Competency to Stand Trial in California Criminal Law California Penal Code 1368 PC

The United States Constitution guarantees a fair trial to everyone charged with a crime. 1

But sometimes a criminal defendant is not in any mental condition to participate meaningfully in his or her own trial. S/he may suffer from a chronic mental illness or developmental disability. Or maybe the trauma of being accused of a crime causes him or her to develop symptoms of mental illness...or makes an existing pattern of psychological problems much worse.

Fortunately, California criminal law addresses the needs of these defendants with the concept of "competency to stand trial." Basically, the principle of competency to stand trial in California means that no one can be forced to stand trial (or be convicted of a crime) while s/he is not able to understand what is going on in court, or to rationally participate in his or her own defense. 2

The tricky part for a defendant who fits this description is convincing a court that they really aren't competent to stand trial. Prosecutors want to get a conviction. Therefore they will probably try to convince the court that an incompetent defendant actually is competent and therefore can be convicted.

In this article, our California criminal defense attorneys 3 explain competency to stand trial in California by addressing the following:

1. Why do we have the concept of competency to stand trial in California?
2. What does it mean to be incompetent to stand trial under California law?

2.1. Definition of mental incompetence

2.2. Distinct from insanity defense

3. Procedure for determining California competency to stand trial - Penal Code 1368 PC

3.1. Whether a competency hearing is required

3.2. Substantial evidence of mental incompetence

3.3. Competency hearing

3.4. If the defendant is found to be competent

3.5. If the defendant is found to be incompetent

4. Appealing a competency decision

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

1. Why do we have the concept of competency to stand trial in California?

Simply put, California law has the concept of competency to stand trial because the United States Constitution requires it.

The Sixth Amendment to the U.S. Constitution, which is part of the Bill of Rights, provides all criminal defendants with the right to a fair trial. 4 A fair trial includes the chance to "adequately defend" oneself. 5 Someone who is experiencing symptoms of a mental disorder or who is mentally disabled may not be able to adequately defend himself. 6

For this reason, someone who is "mentally incompetent" at the time of their criminal trial may not be convicted of a crime in California. 7

2. What does it mean to be incompetent to stand trial under California law?

2.1. Definition of mental incompetence

A defendant is considered mentally incompetent, and thus unable to stand trial, if either of the following is true:

  1. S/he is unable to understand the nature of the criminal proceedings (i.e., what is going on in the trial and why), OR
  2. S/he is unable to assist his or her lawyer in a rational manner. 8

What does this mean in practice? A defendant has to have a "rational as well as factual understanding of the proceedings against him." 9 So, for example:

Example: Lewis suffers from a severe learning disability. He is charged with arson (California Penal Code 451). When he is asked why he is going to trial, he says that it is because the police think he committed arson. But when asked what arson is, he cannot explain it. This may show that Lewis doesn't have a rational understanding of the Penal Code 451 arson proceedings against him.

A defendant may also be considered mentally incompetent if s/he simply cannot assist his or her attorney in building the case for the defense. 10 For example:

Example: Lisa, who is accused of assault (California Penal Code 240 PC), suffers from paranoid delusions. She is convinced that her lawyer is out to get her. Whenever her lawyer asks her a question, Lisa gives a false reply because she thinks she can't trust him. She is probably incapable of assisting rationally with her defense in the Penal Code 240 assault case.

A defendant may be incompetent to stand trial because of mental illness OR because of a developmental disability. 11

A developmental disability is a substantial handicap that originated before the defendant turned eighteen (18) and that can be expected to continue indefinitely. It can include conditions like:

  • mental retardation,
  • cerebral palsy,
  • epilepsy,
  • autism, and
  • other conditions that are closely related to mental retardation. 12

2.2. Distinct from insanity defense

It is important to distinguish the concept of being incompetent to stand trial from the well-known California insanity defense. There are several very important differences between the two.

