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AB-1630 Competence to stand trial: statewide application.(2021-2022)

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Date Published: 05/20/2022 04:00 AM
AB1630:v96#DOCUMENT

Amended  IN  Assembly  May 19, 2022
Amended  IN  Assembly  March 10, 2022
Amended  IN  Assembly  February 28, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1630

Introduced by Assembly Member Akilah Weber
(Coauthor: Assembly Member Stone)

January 11, 2022

An act to amend Sections 1369 and 11105 of, and to add Section 1370.7 to, the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


AB 1630, as amended, Akilah Weber. Competence to stand trial: statewide application.
Existing law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated and by which the defendant receives treatment with the goal of returning the defendant to competency. Existing law requires a court to appoint 2 psychiatrists, licensed psychologists, or a combination thereof to examine a defendant if the defendant is not seeking a finding of mental incompetence.
This bill would require the court to appoint the one mental health professionals if the defendant objects to an evaluation of mental incompetence. professional to evaluate the defendant’s mental competence. The bill would require the court to appoint 2 mental health professionals, as specified, only if, at the time of appointment, the defendant or their counsel objects to the mental competency evaluation and requests an evaluation by 2 court-appointed experts. The bill would also require the examining psychiatrists or licensed psychologists to evaluate the defendant’s eligibility for mental health diversion.
Existing law presumes that a defendant is competent unless shown, by a preponderance of evidence, that the defendant is incompetent. Existing law also requires the counsel for the defendant to offer evidence in support of the allegation of mental incompetence and, if they decline to do so, authorizes the prosecution to do so.
This bill would delete the requirement that counsel for the defendant offer evidence in support of an allegation of mental incompetence, and would, if any report from a court-appointed psychiatrist or licensed psychologist indicates that the defendant is incompetent to stand trial, instead presume the defendant incompetent and allow the prosecution to offer evidence in support of an allegation of mental competence. The bill would allow the defense to present its case regarding the issue of the defendant’ s defendant’s present mental incompetence at the conclusion of the prosecution’s case. The bill would retain the presumption that the defendant is mentally competent if all reports from the court-appointed psychiatrists or licensed psychologists indicate that the defendant is mentally competent. competent, unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
Existing law requires the Department of Justice to maintain a database of state summary criminal history information, as defined, and to provide that information upon request and as specified. Existing law includes a finding of mental incompetence arising out of a complaint charging a specific set of sex crimes as part of the state summary criminal history information. Existing law defines “gravely disabled” to include a condition in which a person has been found mentally incompetent, as specified. Existing law allows for a conservator to be appointed for a person who is gravely disabled as a result of a mental health disorder or impairment by chronic alcoholism.
This bill would require the clerk of the court, when a person is determined to be incompetent to stand trial or when a court determines that competency has been restored, to transmit that information to the Department of Justice for inclusion in the person’s state summary criminal history information, and would make that information disclosable as part of the person’s state summary criminal history information. If a person has been deemed incompetent to stand trial in any jurisdiction and there has been no official restoration of competence, certificate of restoration that has been accepted by a court, the bill would generally establish a presumption of mental incompetence in felony cases and would require a court court, before which a defendant is appearing on a new charge to assess whether competence has been restored. or specified proceeding, to ask the defendant’s attorney about the defendant’s mental competency. The bill would, if defense counsel opines that the defendant is or may be mentally incompetent, require the court to evaluate the defendant’s mental competency, as specified, and would authorize the court to evaluate the defendant’s mental competency if defense counsel opines that the defendant is mentally competent.
