By Maria E. Stratton
Persons charged with crimes cannot be tried if they are incompetent. Both judges and attorneys handling criminal cases must know the process used to determine whether a person is competent.
The objective of this article and self-study test is to review the rules applicable in California state courts for adjudicating competence in felony cases. Readers will learn about the standards for determining competence, the process used when a doubt exists regarding competence, the competency hearing, and the consequences of being found incompetent, including the appropriateness of ordering involuntary antipsychotic medication for the defendant.
Incompetent persons accused of criminal offenses cannot be tried. Penal Code Section 1367(a). "The trial and conviction of a person mentally and physically incapable of making a defense violates certain immutable principles of justice which inhere in the very idea of free government." Sanders v. Allen, 100 F.2d 717 (D.C. Cir 1938); see also In re Dennis, 51 Cal.2d 666 (1959).
Neither a defendant's attorney nor the defendant personally can waive the issue of competence. People v. Hale, 44 Cal.3d 531 (1988). Convicting a person who is incompetent either at the time of trial or guilty plea violates due process and compels automatic reversal. Pate v. Robinson, 383 U.S. 375 (1966).
What is required for a person to be considered incompetent to stand trial? In both felonies and misdemeanors, Penal Code Section 1367(a) provides that a defendant is mentally incompetent "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." Subsumed within this provision is the requirement that the defendant must comprehend his or her own status and role in the criminal proceedings. People v. Conrad, 132 Cal.App.3d 361 (1982).
In California, Penal Code Section 1370 governs competence procedures in felony cases. Misdemeanor cases are covered by Penal Code Sections 1367.1 and 1370.01, while procedures for incompetence due to developmental disability are set forth in Penal Code Section 1370.1. This article will address felony cases only and will not address misdemeanor cases or any cases involving developmental disability.
The competence of a defendant is usually called into question in one of two ways: the defendant's attorney alerts the judge or the judge personally notices that the defendant may not be competent. The court initiates competence proceedings by "declaring a doubt" about the defendant's competence in the record and conducting a competency hearing. Penal Code Section 1368(a).
The judge might notice erratic conduct by the defendant in court or at the time of arrest, or even the color of the defendant's jail-issue clothing; in Los Angeles, inmates wear yellow when the Sheriff's Department classifies them as having mental problems. The judge must offer defense counsel an opportunity to state whether counsel believes the defendant to be competent. Penal Code Section 1368(a). Counsel, however, is under no obligation to respond. See Tarantino v. Superior Court, 48 Cal.App.3d 465 (1975). Counsel's rendering an opinion on competence does not violate the attorney-client privilege, even if the opinion is principally drawn from confidential communications with the defendant. See Evidence Code Section 954; People v. Bolden, 99 Cal.App.3d 375 (1979). If the defendant is pro per, the court must appoint an attorney to assist the defendant in competence proceedings. Penal Code Section 1368(a). Once a doubt is declared, defendants lose the right under Faretta to represent themselves until a finding of competence is made.
Most often defense counsel will raise the issue with the court, stating that counsel believes a doubt exists about competence. The court need not accept the attorney's opinion. The court is compelled to initiate competence proceedings only when it concludes that there is objective substantial evidence of a doubt about a defendant's competence. Penal Code Section 1368(b); People v. Hayes, 21 Cal.4th 1211 (1999). In all other situations where substantial evidence is not present, the court has discretion whether to start competence proceedings. See People v. Welch, 20 Cal.4th 701 (1999).
Evidence is substantial if it raises a reasonable doubt regarding the defendant's competence, that is, if there is a reasonable doubt whether the defendant is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. People v. Jones, 53 Cal.3d 1115 (1991). The court can appoint an expert to evaluate the defendant and prepare a non-confidential opinion as to whether a doubt should be declared regarding the defendant's competence. Evidence Code Section 730.
The safer way for the court to proceed if it is unsure whether the defendant is competent is to go ahead and declare a doubt and commence competence proceedings. A trial court can be reversed for erroneously failing to declare a doubt and start competence proceedings. People v. Stankewitz, 32 Cal.3d 80 (1982). On the other hand, it is unlikely that a decision to declare a doubt and conduct a hearing will be reversed so long as the hearing is actually conducted. See People v. Marks, 45 Cal.3d 1335 (1988).
Once the court declares a doubt, it must suspend criminal proceedings until the defendant is determined to be competent. Penal Code Section 1368(c). The effect of suspending the proceedings is to "stop the clock." All time limitations are suspended and the court must now conclude the competence proceedings within a reasonable amount of time. Under Section 1368(c), if the doubt was declared in the middle of a jury trial, the judge should discharge the jury only "if it appears to the court that undue hardship would result if the jury is retained on call."
