Penal Code § 1368 PC – Competency to Stand Trial in California

California law on a defendant’s mental competency to stand trial is defined in Penal Code § 1368 PC. Under this section, if a judge believes that a defendant lacks the mental ability to understand the legal proceedings and assist in their defense, then the judge must state that belief in the court’s record. In such cases, a hearing may be ordered to assess if the defendant is indeed incompetent.

The requirement that a defendant be mentally competent to stand trial is protected by the Sixth Amendment to the United States Constitution. The amendment guarantees a fair trial to everyone charged with a crime (including both misdemeanor and felony criminal charges).

A defendant is considered mentally competent to stand trial if he/she can:

• understand the nature and purpose of the criminal process and the proceedings against him/her,
• assist his/her attorney in presenting a defense, and
• understand his/her own status in the criminal prosecution process.

Upon completion of the hearing to determine competency, a judge can:

• suspend the trial or criminal proceedings if he/she finds the accused incompetent, or
• allow the proceedings to continue if he/she finds the defendant mentally competent.

Our California criminal defense attorneys will explain the following in this article:

• 1. What is required under California Penal Code Section 1368?
• 2. How is competency determined in a criminal trial?
• 3. What is “mental competence?”
• 4. What happens if there is a finding of mental incompetence?
• 5. Is a competency hearing a civil or criminal hearing?

1. What is required under California Penal Code Section 1368?

Under California law, this code section requires the judge presiding over a criminal case to do two things if he/she believes a defendant is mentally incompetent. These are:

1. state his/her doubt of the defendant’s competency on the official court record, and
2. ask the defendant’s attorney as to his/her opinion of the accused’s competence.¹

If the defense counsel provides substantial evidence of incompetency, then the judge shall order a competency hearing.² The purpose of a competency hearing is to determine whether or not the accused is, in fact, mentally sound to stand trial.

Note that a defense counsel cannot withdraw his/her doubt of a client’s competency after it is given.³

A competency hearing is where a judge determines whether a defendant is fit to stand trial.

2. How is competency determined in a criminal trial?

A judge rules on an accused’s mental health during the competency hearing.

Upon ordering for such a hearing, the Superior Court judge may direct that the defendant be taken to a state mental hospital (or treatment facility) for a 72-hour treatment and evaluation.⁴

After it completes this evaluation, the facility provides a report of the defendant’s competence to the presiding judge.⁵

The judge considers this report at the hearing, along with any other pertinent evidence (e.g., the defendant’s statements), to determine whether or not the accused is competent.

Note that the defense has the burden to prove that the accused is incompetent during these hearings.

In meeting this burden, the defense does not have to prove incompetency beyond a reasonable doubt. Incompetency, rather, only has to be proven by a preponderance of the evidence.”⁶

A preponderance of the evidence means that the judge has to conclude that it is more likely than not that the defendant is mentally incompetent because of:

• a mental disorder, or
• a developmental disability.⁷

3. What is “mental competence?”

A defendant is mentally competent to stand trial if he/she can do all of the following:

1. understand the nature and purpose of the criminal proceedings against him/her,
2. assist, in a rational manner, his/her attorney in presenting his/her defense, and
3. understand his/her own status and condition in the criminal proceedings.⁸

Put in another way, a defendant is incompetent to stand trial when he/she suffers a mental disorder or developmental disability rendering him/her unable to:

• understand the nature of the criminal proceedings, or
• assist counsel in the conduct of a defense in a rational manner.⁹

A developmental disability is a disability that:

1. begins before a person is18 years old, and
2. continues, or is expected to continue, for an indefinite period of time.¹⁰

4. What happens if there is not a finding of mental incompetence?

A judge temporarily suspends the trial or criminal proceedings with a finding of incompetency.¹¹

In addition, the defendant is then required to undergo psychiatric treatment (by a licensed psychologist). He or she may be committed to:

• a state mental hospital,
• a center for the care and treatment of people with developmental disabilities, or
• another state-approved treatment facility.¹²

The length of the treatment is for:

• up to four months to determine if the accused can regain competency, or
• additional reasonable time for his/her medical condition to improve.¹³

If, however, a judge finds the defendant competent to stand trial, then the trial or criminal proceedings resume.¹⁴

5. Is a competency hearing a civil or criminal hearing?

A hearing conducted pursuant to PC 1368 is civil in nature.¹⁵

Further, since neither guilt nor innocence is at issue, the defense counsel must support that position, for his/her client, which counsel believes to be in the defendant’s best interests. This is true even when those interests conflict with the client’s stated position.¹⁶

Call our law firm for help. We offer free consultations.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide free consultations and they represent clients throughout California, including those in Long Beach and Los Angeles.

Legal References:

1. California Penal Code 1368a PC.
2. CALCRIM No. 3451 – Present Mental Competence of Defendant. Judicial Council of California Criminal Jury Instructions (2020 edition). See also In re Taitano (2017) 13 Cal. App. 5th 233;  People v. Frye (1998) 18 Cal.4th 894; and, People v. Cox (1978) 82 Cal.App.3d 221.
3. People v. Gonzales (2019) 34 Cal.App.5th 1081.
4. California Penal Code 4011.6 PC.
5. See same.
6. CALCRIM No. 3451 – Present Mental Competence of Defendant.
7. See same. See also People v. Frye (1998) 18 Cal.4th 894.
8. CALCRIM No. 3451. See also People v. Rogers (2006) 39 Cal.4^th 826.
9. See same.
10. CALCRIM No. 3451. See also Penal Code 1370.1(a)(1)(H).
11. California Penal Code 1370 PC.
12. See same.
13. See same.
14. See same.
15. CALCRIM No. 3451 – Present Mental Competence of Defendant.
16. See same. See also People v. Stanley (1995) 10 Cal.4th 764.