This bill would, if the prosecution elects to dismiss and refile charges at the end of a commitment or upon a finding that the defendant is unlikely to be restored to competency in the foreseeable future, require the court to find the defendant is mentally incompetent. If, in the court’s opinion, the defendant appears gravely disabled, as defined, the bill would require the court to order a conservatorship investigator to initiate conservatorship proceedings for the defendant. If, however, the defendant is found not to be subject to commitment or detention, as specified, the bill would not subject the defendant to further confinement and the criminal action would be subject to dismissal. If the prosecution provides the court with substantial evidence creating doubt as to the defendant’s current mental incompetence, the bill would require the court to appoint a psychiatrist or licensed psychologist to opine whether the defendant regained competence. The bill would require the court to hold a hearing to determine if competency has been restored, as specified, if, in the medical expert’s opinion, the defendant has regained competency. If, in the medical expert’s opinion, the defendant has not regained competency and the defendant appears to the court to be gravely disabled, the bill would require the court to order a conservatorship investigator to initiate conservatorship proceedings for the defendant. If, however, the defendant is not subject to commitment or detention, as specified, the bill would not subject the defendant to further confinement and the criminal action would be subject to dismissal.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1369 of the Penal Code is amended to read:

1369.
 Except as stated in subdivision (d), a trial by court or jury of the question of mental competence shall proceed in the following order:
(a) (1) (A) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. If the defendant or the defendant’s counsel informs the court that the defendant objects to an evaluation of mentalincompetence, the
(B) The court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. thereof, only if, at the time of appointment, the defendant or defendant’s counsel informs the court that the defendant objects to an evaluation of mental incompetence and requests an evaluation by two court-appointed experts. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution.
(2) The examining psychiatrists or licensed psychologists shall evaluate the nature of the defendant’s mental disorder, if any, the defendant’s ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner as a result of a mental disorder, whether the defendant is eligible for mental health diversion pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and their recommendation as to whether a psychiatrist should examine the defendant. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of their opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail.
(3) If it is suspected the defendant has a developmental disability, the court shall appoint the director of the regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the director’s designee, to examine the defendant to determine whether they have a developmental disability. The regional center director or their designee shall determine whether the defendant has a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, and is therefore eligible for regional center services and supports. The regional center director or their designee shall provide the court with a written report informing the court of this determination.
(4) The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, they shall be provided with necessary care and treatment.
(b) (1) If any report from a court-appointed psychiatrist or licensed psychologist indicates that the defendant is incompetent to stand trial, the defendant shall be presumed incompetent. The prosecution may offer evidence in support of the allegation of mental competence.
(2) At the conclusion of the prosecution’s case, the defense may present its case regarding the issue of the defendant’s present mental incompetence.
(3) Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention.
(4) When the evidence is concluded, unless the case is submitted without final argument, the defense shall make its final argument and the prosecution shall conclude with its final argument to the court or jury.
(5) In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It When paragraph (1) applies, it shall be presumed that the defendant is mentally competent incompetent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. competent. The verdict of the jury shall be unanimous.
(c) (1) If all reports from the court-appointed psychiatrists or licensed psychologists indicate that the defendant is mentally competent, the defendant shall be presumed competent. Counsel for the defendant may offer evidence in support of the allegation of mental incompetence.
(2) If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so.
(3) At the conclusion of the defense case, unless the defense has declined to present evidence, the prosecution may present its case regarding the issue of the defendant’s present mental competence.
(4) Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention.
(5) When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury.
(6) In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. When paragraph (1) applies, it shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous.
(d) Only a court trial is required to determine competency in a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole.
(e) (1) The State Department of State Hospitals, on or before July 1, 2017, shall adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court pursuant to this section. To develop these guidelines, the State Department of State Hospitals shall convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders.
(2) When making an appointment pursuant to this section, the court shall appoint an expert who meets the guidelines established in accordance with this subdivision or an expert with equivalent experience and skills. If there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills, the court may appoint an expert who does not meet the guidelines.

SEC. 2.

 Section 1370.7 is added to the Penal Code, to read:

1370.7.
 (a) (1) The clerk of the court shall notify the Department of Justice of a finding of mental incompetence pursuant to this chapter for inclusion in the defendant’s state summary criminal history information.