There are a few specifically named exceptions to the suspension of criminal proceedings. Despite a pending unresolved doubt or a finding of incompetence, the court can rule on motions to dismiss (including motions made under Section 1385), motions to suppress evidence, and demurrers. In addition, the court can conduct preliminary hearings. Penal Code Section 1368.1.
Depending on the practice of the county, the hearing on competence is conducted before the judge that declared the doubt or elsewhere. In Los Angeles, for example, in felony cases where a preliminary hearing has not yet been conducted, the competency issue only is transferred to Department 95 for a hearing; in all other felonies, the hearing is conducted in the assigned trial court. There is no requirement that the competency hearing be conducted by the same judge that declared the doubt. People v. Hill, 67 Cal.2d 105 (1967).
The defendant has a statutory right to a jury trial to determine competence. Penal Code Section 1369. There is a presumption of competence and incompetence must be established by a preponderance of the evidence. The burden of proof is on the party seeking the finding of incompetence. Penal Code Section 1369(f). Under this same section, trials on the issue of competence are considered civil in nature and are subject to the same rules as other civil cases regarding the number of peremptory challenges and number of jurors to be empaneled.
Most of the time, defense counsel will waive the right to jury trial. Counsel can waive the defendant's right even over the client's objection. People v. Masterson, 8 Cal.4th 965 (1994). A formal adversary hearing on the issue of competence is not required if the prosecutor and defense counsel stipulate that the determination be made by the court based on the written reports of the court-appointed psychiatrists. People v. Weaver, 26 Cal.4th 876 (2001). Allowing counsel to waive the defendant's rights does not violate due process. People v. McPeters, 2 Cal.4th 1148 (1992).
The judge can conclude that the defendant is competent to stand trial through a trial, a formal hearing, or by submission of court-appointed expert or experts' reports. If the defendant is found competent, criminal proceedings are reinstated. Penal Code Section 1370(a)(1)(A).
If the doubt was declared before the preliminary hearing, criminal proceedings resume as 0 of 10 for the preliminary hearing; if the doubt was declared after the preliminary hearing while the defendant was in a trial court, the clock is reset as 0 of 60 to commence trial. Penal Code Section 1382(a)(2). Day 0 is the day the finding of competence is made by the court.
If the defendant is found incompetent to stand trial, the court must "commit" the defendant to a state mental facility for treatment to restore competence. The court must also make an order regarding the defendant's anti-psychotic medication, and must set the maximum term of commitment for treatment.
With respect to the commitment, the court must order the defendant delivered, "to a state hospital for the care and treatment of the mentally disordered, or to any other available public or private treatment facility approved by the community program director that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status." Penal Code Section 1370(a)(1)(B)(i). However, before making such a placement order, the judge must order "a community program director or a designee to evaluate the defendant and to submit to the court within 15 judicial days of the order a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or committed to a state hospital or to any other treatment facility." Penal Code Section 1370(a)(2)(A).
Regarding antipsychotic medication, if the defendant consents to taking medication, the court should so state for the record and order that if the defendant, upon arriving at the state hospital, refuses to take medication as prescribed by the treating psychiatrist and the psychiatrist determines that the defendant lacks the capacity to make such decisions, the court should be immediately notified so that a hearing can be scheduled as to whether an order permitting involuntary medication should be issued. Penal Code Section 1370(a)(2)(B)(i).
If the defendant does not consent, the court must conduct a hearing as to whether medication should be ordered administered to the defendant involuntarily. The court can order that medication be administered over the defendant's objection if it finds that the defendant lacks the capacity to decide whether taking medication is in his best interest; the defendant poses a danger to himself or others; or as a last resort, whether taking medication is necessary to restore defendant to competence. See Penal Code Section 1370(a)(2)(B)(ii).
To order involuntary medication under the third criteria, that is, medicating to restore competence, several conditions must be satisfied to comport with due process. Sell v. United States, 539 U.S. 166 (2003). These include that the defendant is "charged with a serious crime; involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendant's ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patient's best medical interest in light of his or her medical condition." Penal Code Section 1370(a)(2)(B)(ii)(III).
Finally, in ordering the defendant committed to receive treatment to restore competence, the court must set a maximum commitment date, that is, the date after which the defendant can no longer be held involuntarily for treatment to restore competence. Penal Code Section 1370(c). For felonies, the maximum confinement date is three years from the date of commitment or the maximum term of imprisonment, whichever is shorter. Penal Code Section 1370(c)(1).