Key Information

Relevant Statutes and Rules

Cal. Penal Code § 1367(a) (West) et seq.; Cal. Rules of Court, Rule 4.130

What proceedings can occur while the defendant is incompetent

"counsel for the defendant may either demur, move to dismiss the complaint on the ground that there is not reasonable cause to believe [the offense] has been committed and that the defendant is guilty thereof, or make a motion [to suppress evidence or return seized property]."

Cal. Penal Code § 1368.1(a)(1), (b) (West)

"In ruling upon any demurrer or motion described in subdivision (a), (b), or (c), the court may hear any matter which is capable of fair determination without the personal participation of the defendant."

Cal. Penal Code § 1368.1(d) (West)

For felony charges, "the criminal action remains subject to dismissal pursuant to Section 1385, [which weighs in favor of dismissal when the current offense is connected to a mental illness]."

Cal. Penal Code § 1370(d) (West)

Number of examiners required

At least 1.

If defense counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall, upon request of defense counsel, appoint two licensed psychologists or psychiatrists, one to be named by the defense and one to be named by the prosecution.

Cal. Penal Code § 1369 (West)

Qualifications of examiners

licensed psychiatrist or psychologist

Cal. Penal Code § 1369(a)(1) (West)

If it is suspected the defendant has a developmental disability, the court shall appoint the director of the regional center established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the director's designee, to examine the defendant to determine whether the defendant has a developmental disability.

Cal. Penal Code § 1369(a)(2) (West)

"the court shall appoint an expert who meets the guidelines established in accordance with this subdivision or an expert with equivalent experience and skills. If there is no reasonably available expert who meets the guidelines or who has equivalent experience and skills, the court may appoint an expert who does not meet the guidelines."

Cal. Penal Code § 1369(h) (West)

What must the evaluation report contain

The report shall include the opinion of the expert regarding all of the following matters:
(A) A diagnosis of the defendant's mental condition, if any.
(B) Whether the defendant, as a result of a mental disorder or developmental disability, is able to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.
(C) Whether there is a substantial likelihood that the defendant will attain competency in the foreseeable future, with consideration as to whether the defendant would attain competency in response to treatment with antipsychotic medication.
(D) If requested by the defense, an opinion as to whether the defendant is eligible for mental health diversion pursuant to Section 1001.36.

Cal. Penal Code § 1369 (West)

"The report must include the following:
(A) A brief statement of the examiner's training and previous experience as it relates to examining the competence of a criminal defendant to stand trial and preparing a resulting report;
(B) A summary of the examination conducted by the examiner on the defendant, including a summary of the defendant's mental status, a diagnosis under the most recent version of the Diagnostic and Statistical Manual of Mental Disorders, if possible, of the defendant's current mental health disorder or disorders, and a statement as to whether symptoms of the mental health disorder or disorders which motivated the defendant's behavior would respond to mental health treatment;
(C) A detailed analysis of the competence of the defendant to stand trial using California's current legal standard, including the defendant's ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner as a result of a mental health disorder;
(D) A summary of an assessment--conducted for malingering or feigning symptoms, if clinically indicated--which may include, but need not be limited to, psychological testing;
(E) Under Penal Code section 1369, a statement on whether treatment with antipsychotic or other medication is medically appropriate for the defendant and whether the defendant has capacity to make decisions regarding antipsychotic or other medication as outlined in Penal Code section 1370. If a licensed psychologist examines the defendant and opines that treatment with antipsychotic medication may be appropriate, the psychologist's opinion must be based on whether the defendant has a mental disorder that is typically known to benefit from that treatment. A licensed psychologist's opinion must not exceed the scope of their license. If a psychiatrist examines the defendant and opines that treatment with antipsychotic medication is appropriate, the psychiatrist must inform the court of their opinion as to the likely or potential side effects of the medication, the expected efficacy of the medication, and possible alternative treatments, as outlined in Penal Code section 1370;
(F) A list of all sources of information considered by the examiner, including legal, medical, school, military, regional center, employment, hospital, and psychiatric records; the evaluations of other experts; the results of psychological testing; police reports; criminal history; statement of the defendant; statements of any witnesses to the alleged crime; booking information, mental health screenings, and mental health records following the alleged crime; consultation with the prosecutor and defendant's attorney; and any other collateral sources considered by the examiner in reaching a conclusion;
(G) If the defendant is charged with a felony offense, a recommendation, if possible, for a placement or type of placement or treatment program that is most appropriate for restoring the defendant to competency; and
(H) If the defendant is charged only with a misdemeanor offense, an opinion based on present clinical impressions and available historical data as to whether the defendant, regardless of custody status, appears to be gravely disabled, as defined in Welfare and Institutions Code section 5008(h)(1)(A).