(2) When a person is determined to be restored to competency, the clerk of the court shall notify the Department of Justice for inclusion of that information in the defendant’s state summary criminal history information.
(b) If a person has been deemed incompetent to stand trial in any jurisdiction and there has been no official restoration of competence, certificate of restoration issued pursuant to Section 1372 that has been accepted by a court, a court before which a defendant is appearing on a new charge or in a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole shall presume that the person is incompetent to stand trial and shall assess whether competence has been restored. This presumption does not apply in misdemeanor cases or if a person had their charges dismissed at the conclusion of a period of diversion pursuant to subdivision (e) of Section 1001.36. inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If, after meeting with the defendant, counsel informs the court that they believe the defendant is or may be mentally incompetent, the court shall proceed according to Section 1369. If counsel informs the court that they believe the defendant is mentally competent, the court may, nevertheless, order a hearing pursuant to Section 1369. This section does not apply where no certificate of restoration can be issued, including when Sections 1001.36 and 1370.01 apply.
(c) (1) (A) If the prosecution elects to dismiss and refile charges after a defendant has been returned to court at the end of commitment or upon a finding that the defendant is unlikely to be restored to mental competence in the foreseeable future, the court shall find that the defendant is mentally incompetent.
(B) If it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) or (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order a conservatorship investigator to initiate conservatorship proceedings for the defendant pursuant to the applicable provisions of the Lanterman-Petris-Short Act in Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code or pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code.
(C) If the defendant is not subject to commitment or detention pursuant to subparagraph (B), the defendant shall not be subject to further confinement pursuant to this chapter and the criminal action remains subject to dismissal pursuant to Section 1385.
(2) (A) If the prosecution provides the court with substantial evidence that the defendant’s psychiatric symptoms have changed to create doubt in the mind of the judge as to the defendant’s current mental incompetence, the court shall appoint a psychiatrist or a licensed psychologist to opine as to whether the defendant has regained mental competence.
(B) If, in the opinion of that expert, the defendant has regained mental competence, the court shall proceed as if a certificate of restoration of competence has been returned pursuant to paragraph (1) of subdivision (a) of Section 1372, except that a presumption of competency does not apply and a hearing shall be held to determine whether competency has been restored.
(C) (i) If, in the opinion of that expert, the defendant has not regained mental competence and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) or (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order a conservatorship investigator to initiate conservatorship proceedings for the defendant pursuant to the applicable provisions of the Lanterman-Petris-Short Act in Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code or pursuant to a petition filed pursuant to Section 6502 of the Welfare and Institutions Code.
(ii) If the defendant is not subject to commitment or detention pursuant to clause (i), the defendant shall not be subject to further confinement pursuant to this chapter and the criminal action remains subject to dismissal pursuant to Section 1385.

SEC. 3.

 Section 11105 of the Penal Code is amended to read:

11105.
 (a) (1) The Department of Justice shall maintain state summary criminal history information.
(2) As used in this section:
(A) “State summary criminal history information” means the master record of information compiled by the Attorney General pertaining to the identification and criminal history of a person, such as name, date of birth, physical description, fingerprints, photographs, dates of arrests, arresting agencies and booking numbers, charges, dispositions, sentencing information, and similar data about the person.
(B) “State summary criminal history information” does not refer to records and data compiled by criminal justice agencies other than the Attorney General, nor does it refer to records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal history information to the following, if needed in the course of their duties, provided that when information is furnished to assist an agency, officer, or official of state or local government, a public utility, or any other entity, in fulfilling employment, certification, or licensing duties, Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1, subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section 830.3, subdivision (a) of Section 830.31, and subdivisions (a) and (b) of Section 830.5.
(3) District attorneys of the state.
(4) Prosecuting city attorneys or city prosecutors of a city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to Section 186.22a, or drug abatement actions pursuant to Section 3479 or 3480 of the Civil Code, or Section 11571 of the Health and Safety Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a person in proceedings upon a petition for a certificate of rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a person in a criminal case or a juvenile delinquency proceeding, including all appeals and postconviction motions, or a parole, mandatory supervision pursuant to paragraph (5) of subdivision (h) of Section 1170, or postrelease community supervision revocation or revocation extension proceeding, if the information is requested in the course of representation.
