PC 1368 Motions Explained: Competency to Stand Trial & Criminal Defense

California Penal Code section 1368 details the criminal court procedure as it relates to the determination of a defendant’s mental competency to stand trial. PC 1368 applies in both misdemeanor or felony criminal cases.


To begin with, a defendant has a Sixth Amendment right to understand the nature of any criminal proceedings against her and for her to be able to assist her lawyer in those criminal proceedings. If there is a doubt as to the defendant’s mental competency such that she might not be able to understand the criminal proceedings against her, or reasonably assist in her defense, the court will set a PC 1368 hearing to determine whether or not the criminal proceedings should be temporarily suspended in order to allow the defendant time to restore her mental competency to stand trial, or reinstate criminal proceedings.


Essentially, per PC 1368, if a criminal court judge believes that a criminal defendant is suffering from a mental disorder or developmental defect such that she can not understand the criminal proceedings, or assist her attorney in her defense, then the judge will suspend the criminal proceedings until the judge is satisfied that the defendant is mentally competent to stand trial.


A mental disorder encompasses a broad range of cognitive-affecting diseases and defects of the mind, such as schizophrenia; a developmental defect is a mental disorder that begins before a person’s 18th birthday and continues into adulthood and that which is likely to continue, such as mental retardation.


Declaring a Doubt: In practice, a criminal defendant’s attorney is often the person who presents the defendant’s possible mental incompetency status to the judge. There’s nothing fancy about the defendant’s attorney’s presentation of the issue to the court. It general, the defense attorney will make the following statement to the court: “You’re honor, at this time, and pursuant to PC 1368, I am declaring a doubt as to the defendant’s mental competency to stand trial.” Of course, a judge may also personally recognize objective signs of mental incompetency of the defendant during court hearings.


PC 1368 Procedure


If the criminal court believes that a defendant is not mentally competent to stand trial, then the judge must state that belief on the record. The judge will also ask the defendant’s criminal defense attorney his or her opinion of the issue.


If the judge determines that there is sufficient evidence to suggest that the defendant is not mentally competent to stand trial (after discussion with the defendant’s attorney), then the judge will set a PC 1368 hearing where the issue of the defendant’s mental competency is discussed and analyzed between the judge, the district attorney, and the defendant’s criminal defense attorney.


If the judge is satisfied that the defendant is mentally competent to stand trial (after the discussion with the defendant’s attorney), then the judge may continue the criminal proceedings without setting the PC 1368 hearing. The judge may also set a PC 1368 hearing even if the defendant’s attorney does not agree with the judge’s perception of the defendant’s cognitive ability to competently proceed to trial.


Note: If the judge and the defendant’s attorney agree as to the defendant’s mental incompetency, then the issue will make the court’s record. Also, if only the criminal defendant’s attorney declares a doubt as to the defendant’s mental incompetency, the judge will set a PC 1368 motion regardless of what the judge believes on the issue. Alternatively, if only the judge believes the defendant is not mentally competent to proceed, then the judge must place her belief on the record and set a PC 1368 hearing.


Note: Once a defendant’s criminal defense attorney declares a doubt as to the defendant’s mental competency to stand trial the defense attorney cannot withdraw that declaration. It is the burden of the defendant to prove that more likely than not she is not competent to stand trial (Preponderance of the evidence standard).


Mental Health Evaluation: If the judge determines that the issue of mental competency to stand trial is at issue, then the judge will order the PC 1368 hearing and order the defendant to undergo a mental health analysis. This means that defendant is ordered to a mental health facility to be evaluated for up to 72 hours, usually by a psychiatrist. The mental health professional will prepare a report for the court’s consideration on the issue at the PC 1368 hearing. The PC 1368 hearing will be heard within a reasonable amount time, but with enough time to give the psychiatrist and defense attorney time to prepare for the hearing.


What is Mental Competency in Criminal Court



1. A defendant is deemed mentally competent to stand trial if the defendant:

2. Understands the nature and the purpose of the criminal proceedings against her;

3. Is able to assist her criminal defense attorney in the preparation of her defense;

4. Understands her own situation as it relates to the criminal proceedings.



The PC 1368 Hearing


At the “PC 1368” hearing, the issue of the defendant’s mental competency to stand trial will be discussed by and between the judge, the district attorney, and the defendant’s criminal defense counsel.


The evidence presented at the PC 1368 hearing will usually include a mental health provider’s written and/or oral analysis of the issue. Other evidence on the issue may be submitted, including non-scientific, non-expert witness statements from friends and family on the issue (if those statements are not already incorporated into the mental health provider’s analysis). In fact, even the criminal defense attorney for the defendant may present evidence and give an opinion in support of a finding of mental incompetency.


