Competency to Stand Trial in California
(Penal Code 1368 PC)


Under California's law on “competency to stand trial,” a defendant cannot be tried or convicted of a crime if:

  • The defendant is not able to understand what is going on in court, or 
  • The defendant cannot rationally participate in his or her own defense.1

This right arises from the Sixth Amendment to the U.S. Constitution, which is part of the Bill of Rights. The Sixth Amendment guarantees a fair trial to everyone charged with a crime.2

For a trial to be fair, the defendant must be able to participate meaningfully in his or her own defense

What makes someone incompetent to stand trial?

A defendant may be incompetent to stand trial if:

  • He or she suffers from a chronic mental illness or developmental disability, or
  • A trauma or medical condition has caused a temporary mental break.

Difference between incompetency and insanity under California law

Incompetency to stand trial is not the same as a California insanity (M'Naughten) defense. Important differences between incompetency and insanity include:

The date as of which incompetency and insanity are determined.

Incompetency is determined as of the date of the criminal proceedings. It has to do with whether the defendant is able to understand the charges and participate in his or her defense.

Insanity is determined as of the time of the offense. It has to do with whether the defendant understood what he/she was doing at the time of an allegedly wrongful act.

Incompetence delays proceedings. Insanity is a complete defense.

A defendant who is criminally insane cannot be convicted of a crime at all.

A defendant who is incompetent cannot be tried or convicted while the incompetency lasts.

Some defendants are permanently incompetent. But others are only incompetent for a temporary period of time. They can be tried as soon as they are once again competent.

Example: Marie is accused of assault and battery. But Marie suffers from bipolar disorder. When she does not take her medicine, she sometimes suffers from bipolar psychosis. At such times she cannot always tell what is real.

If Marie assaulted someone during a psychotic episode, she might be not guilty by reason of insanity.

BUT

If Marie only stopped taking her medicine because she was put in jail, she would probably not be ruled insane. However, she might be found to be incompetent to stand trial until such time as she is back on her medication and able to understand what is happening.

How does a defendant prove incompetence?

Incompetency is determined at a special hearing in front of a civil (not a criminal) judge. In California, a competency hearing can be requested by either:

  • The judge in the original criminal case, or
  • The defendant or the defendant's lawyer.

The defendant will be examined by at least one court-appointed psychiatrist or licensed psychologist. There will then be a hearing at which both the prosecution and the defense can present evidence.

The issue of the defendant's competence will be decided by a judge or – if either the defense or the prosecution requests it – by a jury.

The burden of proof in a competency hearing in California

The burden is on the defense to prove incompetence by a “preponderance of the evidence.” This means that the defendant must prove that it is “more likely than not” that the defendant is incompetent.

If the defendant is found to be incompetent, the proceedings will be postponed until such time as the defendant regains competency. If the defendant does not prevail in the competency hearing, the criminal case will recommence.

To help you better understand how incompetency is determined under California law, our California criminal defense lawyers discuss the following, below:

Sad young woman seeing multiple images of herself

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 Constitution requires it.

The Sixth Amendment to the United States 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. For this reason, someone who is "mentally incompetent" at the time of his or her 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. He/she is unable to understand the nature of the criminal proceedings (i.e., what is going on in the trial and why), OR
  2. He/she is unable to assist his or her lawyer in a rational manner. 8

In practice this means the defendant must have a "rational as well as factual understanding of the proceedings against him." 9

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 Lewis cannot explain it. This may show that he 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

Example: Lisa, who suffers from paranoid delusions, is accused of assault (California Penal Code 240 PC).  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.

Mental illness versus developmental disability

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:

  1. Originated before the defendant turned eighteen (18), and
  2. Can be expected to continue indefinitely.

Developmental disabilities include conditions such as:

  • intellectual developmental disorder (formerly known as “mental retardation”),
  • cerebral palsy,
  • epilepsy,
  • autism, or
  • other conditions that are closely related to an intellectual disability. 12

2.2. Distinct from the "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.

The insanity defense is a complete defense

Unlike incompetency to stand trial, 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 he or she 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 explain in Section 3 of this article, a defendant who is not competent to stand trial will receive mental health treatment.

The goal of such treatment is that the defendant will get better and become competent to stand trial. If that happens, the criminal case will recommence. The accused can still be convicted. 15

Insanity is based on the defendant's condition at the time of the alleged crime, not the trial.

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

This is important because the very experience of being accused of a crime can take a huge toll on people. Both those with a history of mental illness and those who have never suffered from it can experience problems that render them incompetent to stand trial.