(10) An agency, officer, or official of the state if the state summary criminal history information is required to implement a statute or regulation that expressly refers to specific criminal conduct applicable to the subject person of the state summary criminal history information, and contains requirements or exclusions, or both, expressly based upon that specified criminal conduct. The agency, officer, or official of the state authorized by this paragraph to receive state summary criminal history information may perform state and federal criminal history information checks as provided for in subdivision (u). The Department of Justice shall provide a state or federal response to the agency, officer, or official pursuant to subdivision (p).
(11) A city, county, city and county, or district, or an officer or official thereof, if access is needed in order to assist that agency, officer, or official in fulfilling employment, certification, or licensing duties, and if the access is specifically authorized by the city council, board of supervisors, or governing board of the city, county, or district if the state summary criminal history information is required to implement a statute, ordinance, or regulation that expressly refers to specific criminal conduct applicable to the subject person of the state summary criminal history information, and contains requirements or exclusions, or both, expressly based upon that specified criminal conduct. The city, county, city and county, district, or the officer or official thereof authorized by this paragraph may also transmit fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information under procedures established under Article 5 (commencing with Section 11120).
(13) A person or entity when access is expressly authorized by statute if the criminal history information is required to implement a statute or regulation that expressly refers to specific criminal conduct applicable to the subject person of the state summary criminal history information, and contains requirements or exclusions, or both, expressly based upon that specified criminal conduct.
(14) Health officers of a city, county, city and county, or district when in the performance of their official duties enforcing Section 120175 of the Health and Safety Code.
(15) A managing or supervising correctional officer of a county jail or other county correctional facility.
(16) A humane society, or society for the prevention of cruelty to animals, for the specific purpose of complying with Section 14502 of the Corporations Code for the appointment of humane officers.
(17) Local child support agencies established by Section 17304 of the Family Code. When a local child support agency closes a support enforcement case containing state summary criminal history information, the agency shall delete or purge from the file and destroy documents or information concerning or arising from offenses for or of which the parent has been arrested, charged, or convicted, other than for offenses related to the parent’s having failed to provide support for minor children, consistent with the requirements of Section 17531 of the Family Code.
(18) County child welfare agency personnel who have been delegated the authority of county probation officers to access state summary criminal history information pursuant to Section 272 of the Welfare and Institutions Code for the purposes specified in Section 16504.5 of the Welfare and Institutions Code. Information from state summary criminal history information provided pursuant to this subdivision shall not be used for a purpose other than those specified in this section and Section 16504.5 of the Welfare and Institutions Code. When an agency obtains records both on the basis of name checks and fingerprint checks, final placement decisions shall be based only on the records obtained pursuant to the fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes, that has entered into an agreement with the state pursuant to Section 10553.1 of the Welfare and Institutions Code. This information may be used only for the purposes specified in Section 16504.5 of the Welfare and Institutions Code and for tribal approval or tribal licensing of foster care or adoptive homes. Article 6 (commencing with Section 11140) shall apply to officers, members, and employees of a tribal court receiving state summary criminal history information pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of tribes that has entered into an agreement with the state pursuant to Section 10553.1 of the Welfare and Institutions Code and to whom the state has delegated duties under paragraph (2) of subdivision (a) of Section 272 of the Welfare and Institutions Code. The purposes for use of the information shall be for the purposes specified in Section 16504.5 of the Welfare and Institutions Code and for tribal approval or tribal licensing of foster care or adoptive homes. When an agency obtains records on the basis of name checks and fingerprint checks, final placement decisions shall be based only on the records obtained pursuant to the fingerprint check. Article 6 (commencing with Section 11140) shall apply to child welfare agency personnel receiving criminal record offender information pursuant to this section.
