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.