The materials relating to the March 2021 CALCRIM revisions include a comment and request from attorney John T. Philipsborn regarding the failure of California judges “to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions” (See
full text of the request set forth below.) The CALCRIM committee declined to consider Mr. Philipsborn’s request but agreed to consider it at the next meeting: “This comment is outside the scope of the invitation. The committee will consider the suggestion at its next meeting.”
https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-
EFF5-4271-9F84-01B5C2D97B75
However, in the meantime counsel should consider a request to modify Element 2 of CC 3451 to provide as follows:
2. In a rational manner consult with his/her attorney and to assist in
preparing his/her defense; …
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Full text of Mr. Philipsborn’s request:
While this instruction is not presently in your collection of proposed changes and amendments, I am suggesting that the Advisory Committee should suggest a change to element (2) of the competence definition that reads as follows as present: “Assist, in a rational manner, (his/her) attorney in presenting (his/her) defense, the Committee should at the very least make reference to the United States Supreme Court’s seminal decisions on the subject of competence to stand trial.” My suggestion is that the Committee
review Indiana v. Edwards (2008) 554 U.S. 164, 170-71, referencing the standard found in Drope v. Missouri (1975) 470 U.S. 162, 171, which is that the accused can “…consult with counsel, and […] assist in preparing (his/her) defense….” I am respectfully suggesting that this change in the wording of Instruction 3451 because California trial judges who preside over competence-related jury trials are failing to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions. If the Committee is not inclined to suggest this change in the actual instruction, then at the very least, under the
section “Related Issues” that is at the foot of the instruction (which contains no reference to the fundamental definition of competence to stand trial as set forth by the United States Supreme Court), the Committee should set forth a notation that: The United States Supreme Court has succinctly stated that two cases set This comment is outside the scope of the invitation. The
committee will consider the suggestion at its next meeting.
While this instruction is not presently in your collection of proposed changes and amendments, I am suggesting that the Advisory Committee should suggest a change to element (2) of the competence definition that reads as follows as present: “Assist, in a rational manner, (his/her) attorney in presenting (his/her) defense, the Committee should at the very least make reference to the United States Supreme Court’s seminal decisions on the subject of competence to stand trial. “My suggestion is that the Committee
review Indiana v. Edwards (2008) 554 U.S. 164, 170-71, referencing the standard found in Drope v. Missouri (1975) 470 U.S. 162, 171, which is that the accused can “…consult with counsel, and […] assist in preparing (his/her) defense….” I am respectfully suggesting that this change in the wording of Instruction 3451 because California trial judges who preside over competence-related jury trials are failing to provide an instruction on the definition of competence that squares with that set forth by the United States Supreme Court in two separate opinions. If the Committee is not inclined to suggest this change in the actual instruction, then at the very least, under the
section “Related Issues” that is at the foot of the instruction (which contains no reference to the fundamental definition of competence to stand trial as set forth by the United States Supreme Court), the Committee should set forth a notation that: The United States Supreme Court has succinctly stated that two cases set forth the Constitution’s ‘mental competence’ standard, Dusky v. United States(1960) 362 U.S. 402, and Drope v. Missouri (1975) 420 U.S.
162. See Indiana v. Edwards(2008) 554 U.S. 164, 170-71.Inclusion of this note would avoid incorrect reference to Penal Code §§ 1367, et seq. and interpreting California decisions as the exclusive sources of the essential definitions of competence to stand trial.