First of all, the insanity defense is a complete legal defense. 13 A successful insanity defense means that the defendant can never be found guilty of or punished for the crime (though s/he can be committed to a state mental hospital). 14

But if a defendant is incompetent to stand trial, that doesn't necessarily mean that s/he can never be found guilty. As we will explain in Section 3 of this article, a defendant who is not competent to stand trial will receive mental health treatment, with the goal that s/he eventually will be competent again. If that happens, then the trial begins again, and s/he can still be convicted. 15

Second, the insanity defense relates to whether or not the defendant was insane at the time s/he committed the alleged crime. 16 But competency to stand trial looks at the defendant's state of mind at the time when s/he is being tried for a crime.  17

This is important because the very experience of being accused of a crime can take a huge toll on people...both those who have a history of mental illness, and those who don't. The stress and strain of this experience means that some defendants who were not insane before they were charged...and thus would not be able to use the insanity defense...may still end up experiencing mental problems that render them incompetent to stand trial.

Finally, the actual tests for insanity and incompetence to stand trial in California are completely different. As we explained in Section 2.1, a defendant is incompetent to stand trial if s/he either cannot understand the criminal proceedings or cannot rationally assist his or her lawyer. 18

But for the insanity defense, California courts rely on something called the "M'Naghton test." This test asks two questions:

  1. Did the defendant have the mental capacity to know and understand what they were doing when they committed the crime?
  2. Did the defendant know and understand that it was wrong to commit the crime? 19

Here are some examples that will show the difference between the insanity defense and incompetence to stand trial:

Example: Harry suffers from bipolar disorder. He sometimes experiences manic episodes when he has delusions of grandeur and is unable to control his behavior. During one of these episodes, he becomes convinced that he is king of the state of California and has rights to everyone else's property. He steals a car and takes it on a long joy ride.

Harry is charged under the California Grand Theft
Automobile Law
. Because he did not have the mental capacity to understand that it was wrong for him to commit the crime, he may be able to successfully assert the insanity defense.


Example: Kate also suffers from bipolar disorder. However, she controls her symptoms with medication and regular psychotherapy sessions. But then she is arrested for insider trading under California securities fraud laws.

Kate spends all her money to post bail and is no longer able to afford her medication and therapy. This, plus the stress of the criminal charges, causes her to experience intense mood swings. By the time her criminal trial begins, she is having regular manic episodes during which she cannot hold a conversation with her lawyer.

Kate will not be able to use the insanity defense, because there is no evidence that she was insane when she committed the alleged crime. But she may be able to have her criminal proceedings suspended because she is not competent to stand trial.
3. Procedure for determining California competency to stand trial - Penal Code 1368 PC

How does a judge or jury figure out whether a defendant is competent to stand trial? California Penal Code 1368 PC and related sections of the Penal Code create a process for doing this through hearings in court. These are basically mini-trials on the question of whether the defendant is competent to stand trial.

3.1. Whether a competency hearing is required

The question of whether to hold a competency hearing in the first place is a controversial issue in many criminal cases.

In some cases, the judge may be the first person to wonder whether a defendant is competent to stand trial. If this occurs, the judge must ask the defense attorney whether s/he believes the defendant is competent. 20

If the defense attorney tells the judge that s/he thinks the defendant might be incompetent, the judge is then required to suspend the criminal proceedings and schedule a separate hearing to determine the defendant's competency. 21 Even if the defense lawyer tells the judge that s/he thinks the defendant is competent, the judge may still order a competency hearing if s/he continues to have doubts.  22

But according to Los Angeles and San Bernardino County criminal defense attorney Neil Shouse 23:

"Realistically, it's far more likely to be the defense lawyer, and not the judge, who first raises doubts about the defendant's competency to stand trial. The defense lawyer will have spent more time with the defendant and will know much more about him or her. Also, the defense lawyer has a real stake in making sure that their client's Sixth Amendment rights are not violated by a trial that's conducted while the client is incompetent."

The defendant's counsel may come forward and request that a hearing be held on the defendant's mental competence. If s/he can present "substantial evidence" that the defendant is currently incompetent, then the judge is required to temporarily stop the criminal trial and hold a hearing on the competency issue.  24

3.2. Substantial evidence of mental incompetence

But what is "substantial evidence" that the defendant is incompetent? Courts define it as enough evidence to raise a reasonable doubt in the judge's mind 25...but that's still a pretty subjective standard. Here are some examples drawn from actual cases that show when courts are likely to believe that a hearing is required:

Example: During his trial for California murder and other crimes, Theo repeatedly curses loudly and disrupts the courtroom proceedings. He has to be removed several times.

