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self-study / Criminal Law

Doubting mental competence

0914 loc wong

Civic Center Courthouse

Garrett L. Wong

Presiding Judge, San Francisco County Superior Court

Civil Master Calendar

University of Pennsylvania Law School, 1979 

There will be times in criminal cases when a court believes the defendant is mentally incompetent. It is important for bench officers and practitioners to know the procedures that must be followed when this happens.

The objective of this article and accompanying self-study test is to review the law regarding a court declaring a doubt as to a criminal defendant's mental competence. Readers will learn about what triggers a court's duty to declare a doubt and suspend proceedings, what constitutes substantial evidence of incompetence, alternatives to declaring a doubt, self-representation and incompetency, declaring a doubt after a jury is impaneled, and what happens after a doubt is declared.

Declaring a Doubt

If a court has a doubt as to the mental competency of a defendant during the pendency of proceedings, the court must state the existence of the doubt on the record pursuant to Penal Code Section 1368. The procedures in this section apply during the pendency of an action and prior to judgment, and, pursuant to legislation effective in 2015, also to revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, and parole. Pen. Code Section 1368(a).

After the court states it has a doubt, the court must ask the defendant's attorney his or her opinion of the mental competence of the defendant. If the attorney states that the defendant is or may be mentally incompetent, the court must suspend criminal proceedings and initiate proceedings to determine if the defendant is, in fact, incompetent. See Pen. Code Sections 1368(b), 1369. If the attorney states he or she believes that the defendant is competent, the court may, nevertheless, suspend proceedings and initiate competency proceedings. See Pen. Code Section 1368(b).

The court should state on the record the factual basis of the doubt, e.g., a report from the jail (usually from its psychiatric services unit), defendant's demeanor, statements or behavior etc. However, a report provided under Penal Code Section 4011.6 for a psychological evaluation cannot be used, because, pursuant to its own terms, it is confidential. The attorney's opinion is an important key to the judge's next decision. "Although trial counsel's failure to seek a competency hearing is not determinative (see Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2000)), it is significant because trial counsel interacts with the defendant on a daily basis and is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings." People v. Rogers, 39 Cal. 4th 826 (2006).

If at the time of a preliminary hearing the court declares a doubt and defense counsel objects, the court should ask whether defense counsel will request a preliminary examination. See Pen. Code Section 1368.1(a). Under Section 1368.1(a), if counsel makes the demand, the judge must complete the preliminary hearing.

What is not substantial evidence of mental incompetence?

As discussed below, the mere fact that a defendant is acting strangely in court does not mean he or she has a mental disorder that would support a finding of incompetence. Further, even if the defendant has a mental disorder, if there is no evidence of a connection between the mental disorder and his or her inability to understand the proceedings or to assist counsel, there is no substantial incompetency. The following are examples where there is not substantial evidence of incompetency:

- Defense counsel's statements that defendant was incapable of cooperating in his or her defense. People v. Welch, 20 Cal. 4th 701 (1999).

- Evidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence. People v. Hayes, 21 Cal. 4th 1211 (1999); People v. Medina, 11 Cal.4th 694 (1995).

- Suicidal tendencies not accompanied by bizarre behavior, testimony of mental health professional regarding competency, or other indication of defendant's inability to understand proceedings or assist counsel. People v. Rogers, 39 Cal. 4th 826 (2006).

- Fact that defendant has a history of mental disorder without a showing that mental disorder causes an inability to understand proceedings or to assist counsel. People v. Romero, 44 Cal. 4th 386 (2008).

- Defendant's "paranoid distrust of the judicial system," and statements that defense counsel was in league with the prosecution. People v. Welch.

- Defendant's cursing and disruptive actions requiring removal from the courtroom. People v. Medina.

- Bizarre answers to questions on cross-examination. People v. Cooks, 141 Cal. App. 3d 224 (1983).

- Defendant's inappropriate emotional response to a serious trial; statements of step-parents that defendant's behavior during trial was strange; earlier diagnosis by a court-appointed psychiatrist that defendant had a personality disorder, the fact that defendant had suffered head injuries at an unspecified time in the past. People v. Claxton, 129 Cal. App. 3d 638 (1982).