(21) An officer providing conservatorship investigations pursuant to Sections 5351, 5354, and 5356 of the Welfare and Institutions Code.
(22) A court investigator providing investigations or reviews in conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of the Probate Code.
(23) A person authorized to conduct a guardianship investigation pursuant to Section 1513 of the Probate Code.
(24) A humane officer pursuant to Section 14502 of the Corporations Code for the purposes of performing the officer’s duties.
(25) A public agency described in subdivision (b) of Section 15975 of the Government Code, for the purpose of oversight and enforcement policies with respect to its contracted providers.
(26) (A) A state entity, or its designee, that receives federal tax information. A state entity or its designee that is authorized by this paragraph to receive state summary criminal history information also may transmit fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation for the purpose of the state entity or its designee obtaining federal level criminal offender record information from the Department of Justice. This information shall be used only for the purposes set forth in Section 1044 of the Government Code.
(B) For purposes of this paragraph, “federal tax information,” “state entity,” and “designee” are as defined in subdivision (f) of Section 1044 of the Government Code.
(c) The Attorney General may furnish state summary criminal history information and, when specifically authorized by this subdivision, federal level criminal history information upon a showing of a compelling need to any of the following, provided that when information is furnished to assist an agency, officer, or official of state or local government, a public utility, or any other entity in fulfilling employment, certification, or licensing duties, Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor Code shall apply:
(1) A public utility, as defined in Section 216 of the Public Utilities Code, that operates a nuclear energy facility when access is needed in order to assist in employing persons to work at the facility, provided that, if the Attorney General supplies the data, the Attorney General shall furnish a copy of the data to the person to whom the data relates.
(2) A peace officer of the state other than those included in subdivision (b).
(3) An illegal dumping enforcement officer as defined in subdivision (i) of Section 830.7.
(4) A peace officer of another country.
(5) Public officers, other than peace officers, of the United States, other states, or possessions or territories of the United States, provided that access to records similar to state summary criminal history information is expressly authorized by a statute of the United States, other states, or possessions or territories of the United States if the information is needed for the performance of their official duties.
(6) A person when disclosure is requested by a probation, parole, or peace officer with the consent of the subject of the state summary criminal history information and for purposes of furthering the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories or possessions of the United States.
(8) Peace officers of the United States, other states, or territories or possessions of the United States.
(9) An individual who is the subject of the record requested if needed in conjunction with an application to enter the United States or a foreign nation.
(10) (A) (i) A public utility, as defined in Section 216 of the Public Utilities Code, or a cable corporation as defined in subparagraph (B), if receipt of state summary criminal history information is needed in order to assist in employing current or prospective employees, contract employees, or subcontract employees who, in the course of their employment, may be seeking entrance to private residences or adjacent grounds. The information provided shall be limited to the record of convictions and arrests for which the person is released on bail or on their own recognizance pending trial.
(ii) If the Attorney General supplies the data pursuant to this paragraph, the Attorney General shall furnish a copy of the data to the current or prospective employee to whom the data relates.
(iii) State summary criminal history information is confidential and the receiving public utility or cable corporation shall not disclose its contents, other than for the purpose for which it was acquired. The state summary criminal history information in the possession of the public utility or cable corporation and all copies made from it shall be destroyed not more than 30 days after employment or promotion or transfer is denied or granted, except for those cases where a current or prospective employee is out on bail or on their own recognizance pending trial, in which case the state summary criminal history information and all copies shall be destroyed not more than 30 days after the case is resolved.
(iv) A violation of this paragraph is a misdemeanor, and shall give the current or prospective employee who is injured by the violation a cause of action against the public utility or cable corporation to recover damages proximately caused by the violations. A public utility’s or cable corporation’s request for state summary criminal history information for purposes of employing current or prospective employees who may be seeking entrance to private residences or adjacent grounds in the course of their employment shall be deemed a “compelling need” as required to be shown in this subdivision.
(v) This section does not impose a duty upon public utilities or cable corporations to request state summary criminal history information on current or prospective employees.