But the court found that this, by itself, is NOT substantial evidence that he isn't competent to stand trial. Instead, it just shows that he's unwilling, not unable, to cooperate in his defense.  26


Example: William tells his lawyer that he wants to plead guilty to murder charges and receive the death penalty. He also has been hoarding medication for a suicide attempt and has a history of psychiatric illness. But the court found that none of this behavior reflected negatively on his ability to understand criminal proceedings or participate in his own defense. So a hearing was NOT required.  27


Example: James is on trial for rape of his wife. Before the trial, a psychiatrist examines him and writes a report suggesting that he may need psychiatric treatment. On the second day of trial, he shoots himself in an unsuccessful suicide attempt and has to miss part of the rest of the trial. His wife also testifies at trial that he is mentally unstable. Taken together, all of these facts are substantial evidence that James is not competent to participate in his own trial. A competency hearing WAS required.  28


Example: John is examined by two psychiatrists before his criminal trial. He tells them that he can see things that other people can't, and that an invisible man follows him everywhere. The doctors write reports concluding that John is a paranoid schizophrenic and needs to be hospitalized because he is a danger to himself and others.These reports WERE substantial evidence that John was not competent to stand trial.  29

3.3. Competency hearing

If the judge suspects the defendant is incompetent, or if the defendant's attorney presents substantial evidence that s/he is incompetent, the next step is to hold a competency hearing to determine whether s/he is actually incompetent.

This hearing is a civil proceeding, not a criminal one.  30 (This means that the rules of procedure governing the hearing are somewhat different from those in criminal courts.  31)

The competency hearing may be before either a judge or a jury.  32 If either the defendant or the prosecution specifically requests a jury hearing, they will get one.  33

The court must appoint at least one psychiatrist or licensed psychologist to examine the defendant for the purposes of determining whether s/he is competent to stand trial. Also, if the judge thinks defendant might have a developmental or learning disability, an official from the regional center for the developmentally disabled also needs to evaluate him or her.  34 Even if the defendant does not want to undergo an evaluation by these experts, s/he may be forced to do so.  35

The presumption in the hearing is that the defendant is competent to stand trial. So the burden will be on the defendant and the defendant's attorney to show that s/he is not competent. This must be proved by a preponderance of the evidence (which means that the jury has to feel that it's more likely than not that the defendant is incompetent).  36

If the hearing is tried by jury, the jury must unanimously agree that the defendant is or is not competent to stand trial.  37

3.4. If the defendant is found to be competent

If the jury at the hearing decides that the defendant is competent to stand trial, then the criminal trial will begin again where it left off.  38

That is not necessarily the end of the story, though. If there is a substantial change of circumstances, or if new evidence emerges that casts doubt on the result of the first hearing, a second competency hearing may be required.  39

One example of when a second competency hearing might be required is if a psychiatrist who examined the defendant at the first hearing and concluded that he was competent changes his mind...and now thinks that he is not competent.  40

3.5. If the defendant is found to be incompetent

If the jury at the competency hearing concludes that the defendant is incompetent, that is not the end of the story either...the defendant can still be tried and convicted of the crime later. But after a finding of incompetence, the criminal trial must remain temporarily suspended until the defendant regains competence.  41

Required psychiatric treatment; commitment to facility

After a finding of incompetence to stand trial, the defendant will be required to undergo psychiatric treatment. S/he may be committed to a state mental hospital, a center for the care and treatment of people with developmental disabilities (if appropriate), or another state-approved treatment facility. Alternatively, the court may only require him or her to receive treatment on an outpatient basis.  42

Where the defendant is sent for treatment will depend in part on the nature of the criminal charges s/he was facing. If s/he was on trial for a felony
California sex crime that would require sex offender registration, s/he is more likely to be sent to a state hospital or another secure facility.  43

