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What You Need to Know About Competency to Stand Trial – Penal Code Section 1368 PC

Competency to Stand Trial – California Penal Code 1368 PC

The Sixth Amendment to the Constitution of the United States guarantees every person the right to a fair trial. The idea behind this constitutional right is that, if you are accused of a crime in the United States, you must be able to adequately defend yourself in a court of law. In order to adequately defend yourself, you must be able to understand the nature of the proceedings and be able to assist your attorney in preparation of your case. 1

What happens when you or a loved one are unable to understand the crime, or have a mental illness that impairs communication with a lawyer? California law provides safeguards that prevent such mentally impaired individuals from being prosecuted for a crime by providing procedures that ensure that defendants are mentally competent to stand trial.

Mental Competency under California Penal Code 1368 PC

Under PC 1368, either your attorney or a judge may question your mental competency. The judge can declare the need for a determination of your mental competency based on his or her interactions with you in court. Counsel will be appointed for to you if you do not already have an attorney.

If the judge questions your mental competency, your attorney is then asked to give an opinion on the matter. If necessary, your attorney may request a continuance to allow time to form an opinion about your level of understanding and ability to participate in your defense. 2

If the judge does not raise a question regarding your mental competence, your attorney can declare that he or she doubts your ability to understand the charges or to participate in your own defense. Your attorney must then provide substantial evidence of incompetency, which means there must be enough evidence of mental disability at the time of trial that a judge could reasonably conclude that you might be incompetent. 3

The Process of Declaring a Defendant Incompetent

Regardless of whether the judge forms a doubt on his or her own, or whether your defense attorney provides substantial evidence that calls your competency into question, the next step is to conduct a hearing to determine your competency to stand trial. The hearing may take place before a jury if requested by you or by the prosecutor.

At the competency hearing, the court will appoint a psychiatrist or licensed psychologist to examine you. If the suspected impairment is a learning or developmental disability, the court may also appoint a developmental disability expert to evaluate you. These examinations may be ordered over your objection.

A competency hearing places the burden on your attorney to show that you are not competent to stand trial. However, unlike a criminal trial, the competency hearing is a civil proceeding. This means that your attorney does not need to prove beyond a reasonable doubt that you are incompetent. Instead, your attorney need only show by a preponderance of the evidence that you are unable to understand the nature of the criminal proceeding or incapable of providing rational assistance to your attorney in preparing the defense.

Possible Outcomes of a Competency Hearing

competency court in California
If you are found incompetent to stand trial, the trial will be temporarily suspended.

If you are found to be competent, the trial will resume as originally planned, unless new evidence regarding your competency is later uncovered, at which point another competency hearing may be held. However, if you are found to be incompetent, the trial will be suspended, at which point the court may order one of the following actions:

  • Commitment to a secure state mental hospital or treatment center for people with developmental disabilities (if appropriate);
  • Commitment to an approved treatment facility, including county jail; or
  • Commitment to receive treatment on an outpatient basis.

The type of commitment for treatment is dependent upon the type of crime with which you have been charged. If you are charged with a felony sex crime or a violent felony crime, you may be committed to a secure state hospital. If you are charged with a misdemeanor, you may be ordered to undergo treatment on an outpatient basis.

Competency vs. Insanity

Competency and the insanity defense are often confused, but they are two distinctly different concepts in law. One major difference between these concepts is timing. Competency is an issue that is evaluated at the time of trial, while insanity is an issue that must be evaluated at the time when the alleged crime was committed.

Another key difference is how the two concepts arise in a courtroom. If you are deemed incompetent, the trial stops until you have received treatment for your mental illness. If your condition is treatable, eventually you will have to stand trial and answer for the crime. Therefore, an incompetent person may become competent, and then either be acquitted or convicted.

Insanity, however, is used as a defense as to the crime itself. Unlike a person who is declared incompetent, if you are judged to have been insane at the time the crime was committed, you cannot be punished for the crime. Instead, you may be committed to a state mental health facility.

Frequently Asked Questions on Competency to Stand Trial

At Wallin & Klarich, we commonly receive questions from clients regarding hearings for determining competency to stand trial. Some of these include:

1. Can a decision in a competency hearing be appealed?

Yes. However, if the judge or jury wrongly concludes that a person was competent to stand trial, the decision cannot be appealed until after he or she is convicted. In addition to the determination made in the hearing, the decision not to hold a hearing is also a subject for appeal. A judge may decline to schedule a competency hearing despite substantial evidence that the defendant may not be have been competent to stand trial. This decision can also be appealed, but only after a conviction for the crime has been made. 4

2. Am I required to have a history of mental illness or a developmental disability in order to be found incompetent?

No. There are a number of factors that may contribute to an altered mental state, regardless of whether you have history of mental illness in the past. The shock of facing serious criminal consequences may trigger temporary or (in some cases) permanent mental disabilities.

3. What if, after treatment, I have not regained competency?

Throughout the treatment, the facility will send reports to the court about your progress in treatment. However, in some cases, the facility may predict that your condition is severe, and that you are not expected to regain your competency within a reasonable time. The court will then appoint a conservator, a person or organization that will make decisions for you if you are unable to do so for yourself.

Contact the Attorneys at Wallin & Klarich If You Think You Are or May Have Been Mentally Incompetent

Wallin & Klarich Competency to Stand Trial attorneys
The attorneys at Wallin & Klarich are ready to fight to protect your rights. Call our offices today.

If you are suffering from a mental illness or developmental disability and you are facing trial in the near future or are seeking to appeal a criminal conviction due to mental incompetence, you need to speak with an experienced criminal defense attorney immediately. At Wallin & Klarich, our attorneys have over 30 years of experience successfully handling competency hearings. Contact us today for a free, no obligation consultation.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California criminal defense near you, no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


1. [See Cal. Pen. Code § 1367(a): “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. [Cal. Pen. Code § 1368(a)]
3. [Cal. Pen. Code § 1368(b)]
4. [See People v. Mickle, (1991) 54 Cal.3d 140, 180.]

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