(B) For purposes of this paragraph, “cable corporation” means a corporation or firm that transmits or provides television, computer, or telephone services by cable, digital, fiber optic, satellite, or comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information received by the Department of Justice from entities authorized pursuant to subparagraph (A) shall be forwarded to the Federal Bureau of Investigation by the Department of Justice. Federal level criminal history information received or compiled by the Department of Justice may then be disseminated to the entities referenced in subparagraph (A), as authorized by law.
(11) A campus of the California State University or the University of California, or a four-year college or university accredited by a regional accreditation organization approved by the United States Department of Education, if needed in conjunction with an application for admission by a convicted felon to a special education program for convicted felons, including, but not limited to, university alternatives and halfway houses. Only conviction information shall be furnished. The college or university may require the convicted felon to be fingerprinted, and any inquiry to the department under this section shall include the convicted felon’s fingerprints and any other information specified by the department.
(12) A foreign government, if requested by the individual who is the subject of the record requested, if needed in conjunction with the individual’s application to adopt a minor child who is a citizen of that foreign nation. Requests for information pursuant to this paragraph shall be in accordance with the process described in Sections 11122 to 11124, inclusive. The response shall be provided to the foreign government or its designee and to the individual who requested the information.
(d) When an authorized request for state summary criminal history information pertains to a person whose fingerprints are on file with the Department of Justice and the department has no criminal history of that person, and the information is to be used for employment, licensing, or certification purposes, the fingerprint card accompanying the request for information, if any, may be stamped “no criminal record” and returned to the person or entity making the request.
(e) When state summary criminal history information is furnished as the result of an application and is to be used for employment, licensing, or certification purposes, the Department of Justice may charge the person or entity making the request a fee that it determines to be sufficient to reimburse the department for the cost of furnishing the information. In addition, the Department of Justice may add a surcharge to the fee to fund maintenance and improvements to the systems from which the information is obtained. Notwithstanding any other law, a person or entity required to pay a fee to the department for information received under this section may charge the applicant a fee sufficient to reimburse the person or entity for this expense. All moneys received by the department pursuant to this section, Sections 11105.3 and 26190, and former Section 13588 of the Education Code shall be deposited in a special account in the General Fund to be available for expenditure by the department, upon appropriation by the Legislature, to offset costs incurred pursuant to those sections and for maintenance and improvements to the systems from which the information is obtained.
(f) When there is a conflict, the processing of criminal fingerprints and fingerprints of applicants for security guard or alarm agent registrations or firearms qualification permits submitted pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the Business and Professions Code shall take priority over the processing of other applicant fingerprints.
(g) It is not a violation of this section to disseminate statistical or research information obtained from a record, provided that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information obtained from a record in (1) a transcript or record of a judicial or administrative proceeding or (2) any other public record if the inclusion of the information in the public record is authorized by a court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or a state or local law enforcement agency may require the submission of fingerprints for the purpose of conducting state summary criminal history information checks that are authorized by law.
(j) The state summary criminal history information shall include any finding of mental incompetence pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 arising out of a complaint charging a felony offense specified in Section 290 or reported pursuant to Section 1370.7.
(k) (1) This subdivision shall apply when state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency or organization and the information is to be used for peace officer employment or certification purposes. As used in this subdivision, a peace officer is defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.
(2) Notwithstanding any other law, whenever state summary criminal history information is initially furnished pursuant to paragraph (1), the Department of Justice shall disseminate the following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is presently awaiting trial, whether the applicant is incarcerated or has been released on bail or on their own recognizance pending trial.
(C) Every arrest or detention, except for an arrest or detention resulting in an exoneration, provided, however, that where the records of the Department of Justice do not contain a disposition for the arrest, the Department of Justice first makes a genuine effort to determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace officer or nonsworn law enforcement agency employee preemployment criminal offender record information search requests.
(F) Sex offender registration status of the applicant.
(G) Sentencing information, if present in the department’s records at the time of the response.