In summary, "more is required to raise a doubt [as to defendant's competence] than mere bizarre actions [citation] or bizarre statements ... or statements of defense counsel that defendant is incapable of cooperating in his defense ... or psychiatric testimony that defendant is immature, dangerous, psychopathic or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense [citation]." People v. Ramirez, 39 Cal. 4th 398 (2006).

What Can the Court do Short of Declaring a Doubt?

Instead of declaring a doubt, a court can ask defense counsel how much contact he or she has had with the defendant. How does defense counsel explain the defendant's strange conduct or speech (if that is what the judge is concerned about)? Ask defense counsel to give the court concrete examples of how the defendant has understood the criminal proceedings or been able to assist counsel.

A court could order a Penal Code Section 4011.6 report from Jail Psychiatric Services (JPS). The report will only indicate whether the defendant is or is not gravely disabled. It may, however, also indicate where in the jail the defendant is housed (if in general population, may not be incompetent), whether the defendant is taking anti-psychotic medication, or whether the defendant is followed in the jail by JPS.

The court could also appoint an expert to render an opinion about competency. Evid. Code Section 730.) It is unnecessary to ask the expert for a full Penal Code Section 1369 evaluation including medication. The expert is only being asked to render an opinion whether there is substantial evidence to believe the defendant is incompetent.

Ordering a Penal Code Section 4011.6 report or appointing an expert does not toll time or suspend criminal proceedings. Only actually declaring a doubt results in suspension of the proceedings and tolling time. See Pen. Code Section 1368(c). Hence, ordering a report or appointing an expert should be done only when there is no issue about speedy trial or hearing rights.

Self-Representation and Mental Competency

On occasion, a court may have a doubt about the mental competency of a defendant seeking self-representation or who is representing himself or herself under Faretta v. California, 422 U.S. 806 (1975). The Supreme Court has found that a person whose competence is in doubt cannot make basic decisions regarding the conduct of a proceeding to determine that very question. People v. Masterson, 8 Cal. 4th 965 (1994). Thus, "If the defendant is not represented by counsel, the court shall appoint counsel." Pen. Code Section 1368(a). The court must then proceed as previously discussed in determining whether a doubt should be declared.

Even if a doubt is not declared, the court must make an additional determination: A court may only accept a waiver of the right to counsel if the court makes "a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her." People v. Lawley, 27 Cal. 4th 102 (2002). The applicable standard is whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present a defense without the help of counsel. People v. Johnson, 53 Cal. 4th 519 (2012).

Competency Issues After a Jury is Impaneled and Sworn to Try Defendant

If a competency hearing has been held and the defendant is found competent to stand trial, a second competency hearing is required only if the evidence shows a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant's competence. People v. Medina, 11 Cal. 4th 694 (1995).

When a doubt is declared by the court as to defendant's competency after the jury has been impaneled and sworn to try defendant, the court must suspend proceedings, but not discharge the jury. If an estimated date of completion for the trial has been given, the court should adjourn the trial (and not explain why, other than to say that there are some legal issues that have arisen), and have the jurors return to court on or near the trial's anticipated completion date. Upon the jury's return, the court should conduct an inquiry with counsel present to determine whether undue hardship to the jurors would result if the jury was retained on call until the final determination whether defendant is competent under Penal Code Section 1369. Pen. Code Section 1368(c). Only after the defendant is declared mentally incompetent shall the jury be discharged. Id.

What Happens After a Doubt is Declared?

Following the court declaring a doubt and proceedings being suspended, the court appoints an expert to render an opinion on the defendant's competency. Pen. Code Section 1369(a). Under Penal Code Section 1369(a), if the defendant's attorney informs the court the defendant is not seeking a finding of incompetence, the court must appoint two experts. A trial is then conducted on the issue of competency (Pen. Code Section 1369), unless waived by the parties. The defendant is entitled to have a jury decide the issue, except in proceedings for determining competency in revoking probation, mandatory supervision, postrelease community supervision, or parole, wherein only a court trial is required. Pen. Code Section 1369(g).


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