S/he is also less likely to be assigned to outpatient treatment if s/he was charged with one of the crimes listed as violent felonies under violent felonies under California's Three Strikes Law.44

If a defendant is committed to a treatment facility, s/he is not free to leave at will. Escaping from the treatment facility is a crime punishable by up to a year in prison.  45

When the defendant regains competence

The facility treating a defendant who has been committed for psychiatric treatment has to provide the court regular updates on the defendant's progress toward recovery. The first such report is due ninety (90) days after treatment begins. After that, reports are due every six (6) months.  46

Also, after a defendant accused of a felony has been in treatment for eighteen (18) months, a new competency hearing must be held.  47

If a report or a second hearing shows that the defendant has regained competency, then the criminal trial will resume.  48 The defendant can challenge this finding of competency, and if s/he does so, then a new competency hearing needs to be held.  49

If the defendant is then found guilty, s/he will receive credit against any prison sentence for the time s/he spent in a state hospital or treatment facility or receiving outpatient treatment.  50

This is why it is often very worthwhile for a mentally ill or disabled defendant to request a competency hearing and try to show that s/he is not competent to stand trial. Even though s/he will still face criminal penalties if his or her competency is restored, s/he will be looking at less time in prison...and will have received treatment for the underlying mental condition that could be very valuable.

If the defendant does not regain competence

In some cases, the report from the treating facility will state that they do not expect the defendant to ever regain competence. Or in some cases competence will not be restored in a reasonable period of time-defined for these purposes as three (3) years if the defendant is charged with a felony, one (1) year if s/he is charged with a misdemeanor, or the maximum prison sentence for the most serious crime charged (if it's shorter than those periods).  51

If this happens, then the defendant goes back to court for what are called conservatorship proceedings.  52 This means that the judge will appoint a person or organization to care for and make decisions for the defendant, who is assumed to be unable to look after his/her own interests.

4. Appealing a competency decision

Let's say a judge wrongly decides not to hold a competency hearing, or the hearing wrongly concludes that the defendant is competent to stand trial. S/he can
appeal the finding that s/he was competent to stand trial...but only after s/he has been found guilty, as part of a general appeal of his or her conviction.  53

Judges frequently fail to schedule hearings even when there is substantial evidence that a defendant may not be competent to stand trial. If this happened to you or someone you know, a California criminal appeals attorney can help you fight the conviction on this and any other basis that might be relevant.

Call us for help...
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If you or loved one is charged with Penal Code 1368 PC and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1 U.S. Const., am. VI. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.")

2 Penal Code 1367(a) PC. ("A person cannot be tried or adjudged to punishment while such person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.")

3 Our California criminal defense and asset forfeiture attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

4 U.S. Const., am. VI. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.")

5 People v. Skeirik, (1991) 229 Cal.App.3d 444, 455. ("The underlying theory is that an incompetent person is incapable of adequately defending himself against the charge.")

6 Same.

7 Penal Code 1367(a) PC. ("A person cannot be tried or adjudged to punishment while such person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.")

8 Same.

9 People v. Ramos, (2004) 34 Cal.4th 494, 507.

10 People v. Crosier, (1974) 41 Cal.App.3d 712, 716. ("In determining whether a person is 'presently sane' within the meaning of section 1368 Penal Code the standard to be applied is: is the defendant capable of understanding the nature and purpose of the proceedings taken against him; does he comprehend his own status and condition in reference to such proceedings; is he capable to assist his attorney in conducting his defense, or able to conduct his own defense in a rational manner?")

11 Penal Code 1367(a) PC. ("A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.")

12 Penal Code 1370.1(a)(1)(H). ("(a)(1)(H) As used in this section, "developmental disability" means a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual, and shall not include other handicapping conditions that are solely physical in nature. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include handicapping conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but shall not include other handicapping conditions that are solely physical in nature.")

13 People v. Dobson, (2008) 161 Cal.App.4th 1422, 1432. ("A successful insanity plea relieves the defendant of all criminal responsibility.")

14 Same.

15 Penal Code 1370 PC. ("(a)(1)(A) If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged shall proceed, and judgment may be pronounced.")