(l) (1) This subdivision shall apply when state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by a criminal justice agency or organization as defined in Section 13101, and the information is to be used for criminal justice employment, licensing, or certification purposes.
(2) Notwithstanding any other law, when state summary criminal history information is initially furnished pursuant to paragraph (1), the Department of Justice shall disseminate the following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is presently awaiting trial, whether the applicant is incarcerated or has been released on bail or on their own recognizance pending trial.
(C) Every arrest for an offense for which the records of the Department of Justice do not contain a disposition or that did not result in a conviction, provided that the Department of Justice first makes a genuine effort to determine the disposition of the arrest. However, information concerning an arrest shall not be disclosed if the records of the Department of Justice indicate, or if the genuine effort reveals, that the subject was exonerated, successfully completed a diversion or deferred entry of judgment program, the arrest was deemed a detention, or the subject was granted relief pursuant to Section 851.91.
(D) Every date and agency name associated with all retained peace officer or nonsworn law enforcement agency employee preemployment criminal offender record information search requests.
(E) Sex offender registration status of the applicant.
(F) Sentencing information, if present in the department’s records at the time of the response.
(m) (1) This subdivision shall apply when state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency or organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871 of the Health and Safety Code, or a statute that incorporates the criteria of any of those sections or this subdivision by reference, and the information is to be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other law, when state summary criminal history information is initially furnished pursuant to paragraph (1), the Department of Justice shall disseminate the following information:
(A) Every conviction of an offense rendered against the applicant, except a conviction for which relief has been granted pursuant to Section 1203.49.
(B) Every arrest for an offense for which the applicant is presently awaiting trial, whether the applicant is incarcerated or has been released on bail or on their own recognizance pending trial.
(C) Every arrest for an offense for which the State Department of Social Services is required by paragraph (1) of subdivision (a) of Section 1522 of the Health and Safety Code to determine if an applicant has been arrested. However, if the records of the Department of Justice do not contain a disposition for an arrest, the Department of Justice shall first make a genuine effort to determine the disposition of the arrest.
(D) Sex offender registration status of the applicant.
(E) Sentencing information, if present in the department’s records at the time of the response.
(3) Notwithstanding the requirements of the sections referenced in paragraph (1) of this subdivision, the Department of Justice shall not disseminate information about an arrest subsequently deemed a detention or an arrest that resulted in the successful completion of a diversion program, exoneration, or a grant of relief pursuant to Section 851.91.
(n) (1) This subdivision shall apply when state or federal summary criminal history information, to be used for employment, licensing, or certification purposes, is furnished by the Department of Justice as the result of an application by an authorized agency, organization, or individual pursuant to any of the following:
(A) Paragraph (10) of subdivision (c), when the information is to be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) A statute that incorporates the criteria of any of the statutory provisions listed in subparagraph (A), (B), or (C), or of this subdivision, by reference.
(2) With the exception of applications submitted by transportation companies authorized pursuant to Section 11105.3, and notwithstanding any other law, when state summary criminal history information is initially furnished pursuant to paragraph (1), the Department of Justice shall disseminate the following information:
(A) Every conviction, except a conviction for which relief has been granted pursuant to Section 1203.49, rendered against the applicant for a violation or attempted violation of an offense specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code. However, with the exception of those offenses for which registration is required pursuant to Section 290, the Department of Justice shall not disseminate information pursuant to this subdivision unless the conviction occurred within 10 years of the date of the agency’s request for information or the conviction is over 10 years old but the subject of the request was incarcerated within 10 years of the agency’s request for information.
(B) Every arrest for a violation or attempted violation of an offense specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code for which the applicant is presently awaiting trial, whether the applicant is incarcerated or has been released on bail or on their own recognizance pending trial.
(C) Sex offender registration status of the applicant.
(D) Sentencing information, if present in the department’s records at the time of the response.