Defense Burden of Proof


A defendant has the burden of proving to the court that more likely than not she is incompetent to stand trial (preponderance of the evidence standard). The defendant does not have to prove to the court that she is incompetent to stand trial to point where a person would have an abiding conviction that the allegation of mental incompetency is true (beyond a reasonable doubt standard).


PC 1368 Findings


After the PC 1368 hearing concludes, the judge will make a ruling on the issue and she may do any of the following:


  • Suspend the criminal proceedings if the defendant is found to be mentally incompetent to stand trial. If the judge suspends the criminal proceedings, then the defendant will be ordered to a mental health facility for up to four months in order to recover from her mental disorder, if possible. In some cases, the judge will allow more than four months where progress is made towards the goal of becoming mentally competent to stand trial.


  • Continue the criminal proceedings if the defendant is found to be mentally competent to stand trial (aka “resume criminal proceedings” or “reinstate criminal proceedings”).



Note: A PC 1368 hearing is a civil hearing. The judge at a PC 1368 hearing does not decide the guilt or innocence of a defendant. Rather, the issue to be decided is only whether or not the defendant is mentally competent to stand trial. Also, a criminal defense attorney must advocate for the position that is in the best interest of the defendant, even if that position is contrary to the defendant’s wishes.


Competent to Stand Trial v. Insanity


There is a difference between mental incompetency and insanity. Mental competency relates to whether or not the defendant is suffering from a mental disorder or developmental defect that affects her ability to understand the criminal proceedings and/or meaningfully assist in her own defense at the time of the criminal court proceedings. Insanity is a complete defense to some crimes where the defendant was suffering from a mental disease or defect such that she did not understand right from wrong and/or the nature and quality of her actions at the time the crime was allegedly committed.


For example, A defendant can be deemed legally insane at the time of her alleged offense, but mentally competent to stand trial for that alleged offense during her criminal court case. In this situation, the defendant could be committed to a mental hospital until she recovers from her mental disease or defect, if ever, but she cannot be found criminal liable for her alleged offense.


On the other hand, the defendant could be found to be legally sane at the time of her alleged offense, but declared mentally incompetent to stand trial when the time comes for her criminal court case. In this second scenario, the court sill suspend the criminal proceedings until the defendant regains her mental competency to stand trial.


Also, insanity defense applies to some crimes, whereas mental competency applies to all misdemeanor and felony crimes.


Speedy Trial Issues and Mental Incompetency: A defendant has a right to a speedy trial. In most cases this means that the defendant must be brought to trial within sixty days of information arraignment in a felony case and within 45 days or arraignment in a misdemeanor case (other time limitations apply). However, when a judge or defense attorney declares a doubt as to the defendant’s mental competency to stand trial, then the court proceedings are “suspended” and the time limitations are suspended as well.


For example, if defendant is charged with misdemeanor DUI, then the district attorney must commence her trial within 45 days from the day of arraignment (30 days if she is in custody), unless the defendant “waives time.” But is defendant’s defense attorney declares a doubt as to the defendant’s competency to stand trial at arraignment, then the 45 days does not begin to run; rather, the criminal proceedings are suspended until the issue is resolved. The same ‘suspension of time rights’ applies to preliminary hearings in felony cases.


Note: PC 1368 also applies to violation of probation hearings


PC 1368 Law.


PC 1368(a): If, during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, post-release community supervision, or parole, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.



PC 1368(b): If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.



PC 1368(c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.



If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call.



If the defendant is declared mentally incompetent, the jury shall be discharged.



To learn more about PC 1368 hearings, or motions to determine mental incompetency to stand trial, contact our criminal defense lawyers for a free in-office, first-visit consultation.


Our criminal defense lawyers handle all misdemeanor and felony matters in San Bernardino County, including the cities of Fontana, Redlands, Yucaipa, Victorville, San Bernardino, Ontario, Rancho Cucamonga, Rialto, Chino, Hesperia, and Highland. Our criminal defense lawyers are available seven days a week to assist you and in some cases we can even handle consultations at local jails for a small fee (Adelanto Detention Center, West Valley Detention Center, Glen Helen Jail, CDC). Call today!


909-913-3138


California Penal Code 1368 Motion: Incompetent to Stand Trial. Criminal Defense Lawyers
PC 1368 Hearing: Competent to Stand Trial

Related Topics