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.