(o) (1) This subdivision shall apply when state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency or organization pursuant to Section 379 or 1300 of the Financial Code, or a statute that incorporates the criteria of either of those sections or this subdivision by reference, and the information is to be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other law, when state summary criminal history information is initially furnished pursuant to paragraph (1), the Department of Justice shall disseminate the following information:
(A) Every conviction rendered against the applicant for a violation or attempted violation of an offense specified in Section 1300 of the Financial Code, except a conviction for which relief has been granted pursuant to Section 1203.49.
(B) Every arrest for a violation or attempted violation of an offense specified in Section 1300 of the Financial Code for which the applicant is presently awaiting trial, whether the applicant is incarcerated or has been released on bail or on their own recognizance pending trial.
(C) Sentencing information, if present in the department’s records at the time of the response.
(p) (1) This subdivision shall apply when state or federal criminal history information is furnished by the Department of Justice as the result of an application by an agency, organization, or individual not defined in subdivision (k), (l), (m), (n), or (o), or by a transportation company authorized pursuant to Section 11105.3, or a statute that incorporates the criteria of that section or this subdivision by reference, and the information is to be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other law, when state summary criminal history information is initially furnished pursuant to paragraph (1), the Department of Justice shall disseminate the following information:
(A) Every conviction rendered against the applicant, except a conviction for which relief has been granted pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.425, or 1203.49. The Commission on Teacher Credentialing shall receive every conviction rendered against an applicant, retroactive to January 1, 2020, regardless of relief granted pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, 1203.425, or 1203.49.
(B) Every arrest for an offense for which the applicant is presently awaiting trial, whether the applicant is incarcerated or has been released on bail or on their own recognizance pending trial.
(C) Sex offender registration status of the applicant.
(D) Sentencing information, if present in the department’s records at the time of the response.
(q) All agencies, organizations, or individuals defined in subdivisions (k), (l), (m), (n), (o), and (p) may contract with the Department of Justice for subsequent notification pursuant to Section 11105.2. This subdivision shall not supersede sections that mandate an agency, organization, or individual to contract with the Department of Justice for subsequent notification pursuant to Section 11105.2.
(r) This section does not require the Department of Justice to cease compliance with any other statutory notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of Federal Regulations are to be followed in processing federal criminal history information.
(t) When state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency, organization, or individual defined in subdivisions (k) to (p), inclusive, and the information is to be used for employment, licensing, or certification purposes, the authorized agency, organization, or individual shall expeditiously furnish a copy of the information to the person to whom the information relates if the information is a basis for an adverse employment, licensing, or certification decision. When furnished other than in person, the copy shall be delivered to the last contact information provided by the applicant.
(u) (1) If a fingerprint-based criminal history information check is required pursuant to any statute, that check shall be requested from the Department of Justice and shall be applicable to the person identified in the referencing statute. The agency or entity identified in the statute shall submit to the Department of Justice fingerprint images and related information required by the Department of Justice of the types of applicants identified in the referencing statute, for the purpose of obtaining information as to the existence and content of a record of state or federal convictions and state or federal arrests and also information as to the existence and content of a record of the state or federal arrests for which the Department of Justice establishes that the person is free on bail or on their own recognizance pending trial or appeal.
(2) If requested, the Department of Justice shall transmit fingerprint images and related information received pursuant to this section to the Federal Bureau of Investigation for the purpose of obtaining a federal criminal history information check. The Department of Justice shall review the information returned from the Federal Bureau of Investigation, and compile and disseminate a response or a fitness determination, as appropriate, to the agency or entity identified in the referencing statute.
(3) The Department of Justice shall provide a state- or federal-level response or a fitness determination, as appropriate, to the agency or entity identified in the referencing statute, pursuant to the identified subdivision.
(4) The agency or entity identified in the referencing statute shall request from the Department of Justice subsequent notification service, as provided pursuant to Section 11105.2, for persons described in the referencing statute.
(5) The Department of Justice shall charge a fee sufficient to cover the reasonable cost of processing the request described in this subdivision.