16 People v. Crosier, (1974) 41 Cal.App.3d 712, 716. ("To be "sane" and thus responsible to the law for the act committed, the defendant must be able to both know and understand the nature and quality of his act and to distinguish between right and wrong at the time of the commission of the offense.") (emphasis added)

17 Penal Code 1367(a) PC. ("A person cannot be tried or adjudged to punishment while such person is mentally incompetent.") (emphasis added)

18 Penal Code 1367(a) PC. ("A person cannot be tried or adjudged to punishment while such person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.")

19 People v. Crosier, (1974) 41 Cal.App.3d 712, 716. ("The historical 'M'Naughton insanity,' as liberalized and used in California upon the plea of not guilty by reason of insanity, is defined as follows: first, did the defendant have sufficient mental capacity to know and understand what he was doing, and, second, did he know and understand that it was wrong and a violation of the rights of another? To be 'sane' and thus responsible to the law for the act committed, the defendant must be able to both know and understand the nature and quality of his act and to distinguish between right and wrong at the time of the commission of the offense.")

20 Penal Code 1368(a) PC. ("(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.")

21 Penal Code 1368(b)-(c) PC. ("(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court. (c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.")

22 Same.

23 Our San Bernardino and Los Angeles criminal defense lawyers have successfully defended numerous clients charged with California sex crimes, including loitering for prostitution under Penal Code 653.22 PC.  We represents client at a number of locations of the California courts, including the Rancho Cucamonga courthouse, the Fontana courthouse, the Chino courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Alhambra courthouse, and the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles.

24 People v. Pennington, (1967) 66 Cal.2d 508, 519. ("[W]hen the defendant has come forward with substantial evidence of present mental incompetence, he is entitled to a section 1368 hearing as a matter of right . . .")

25 People v. Howard, (1992) 1 Cal.4th 1132, 1163. ("Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue.")

26 People v. Medina, (1995) 11 Cal.4th 694, 735. ("[D]efendant was removed from the courtroom during much of the voir dire and trial proceedings because of his continued cursing and other disruptive conduct. Defendant suggests that such conduct should have raised a 'doubt' sufficient to justify a renewed competency hearing. We disagree. We have recently confirmed that more is required to raise a doubt of competence than the defendant's mere bizarre actions or statements, with little reference to his ability to assist in his own defense. Defendant's cursing and disruptive actions displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so, or reflect a substantial change of circumstances or new evidence casting serious doubt on the validity of the prior finding of the defendant's competence.") (citations omitted)

27 People v. Ramos, (2004) 34 Cal. 4th 494, 509.

28 Drope v. Missouri, (1975) 420 U.S. 162, 178-80.

29 People v. Humphrey, (1975) 45 Cal.App.3d 32, 34-35, 38.

30 Baqleh v. Superior Court, (2002) 100 Cal.App.4th 478, 490. ("[Petitioner] ignores the fact that a competency trial under section 1369 is not a criminal proceeding.  Although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings.")

31 Same, at 491. ("The civil nature of a trial on the issue of competency vests the trial court with authority to utilize appropriate rules set forth in the Code of Civil Procedure, even though the underlying issue relates to the commission of a criminal offense.")

32 Penal Code 1369(a) PC. ("A trial by court or jury of the question of mental competence shall proceed in the following order: . . . .")

33 People v. Superior Court (McPeters), (1985) 169 Cal.App.3d 796, 798. ("We hold that such a statute should be construed to grant a jury trial right to all proper parties to the special proceeding.")

34 Penal Code 1369(a) PC. ("(a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution. 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 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 his or her 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 his or her 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. If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the designee of the director, to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital.")

35 Tarantino v. Superior Court, (1975) 48 Cal.App.3d 465, 469. ("As to the right against self-incrimination, we find no violation in compelling a defendant to submit to examination by court-appointed psychiatrists under section 1367 et seq., at least under a judicially declared immunity reasonably to be implied from the code provisions. The purpose of such inquiry is not to determine guilt or innocence. It has no relation to the plea of not guilty by reason of insanity. Rather, the sole purpose of these statutes is the humanitarian desire to assure that one who is mentally unable to defend himself not be tried upon a criminal charge. This purpose is entirely unrelated to any element of guilt, and there is no indication of any legislative intent that any result of this inquiry into a wholly collateral matter be used in determining the issue of guilt.")

