disorder, that the
severe mental disorder is not in remission or cannot be kept in
remission if the person's treatment is not continued, and that, by
reason of his or her severe mental disorder, the prisoner represents
a substantial danger of physical harm to others.

2972.  (a) The court shall conduct a hearing on the petition under
Section 2970 for continued treatment. The court shall advise the
person of his or her right to be represented by an attorney and of
the right to a jury trial. The attorney for the person shall be given
a copy of the petition, and any supporting documents. The hearing
shall be a civil hearing, however, in order to reduce costs the rules
of criminal discovery, as well as civil discovery, shall be
applicable.
   The standard of proof under this section shall be proof beyond a
reasonable doubt, and if the trial is by jury, the jury shall be
unanimous in its verdict. The trial shall be by jury unless waived by
both the person and the district attorney. The trial shall commence
no later than 30 calendar days prior to the time the person would
otherwise have been released, unless the time is waived by the person
or unless good cause is shown.
   (b) The people shall be represented by the district attorney. If
the person is indigent, the county public defender shall be
appointed.
   (c) If the court or jury finds that the patient has a severe
mental disorder, that the patient's severe mental disorder is not in
remission or cannot be kept in remission without treatment, and that
by reason of his or her severe mental disorder, the patient
represents a substantial danger of physical harm to others, the court
shall order the patient recommitted to the facility in which the
patient was confined at the time the petition was filed, or
recommitted to the outpatient program in which he or she was being
treated at the time the petition was filed, or committed to the State
Department of Mental Health if the person was in prison. The
commitment shall be for a period of one year from the date of
termination of parole or a previous commitment or the scheduled date
of release from prison as specified in Section 2970. 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.
   (d) A person shall be released on outpatient status if the
committing court finds that there is reasonable cause to believe that
the committed person can be safely and effectively treated on an
outpatient basis. Except as provided in this subdivision, the
provisions of Title 15 (commencing with Section 1600) of Part 2,
shall apply to persons placed on outpatient status pursuant to this
paragraph. The standard for revocation under Section 1609 shall be
that the person cannot be safely and effectively treated on an
outpatient basis.
   (e) Prior to the termination of a commitment under this section, a
petition for recommitment may be filed to determine whether the
patient's severe mental disorder is not in remission or cannot be
kept in remission without treatment, and whether by reason of his or
her severe mental disorder, the patient represents a substantial
danger of physical harm to others. The recommitment proceeding shall
be conducted in accordance with the provisions of this section.
   (f) Any commitment under this article places an affirmative
obligation on the treatment facility to provide treatment for the
underlying causes of the person's mental disorder.
   (g) Except as provided in this subdivision, the person committed
shall be considered to be an involuntary mental health patient and he
or she shall be entitled to those rights set forth in Article 7
(commencing with Section 5325) of Chapter 2 of Part 1 of Division 5
of the Welfare and Institutions Code. Commencing January 1, 1986, the
State Department of Mental Health may adopt regulations to modify
those rights as is necessary in order to provide for the reasonable
security of the inpatient facility in which the patient is being
held. This subdivision and the regulations adopted pursuant thereto
shall become operative on January 1, 1987, except that regulations
may be adopted prior to that date.

2972.1.  (a) Outpatient status for persons committed pursuant to
Section 2972 shall be for a period not to exceed one year. Pursuant
to Section 1606, at the end of a period of outpatient status approved
by the court, the court shall, after actual notice to the
prosecutor, the defense attorney, the community program director or a
designee, the medical director of the facility that is treating the
person, and the person on outpatient status, and after a hearing in
court, either discharge the person from commitment under appropriate
provisions of law, order the person confined to a treatment facility,
or renew its approval of outpatient status.
   (b) Prior to the hearing described in subdivision (a), the
community program director or a designee shall furnish a report and
recommendation to the court, the prosecution, the defense attorney,
the medical director of the facility that is treating the person, and
the person on outpatient status. If the recommendation is that the
person continue on outpatient status or be confined to a treatment
facility, the report shall also contain a statement that conforms
with requirements of subdivision (c).
   (c) (1) Upon receipt of a report prepared pursuant to Section 1606
that recommends confinement or continued outpatient treatment, the
court shall direct prior defense counsel, or, if necessary, appoint
new defense counsel, to meet and confer with the person who is on
outpatient status and explain the recommendation contained therein.
Following this meeting, both defense counsel and the person on
outpatient status shall sign and return to the court a form which
shall read as follows:

   "Check One:

   "____ I do not believe that I need further treatment and I demand
a jury trial to decide this question.

   "___ I accept the recommendation that I continue treatment."

   (2) The signed form shall be returned to the court at least 10
days prior to the hearing described in subdivision (a). If the person
on outpatient status refuses or is unable to sign the form, his or
her counsel shall indicate, in writing, that the form and the report
prepared pursuant to Section 1606 were explained to the person and
the person refused or was unable to sign the form.
   (d) If the person on outpatient status either requests a jury
trial or fails to waive his or her right to a jury trial, a jury
trial meeting all of the requirements of Section 2972 shall be set
within 60 days of the initial hearing.
   (e) The trier of fact, or the court if trial is waived, shall
determine whether or not the requirements of subdivisions (c) and (d)
of Section 2972 have been met. The court shall then make an
appropriate disposition under subdivision (a) of this section.
   (f) The court shall notify the community program director or a
designee, the person on outpatient status, and the medical director
or person in charge of the facility providing treatment of the person
whether or not the person was found suitable for release.

2974.  Before releasing any inmate or terminating supervision of any
parolee who is a danger to self or others, or gravely disabled as a
result of mental disorder, and who does not come within the
provisions of Section 2962, the Director of Corrections may, upon
probable cause, place, or cause to be placed, the person in a state
hospital pursuant to the Lanterman-Petris-Short Act, Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code.

2976.  (a) The cost of inpatient or outpatient treatment under
Section 2962 or 2972 shall be a state expense while the person is
under the jurisdiction of the Department of Corrections or the State
Department of Mental Health.
   (b) Any person placed outside of a facility of the Department of
Corrections for the purposes of inpatient treatment under this
article shall not be deemed to be released from imprisonment or from
the custody of the Department of Corrections prior to the expiration
of the maximum term of imprisonment of the person.

2978.  (a) Any independent professionals appointed by the Board of
Prison Terms for purposes of this article shall not be state
government employees; shall have at least five years of experience in
the diagnosis and treatment of mental disorders; and shall include
psychiatrists, and licensed psychologists who have a doctoral degree
in psychology.
   (b) On July 1 of each year the Department of Corrections and the
State Department of Mental Health shall submit to the Board of Prison
Terms a list of 20 or more independent professionals on which both
departments concur. The professionals shall not be state government
employees and shall have at least five years of experience in the
diagnosis and treatment of mental disorders and shall include
psychiatrists and licensed psychologists who have a doctoral degree
in psychology. For purposes of this article, when the Board of Prison
Terms receives the list, they shall only appoint independent
professionals from the list. The list shall not be binding on the
Board of Prison Terms until they have received it, and shall not be
binding after June 30 following receipt of the list.

2980.  This article applies to persons who committed their crimes on
and after January 1, 1986.

2981.  For the purpose of proving the fact that a prisoner has
received 90 days or more of treatment within the year prior to the
prisoner's parole or release, the records or copies of records of any
state penitentiary, county jail, federal penitentiary, or state
hospital in which that person has been confined, when the records or
copies thereof have been certified by the official custodian of those
records, may be admitted as evidence.


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