Return to CALJIC Part 3-4 – Contents
F 4.10 n1 Competence To Stand Trial.
The burden is properly placed on accused to prove incompetency. (Medina v. California (92) 505 US 437 [120 LEd2d 353, 359-68; 112 SCt 2572].)
Cooper v. Oklahoma (96) 517 US 348 [134 LEd2d 498; 116 SCt 1373] held that it is unconstitutional for a state to give a defendant the burden of proof by clear and convincing evidence regarding the issue of competency to stand trial. Rather, the Federal Constitution requires that the standard be no more than a preponderance of the evidence.
[Research Note: See FORECITE BIBLIO 4.00, et al.]
F 4.10 n2 Present Mental Competence: Allocation Of Burden When Co-Counsel, But Not Defendant, Claims Incompetence (PC 1367; PC 1368; PC 1369).
People v. Skeirik (91) 229 CA3d 444, 459 [280 CR 175] cautioned trial judges not to rely uncritically on the standard instruction regarding the burden of proving incompetency in situations when the defendant is not seeking the finding of incompetency. When the prosecution, or the trial court on its own motion, is presenting evidence of incompetency, the standard instruction should be modified so that the burden of proof is not allocated to the defendant.
In People v. Stanley (95) 10 C4th 764, 801-18 [42 CR 543], the defendant and one of his attorneys contended that defendant was competent, while co-counsel contended that he was not. A third attorney was appointed and evidence was presented from which the jury was required to determine whether the defendant was competent. Under these circumstances, the Supreme Court held that it was correct to instruct the jury that “the one contending the defendant is mentally incompetent” bears the burden of proof. (Stanley, 10 C4th at 817-18.)
F 4.10 n3 Mental Competence: Allocation Of Burden When Defendant Is Involuntarily Medicated.
PC 1369 places the burden upon the defendant to prove that he or she is mentally incompetent by a preponderance of the evidence. (See FORECITE F 4.10 n1 [placing burden on defendant does not violate the federal constitution].) The question of whether the burden is properly placed on the defendant when the defendant is involuntarily medicated with anti-psychotic drugs was recognized but not resolved in People v. Jones (97) 15 C4th 119, 158-59 [61 CR2d 386].
F 4.10 n4 Competency: Burden Of Proving Continued Incompetence.
People v. Rells (2000) 22 C4th 860, 867 [94 CR2d 875] held that PC 1372 establishes a presumption that the defendant is mentally competent and the burden is on him to prove otherwise at a restoration of competency hearing.
F 4.10 n5 Competency: Duty Of Court To Order Evaluation.
If the trial court becomes aware of substantial evidence to doubt a defendant’s competency to stand trial due to a developmental disability, it is reversible error not to appoint the director of the regional center for the developmentally disabled to evaluate the defendant, pursuant to PC 1369, before ruling on competency to stand trial. (People v. Castro (2000) 78 CA4th 1402, 1420 [93 CR2d 770]; see also Baqleh v. Superior Court (2002) 100 CA4th 478 [122 CR2d 673] [judicially declared immunity negates defendant’s assertion of Fifth Amendment privilege; defendant has no right under Fifth Amendment to refuse to submit to a mental examination by a prosecution expert pursuant to a PC 1368 hearing].)
F 4.10 n6 Competency As To Misdemeanor (PC 1367.1): Equal Protection.
(See Pederson v. Superior Court (2003) 105 CA4th 931 [130 CR2d 289] [PC 1367.1 deprives misdemeanor defendants suspected of being incompetent to stand trial of equal protection and is unconstitutional].)
F 4.10 n7 Competency: Duty Of Court To Order Hearing.
Once substantial evidence of the incompetency of a defendant has been introduced, the court is required to conduct a PC 1368 hearing on the defendant’s competency. (People v. Ary (2004) 118 CA4th 1016.) The fact that counsel specifically stated that competency was “not an issue” did not waive argument on appeal, because competency cannot be waived by counsel; it is the court’s duty. (People v. Hale (88) 44 C3d 531; People v. Pennington (67) 66 C2d 508.)
F 4.10 n8 Competency: Improper To State Defendant’s Burden In Terms Of CJ 2.01.