36 Penal Code 1369(f). ("(f) 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 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.")

See also 13 California Jury Instructions, Criminal.("CALJIC") 2.50.2 -- Definition of Preponderance of the Evidence. ("'Preponderance of the evidence' means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.")

37 Penal Code 1369(f). ("(f) 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 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.")

38 Penal Code 1370(a)(1)(A) PC. ("(a)(1)(A) If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged shall proceed, and judgment may be pronounced.")

39 People v. Jones, (1991) 53 Cal.3d 1115, 1153. ("When a competency hearing has already been held and the defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that finding.") (internal quotation marks omitted)

40 People v. Melissakis, (1976) 56 Cal.App.3d 52, 59. ("Then at the hearing on the issue of appellant's sanity under the M'Naughton test, Doctors Richard Burdick and Francis Matychowiak, testifying on behalf of the People, recanted their earlier beliefs that appellant had no discernable psychiatric problem and said that he honestly believed in the existence of the conspiracy and that he was suffering from a severe mental illness of the schizophrenia paranoid type.")

41Penal Code 1370(a)(1)(B). ("(B) If the defendant is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent.")

42Penal Code 1370(a)(1)(B)(i) PC; Penal Code 1370.1(a)(1)(B)(i).

43 Penal Code 1370(a)(1)(B)(ii)-(iv). ("(ii) However, if the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290, the prosecutor shall determine whether the defendant previously has been found mentally incompetent to stand trial pursuant to this chapter on a charge of a Section 290 offense, or whether the defendant is currently the subject of a pending Section 1368 proceeding arising out of a charge of a Section 290 offense. If either determination is made, the prosecutor shall so notify the court and defendant in writing. After this notification, and opportunity for hearing, the court shall order that the defendant be delivered by the sheriff to a state hospital or other secure treatment facility for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others. (iii) If the action against the defendant who has been found mentally incompetent is on a complaint charging a felony offense specified in Section 290 and the defendant has been denied bail pursuant to subdivision (b) of Section 12 of Article I of the California Constitution because the court has found, based upon clear and convincing evidence, a substantial likelihood that the person's release would result in great bodily harm to others, the court shall order that the defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered unless the court makes specific findings on the record that an alternative placement would provide more appropriate treatment for the defendant and would not pose a danger to the health and safety of others. (iv) The clerk of the court shall notify the Department of Justice in writing of any finding of mental incompetence with respect to a defendant who is subject to clause (ii) or (iii) for inclusion in his or her state summary criminal history information.")

44 Penal Code 1370 (a)(1)(F). ("(F) A defendant charged with a violent felony may be placed on outpatient status, as specified in Section 1600, only if the court finds that the placement will not pose a danger to the health or safety of others. If the court places a defendant charged with a violent felony on outpatient status, as specified in Section 1600, the court must serve copies of the placement order on defense counsel, the sheriff in the county where the defendant will be placed and the district attorney for the county in which the violent felony charges are pending against the defendant.")

45 Penal Code 1370.5 PC. ("(a) Every person committed to a state hospital or other public or private mental health facility pursuant to the provisions of Section 1370, 1370.01, or 1370.1, who escapes from or who escapes while being conveyed to or from a state hospital or facility, is punishable by imprisonment in the county jail not to exceed one year or in the state prison for a determinate term of one year and one day. The term of imprisonment imposed pursuant to this section shall be served consecutively to any other sentence or commitment.")