Incompetence and insanity are judged by different standards

California law requires different tests for insanity versus incompetence to stand trial. The test for insanity is the so-called "M'Naghten" or "McNaughton" test. The M'Naugten 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? 18

But 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. 19

Examples of difference between incompetence and insanity

Example 1: Harry suffers from bipolar disorder. He sometimes experiences manic episodes with delusions of grandeur. At such times, he is unable to control his behavior.

During one of these episodes, Harry 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 California's "Grand Theft Auto" law. But 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 assert the insanity defense.

Example 2: Kate also suffers from bipolar disorder. But she controls her symptoms with medication and regular counseling.

Kate is arrested for insider trading under California securities fraud laws. After posting bail Kate can no longer 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. She cannot hold a conversation with her lawyer. Kate will not be able to use the insanity defense because she was not legally 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

California Penal Code 1368 PC and related sections create a process for challenging a defendant's competency through a hearing in court. The hearing is basically a mini-trial in which the only issue is whether the defendant is competent to stand trial.

3.1. When a competency hearing is required

Under California law, a competency hearing can be requested by either the judge or the defense attorney.

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 he or she believes the defendant is competent. 20

If the defense attorney doubts the client's competence, the judge is required to suspend the criminal proceedings. The judge must then schedule a separate hearing to determine the defendant's competency. 21

And even if the defense lawyer thinks the defendant is competent, the judge may still order a competency hearing if the judge continues to have doubts.  22

Competency hearings are usually requested by the defense

Generally, a California competency hearing will be requested by the defendant's attorney. As Los Angeles and San Bernardino County criminal defense attorney Neil Shouse 23 explains:

"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.
The defense lawyer is also charged with defending a client's constiutional rights. He or she will want to make sure the client's Sixth Amendment rights are not violated by a trial conducted while the client is incompetent."

To get a competency hearing, the defense must present "substantial evidence" that the defendant is currently incompetent. If the judge agrees, he or she must temporarily stop the criminal trial and hold a hearing on the competency issue.  24

3.2. Substantial evidence of mental incompetence

Courts define "substantial evidence" of incompetence as evidence strong enough to raise a reasonable doubt in the judge's mind.25 But reasonable doubt about mental competence is a rather subjective standard.

Here are some examples drawn from actual cases that show when courts are likely to believe that a hearing is required:

Example 1: 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. By itself, this is NOT substantial evidence that Theo isn't competent to stand trial. Rather it shows that Theo is unwilling, but not unable, to cooperate in his defense.  26
Example 2: William tells his lawyer that he wants to plead guilty to murder charges and receive the death penalty. William has a history of psychiatric illness. He has also been hoarding medication for a suicide attempt.

But the court rules that none of this behavior reflects negatively on William's ability to understand criminal proceedings or participate in his own defense. So a hearing is NOT required.  27

Example 3: James is on trial for spousal rape. Before the trial, a psychiatrist examines him and writes a report suggesting that James may need psychiatric treatment.

On the second day of trial, James shoots himself in an unsuccessful suicide attempt. As a result, he has to miss part of the trial. 

James' 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 IS required.  28

Example 4: 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' reports conclude that John is a paranoid schizophrenic. The reports state that John needs to be hospitalized because he is a danger to himself and others.

These reports ARE substantial evidence that John is not competent to stand trial.  29

Multiple reflected Image of young man covering his ears

3.3. Competency hearing

In California, competency hearings are civil rather than criminal proceedings. 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 Competency must be determined by a jury only if either the defendant or the prosecution specifically requests a jury hearing -- in which case, it must be granted.  33

Before the hearing starts, the court must appoint at least one psychiatrist or licensed psychologist. The psychiatrist or psychologist will examine the defendant to determine whether he or she is competent to stand trial.

The judge may also order an evaluation by an official from the regional center for the developmentally disabled.  34 The judge will do so if he or she thinks the defendant might have a developmental or learning disability.

Does the defendant have to undergo a mental health evaluation?

The judge can order a mental health or disability evaluation, even if the defendant does not want one. The Fifth Amendment right against self-incrimination does not apply in a competency hearing.  35

Who has the burden of proof in a California competency hearing?

The presumption in a California competency hearing is that the defendant is competent to stand trial. So the burden is on the defendant to prove that he or she is NOT competent. 

Lack of competence does NOT need to be proven "beyond a reasonable doubt."