By giving CJ 2.01 at a competency proceeding, however, the trial court erroneously places on defendant the burden not only of producing evidence of his incompetence that is more convincing than not, but also the additional burden of disproving every rational conclusion and reasonable interpretation of the evidence except that which points to incompetence. That burden conflicts with, and is higher than, the preponderance standard dictated by California’s competency scheme and sanctioned by the United States Supreme Court. (People v. Johnwell (2004) 121 CA4th 1267.)
F 4.10 n9 Competency: Informing Jury That Defendant Will Not Be Paroled If Found Incompetent; Informing Jury That Defendant Is Ineligible For Parole.
See People v. Turner (2004) 34 C4th 406, 433-34 [rejecting the analogy to the penalty phase of a capital trial].
F 4.10 n10 Competency: Impeachment Of Defendant With Statements Made During Competency Examination.
See People v. Pokovich (2006) 39 C4th 1240.
F 4.10 n11 "Substantial Evidence" Of Incompetency.
"Substantial evidence has been defined as evidence that raises a reasonable doubt concerning the defendant’s competence to stand trial." (People v. Young (2005) 34 C4th 1149, 1217 [internal citations and quotation marks omitted].)
F 4.10a
Doubt of Present Mental Competence Guilt vs. Innocence
*Modify ¶ 2 of CJ 4.10 to provide as follows [added language is capitalized; deleted language is between <<>>]:
In this proceeding you must decide whether the defendant is mentally competent to be tried for a criminal offense. This is not a criminal proceeding, and <<the innocence or guilt of the defendant>> WHETHER OR NOT DEFENDANT HAS BEEN PROVEN GUILTY BEYOND A REASONABLE DOUBT of the criminal charge against [him] [her] is not involved [nor is the question of [his] [her] legal insanity at the time of the commission of the offense involved.]
Points and Authorities
[See FORECITE F 1.00b]
Accordingly, CJ 4.10 should also be revised.
The argument advanced by FORECITE regarding the impropriety of instructing the jury in terms of the defendant’s “guilt or innocence” was approved in People v. Han (2000) 78 CA4th 797, 809 [93 CR2d 139, 148]: “We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC Committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.” [Referring to CJ 2.01.] [Original emphasis.]
However, the court held that the error was harmless: “While a trial judge would do better, we think, to give the modifications proposed here, we find no reversible error considering the instructions as a whole.” (Ibid.)
F 4.10b
Mental Competence: Specification Of Standard
*Modify 1st element of CJ 4.10 to provide as follows [added language is capitalized]:
1. [He] [She] is capable of, AND ACTUALLY HAS, A RATIONAL AND FACTUAL understanding OF the nature and purpose of the proceedings against [him] [her];
Points and Authorities
In Dusky v. U.S. (60) 362 US 402, 402 [4 LEd2d 824; 80 SCt 788], the court held that "the ‛test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational, as well as factual, understanding of the proceedings against him.’" CJ 4.10 is based on PC 1367, which does not expressly include the Dusky requirement of an actual rational, as well as factual, understanding of the proceedings. While it has been suggested that the language of PC 1367 is sufficient to convey the Dusky requirements to the jury (see James H. v. Superior Court (78) 77 CA3d 169, 177 [143 CR 398]), express instruction on the Dusky requirement is necessary to assure that the jury makes the requisite finding that the defendant actually has a sufficient understanding of the proceedings. (But see People v. Dunkle (2005) 36 C4th 861 [CALJIC 4.10’s definition of competency is sufficient under Dusky v. United States (1960) 362 US 402 [4 LEd2d 824; 80 SCt 788], even though the language is not identical].) Failure to require a jury finding of the elemental prerequisites for imposition of criminal liability implicates the defendant’s state (Art. I, §15 and §16) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (See generally, FORECITE PG VII(C).)
F 4.10c
Mental Competence:
Informing Jurors As To Consequences Of Incompetency Finding
ALERT: See People v. Dunkle (2005) 36 C4th 861 [no right to have jury instructed on the legal effect of a finding of incompetence, refusing to extend People v. Moore (1985) 166 CA3d 540 (defendant entitled to instruction on consequences of NGI verdict)].