46 Penal Code 1370(b). ("(b)(1) Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendant's progress toward recovery of mental competence. Where the defendant is on outpatient status, the outpatient treatment staff shall make a written report to the community program director concerning the defendant's progress toward recovery of mental competence. Within 90 days of placement on outpatient status, the community program director shall report to the court on this matter. If the defendant has not recovered mental competence, but the report discloses a substantial likelihood that the defendant will regain mental competence in the foreseeable future, the defendant shall remain in the state hospital or other treatment facility or on outpatient status. Thereafter, at six-month intervals or until the defendant becomes mentally competent, where the defendant is confined in a treatment facility, the medical director of the hospital or person in charge of the facility shall report in writing to the court and the community program director or a designee regarding the defendant's progress toward recovery of mental competence. Where the defendant is on outpatient status, after the initial 90-day report, the outpatient treatment staff shall report to the community program director on the defendant's progress toward recovery, and the community program director shall report to the court on this matter at six-month intervals. A copy of these reports shall be provided to the prosecutor and defense counsel by the court. If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court for proceedings pursuant to paragraph (2) of subdivision (c). The court shall transmit a copy of its order to the community program director or a designee. (2) Any defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.")

47 Penal Code 1370(a)(4) PC. ("(4) Any defendant who has been committed or has been on outpatient status for 18 months and is still hospitalized or on outpatient status shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369. The court shall transmit a copy of its order to the community program director or a designee.")

48 Penal Code 1372. ("(a)(1) If the medical director of the state hospital or other facility to which the defendant is committed, or the community program director, county mental health director, or regional center director providing outpatient services, determines that the defendant has regained mental competence, the director shall immediately certify that fact to the court by filing a certificate of restoration with the court by certified mail, return receipt requested. For purposes of this section, the date of filing shall be the date on the return receipt. . . . (a)(3)(C) In all cases, the patient shall be returned to the committing court no later than 10 days following the filing of a certificate of restoration.")

49People v. Mixon, (1990) 225 Cal.App.3d 1471, 1480. ("But, although section 1372 does not explicitly so provide, it has been construed to comply with the mandate of In re Davis (1973) 8 Cal.3d 798, 806, 106 Cal.Rptr. 178, 505 P.2d 1018: 'Should the person committed desire to challenge the report's conclusions, reasonable opportunity should be provided him to do so.' As People v. Murrell (1987) 196 Cal.App.3d 822, 826, 242 Cal.Rptr. 175 notes: 'Although section 1372 does not directly provide for a hearing where the defendant may challenge the medical director's certification of competence, the numerous references in that statute to a hearing indicate a legislative intention that such a hearing be afforded.'")

50 Penal Code 1375.5 PC. ("Time spent by a defendant in a hospital or other facility as a result of a commitment therein as a mentally incompetent pursuant to this chapter shall be credited on the term of any imprisonment, if any, for which the defendant is sentenced in the criminal case which was suspended pursuant to Section 1370 or 1370.1. As used in this section, 'time spent in a hospital or other facility' includes days a defendant is treated as an outpatient pursuant to Title 15 (commencing with Section 1600) of Part 2.")

51 Penal Code 1370(c)(1) PC. ("(c)(1) At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.")

See also Penal Code 1370.01(c)(1) PC. ("(c)(1) If, at the end of one year from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter, the defendant has not recovered mental competence, the defendant shall be returned to the committing court. The court shall notify the county mental health director or his or her designee of the return and of any resulting court orders.")

52 Penal Code 1370(c)(2). ("(2) Whenever any defendant is returned to the court pursuant to paragraph (1) or (2) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Any hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the community program director or a designee, the sheriff and the district attorney of the county in which criminal charges are pending, and the defendant's counsel of record. The court shall notify the community program director or a designee, the sheriff and district attorney of the county in which criminal charges are pending, and the defendant's counsel of record of the outcome of the conservatorship proceedings.")

See also Penal Code 1370.01(c)(2) PC. ("(2) Whenever any defendant is returned to the court pursuant to subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code. Any hearings required in the conservatorship proceedings shall be held in the superior court in the county that ordered the commitment. The court shall transmit a copy of the order directing initiation of conservatorship proceedings to the county mental health director or his or her designee and shall notify the county mental health director or his or her designee of the outcome of the proceedings.")

53 People v. Mickle, (1991) 54 Cal.3d 140, 180. ("We conclude that the verdict finding defendant competent is a nonappealable, interlocutory ruling. It may be reviewed on appeal only from a final judgment in the underlying criminal proceeding.")

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