It must be proved by a preponderance of the evidence. This means that the jury (or the judge if there is no jury) must simply conclude it is "more likely than not" that the defendant is incompetent.  36

But if the hearing is tried by a 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 (or the jurors cannot agree), the criminal trial will begin again where it left off.  38

That is not necessarily the end of the story, though. A second competency hearing may be required if:

  • There is a substantial change of circumstances, or
  • New evidence emerges that casts doubt on the result of the first hearing.  39

For example, the defendant might experience a worsening of his or her symptoms. Or the psychiatrist who examined the defendant at the first hearing might later change his or her mind about the defendant's competence.  40

3.5. If the defendant is found to be incompetent

A determination of incompetence is not necessarily the end of the matter. The defendant can still be tried and convicted of the crime later.

But in the immediate aftermath of a finding of incompetence, the criminal trial must be temporarily suspended. It will remain suspended until:

  • The defendant regains competence, or
  • The facility treating the defendant reports that the defendant's incompetence is likely to last for more than the maximum period of incarceration for the crime.  41

Required psychiatric treatment; commitment to facility

After a finding of incompetence to stand trial, the defendant will be required to undergo psychiatric treatment. He or she 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.

Outpatient treatment

In some cases, the court may allow an incompetent defendant to receive treatment on an outpatient basis.  42

But if the charges were for a felony California sex crime that would require sex offender registration, the defendant will likely be sent to a state hospital or another secure facility.  43

Outpatient treatment is also unlikely if the crime charged is a violent felony under California's Three Strikes Law.44

What happens if the defendant tries to leave the treatment facility?

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

Progress reports

A facility treating an incompetent defendant must provide the court with regular updates on the accused'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

When the defendant regains competence

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 by presenting substantial evidence of incompetence. If the court agrees, a new competency hearing must be held.  49

Credit for time served in treatment

If a defendant who was treated for incompetence is later found guilty, he or she will receive credit for the period in which he or she was in treatment. This applies whether treatment was received in a state hospital, treatment facility, or outpatient therapy.  50

This "time served" will be credited against any prison or jail sentence the accused might otherwise face.

This is why it is often very worthwhile for a mentally ill or disabled defendant to request a competency hearing. Even though a defendant may still face criminal penalties if his or her competency is restored, he or she will be looking at less time in prison. Also, he or she will have received potentially valuable treatment for the underlying mental condition.

Example: Paula is arrested and charged with felony vandalism, California Penal Code 594 PC. The arrest causes her to become severely withdrawn and unresponsive.

Paula's California defense lawyer requests and obtains a competency hearing. Paula is found to be incompetent to stand trial. The judge in the criminal case orders her into a California state psychiatric hospital.

After one year of treatment, Paula is deemed competent to stand trial. She is found guilty and sentenced to 16 months in jail.

But Paula receives credit for the year she spent in treatment. As a result, she will spend just six months in jail.

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 the report may state that competence will not be restored in a reasonable period of time.

For purposes of California's competency laws, a "reasonable period" for recovery is defined as the shortest of:

  • The maximum jail or prison sentence for the most serious crime charged, or
    • Two (3) years for felony charges, or
    • One (1) year if the defendant is charged with a misdemeanor.  51

If this happens, it will be assumed that the defendant is unable to look after his/her own interests. He or she will go back to court for a conservatorship proceeding.  52 This means that the judge will appoint a person or organization to care for and make decisions for the defendant, 

4. Appealing a competency decision

California competency determines can be appealed at many different stages of the proceedings. A defendant may appeal if:

  • A judge decides not to hold a competency hearing, or
  • A judge or jury wrongly concludes that the defendant is competent to stand trial.

But a decision that the accused was competent to stand trial can only be appealed after the criminal trial and only if:

  1. The defendant is found "guilty," and
  2. He or she appeals the conviction generally.  53
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Call us for help

If you believe that a loved one is not competent to stand trial, we invite you to contact us for a free consultation.

We can also help you file an appeal if you or a loved one was convicted of a crime after being wrongfully found to be competent.

Call us at 855-LawFirm to speak with an experienced California criminal defense attorney in your area.

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 many other locations throughout California.

We may also be able to help if you need to challenge you or your loved one's competence to stand trial in Nevada.


Legal References:

  1. 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.")
  2. 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.")
  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. 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.")
  19. 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.")
  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 Centerin 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.")
  41. Penal 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.")
  42. Penal 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.")
  49. People 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.") Note that the statutory period for felonies was reduced from 3 years to 2 years with the passage of SB 1187 on September 30, 2018.

  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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