(Subd (a) amended effective January 1, 2018.)
(Subd (b) amended effective January 1, 2020.)
(Subd (c) amended effective January 1, 2020.)
(Subd (d) amended effective May 13, 2022; previously amended effective January 1, 2018, January 1, 2020, and September 1, 2020, and May 13, 2022.)
(Subd (f) amended effective May 13, 2022; previously amended effective January 1, 2020.)
If a defendant eligible for commitment under section 1370 is granted diversion under section 1001.36, and during the period of diversion the court determines that criminal proceedings should be reinstated under section 1001.36(g), the court must, under section 1369, appoint a psychiatrist, licensed psychologist, or any other expert the court may deem appropriate, to examine the defendant and return a report, opining on the defendant's competence to stand trial. The expert's report must be provided to counsel for the People and to the defendant's counsel.
(Subd (g) amended effective May 13, 2022; adopted effective January 1, 2020; previously amended effective September 1, 2020, and May 13, 2022.)
(Subd (h) amended effective May 13, 2022; adopted effective January 1, 20202020; previously amended effective May 13, 2022.)
Cal. R. Ct. 4.130
Advisory Committee Comment
The case law interpreting Penal Code section 1367 et seq. established a procedure for judges to follow in cases where there is a concern whether the defendant is legally competent to stand trial, but the concern does not necessarily rise to the level of a reasonable doubt based on substantial evidence. Before finding a reasonable doubt as to the defendant's competency to stand trial and initiating competency proceedings under Penal Code section 1368 et seq., the court may appoint an expert to assist the court in determining whether such a reasonable doubt exists. As noted in People v. Visciotti (1992) 2 Cal.4th 1, 34-36, the court may appoint an expert when it is concerned about the mental competency of the defendant, but the concern does not rise to the level of a reasonable doubt, based on substantial evidence, required by Penal Code section 1367 et seq. Should the results of this examination present substantial evidence of mental incompetency, the court must initiate competency proceedings under (b).
Once mental competency proceedings under Penal Code section 1367 et seq. have been initiated, the court is to appoint at least one expert to examine the defendant under (d). Under no circumstances is the court obligated to appoint more than two experts. (Pen. Code, Section 1369(a).) The costs of the experts appointed under (d) are to be paid for by the court as the expert examinations and reports are for the benefit or use of the court in determining whether the defendant is mentally incompetent. (See Cal. Rules of Court, rule 10.810, function 10.)
Subdivision (d)(3), which provides that the defendant's statements made during the examination cannot be used in a trial on the defendant's guilt or a sanity trial in a not guilty by reason of sanity trial, is based on the California Supreme Court holdings in People v. Arcega (1982) 32 Cal.3d 504 and People v. Weaver (2001) 26 Cal.4th 876.
Although the court is not obligated to appoint additional experts, counsel may nonetheless retain their own experts to testify at a trial on the defendant's competency. (See People v. Mayes (1988) 202 Cal.App.4th 908, 917-918.) These experts are not for the benefit or use of the court, and their costs are not to be paid by the court. (See Cal. Rules of Court, rule 10.810, function 10.)
Both the prosecution and the defense have the right to a jury trial. (See People v. Superior Court (McPeters) (1995) 169 Cal.App.3d 796.) Defense counsel may waive this right, even over the objection of the defendant. (People v. Masterson (1994) 8 Cal.4th 965, 970.)
Either defense counsel or the prosecution (or both) may argue that the defendant is not competent to stand trial. (People v. Stanley (1995) 10 Cal.4th 764, 804 [defense counsel may advocate that defendant is not competent to stand trial and may present evidence of defendant's mental incompetency regardless of defendant's desire to be found competent].) If the defense declines to present evidence of the defendant's mental incompetency, the prosecution may do so. (Pen. Code, Section 1369(b)(2).) If the prosecution elects to present evidence of the defendant's mental incompetency, it is the prosecution's burden to prove the incompetency by a preponderance of the evidence. (People v. Mixon (1990) 225 Cal.App.3d 1471, 1484, fn. 12.)
Should both parties decline to present evidence of defendant's mental incompetency, the court may do so. In those cases, the court is not to instruct the jury that a party has the burden of proof. "Rather, the proper approach would be to instruct the jury on the legal standard they are to apply to the evidence before them without allocating the burden of proof to one party or the other." (People v. Sherik (1991) 229 Cal.App.3d 444, 459-460.)