Cal. Rules of Court 4.130(d)

Are low-level offenses excluded from restoration

For a misdemeanor: a court must first consider whether the defendant is eligible for diversion or CARE court. If defendant is ineligible for diversion, the court shall (1) order modification of existing mental health diversion treatment plan, (2) refer the defendant to assisted outpatient treatment, (3) refer the defendant to the county conservatorship investigator, (4) refer the defendant to CARE program, or (5) dismiss the charges.

Cal. Penal Code § 1370.01(b) (West); Cal. Rules of Court 4.130(f)(3). 

"If a person is adjudged mentally incompetent pursuant to the provisions of this chapter, the superior court may dismiss any misdemeanor charge pending against the mentally incompetent person."

Cal. Penal Code § 1370.2 (West)

Is there a pathway for diversion following a finding of incompetence to stand trial

(a)(1)(B)(iii) If restoring the person to mental competence is not in the interests of justice, the court shall conduct a hearing, pursuant to Section 1001.36, and, if the court deems the defendant eligible, grant diversion pursuant to that section for a period not to exceed two years from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the complaint, whichever is shorter. . . .
(III) If the court finds the defendant ineligible or unsuitable for diversion based on the circumstances set forth in subdivision (b) or (c) of Section 1001.36, or if any of the conditions described in subdivision (g) of Section 1001.36 are present, the court may, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether to do any of the following:
(ia) Order modification of the treatment plan in accordance with a recommendation from the treatment provider.
(ib) Refer the defendant to assisted outpatient treatment. . .
(ic) Refer the defendant to the county conservatorship investigator in the county of commitment for possible conservatorship proceedings for the defendant . . .
(id) Refer the defendant to the CARE program pursuant to Section 5978 of the Welfare and Institutions Code. . . .
(ie) Reinstate competency proceedings, in which case the court shall credit any time spent in mental health diversion against the maximum term of commitment as specified in paragraph (1) of subdivision (c).

Cal. Penal Code § 1370(a)(1)(B)(iii)

For a felony: "If, at any time after the court finds that the defendant is mentally incompetent and before the defendant is transported to a facility pursuant to this section, the court is provided with any information that the defendant may benefit from diversion pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, the court may make a finding that the defendant is an appropriate candidate for diversion.
(II) Notwithstanding subclause (I), if a defendant is found mentally incompetent and is transferred to a facility described in Section 4361.6 of the Welfare and Institutions Code, the court may, at any time upon receiving any information that the defendant may benefit from diversion pursuant to Chapter 2.8A (commencing with Section 1001.35) of Title 6, make a finding that the defendant is an appropriate candidate for diversion."

Cal. Penal Code § 1370(C)(v) (West)

For a misdemeanor:  a court must first consider whether the defendant is eligible for diversion or CARE court. If defendant is ineligible for diversion, the court shall (1) order modification of existing mental health diversion treatment plan, (2) refer the defendant to assisted outpatient treatment, (3) refer the defendant to the county conservatorship investigator, (4) refer the defendant to CARE program, or (5) dismiss the charges.

Cal. Penal Code § 1370.01(b)(1), (4) (West); Cal. Rules of Court 4.130(f)(3).

What are the locations for restoration services

Felony: Inpatient if previously found incompetent on a sex offense and  has been denied bail, or violent felony, unless court finds defendant will not pose a danger of harm to safety of others. Can otherwise be community-based or outpatient.

Cal. Penal Code § 1370(a)(1)(C), (H) (West)

What is the test for restorability

"no substantial likelihood that the defendant will regain mental competence in the foreseeable future"

Cal. Penal Code § 1370(b)(1) (West)

What is the procedure after restoration

In all cases, the patient shall be returned to the committing court no later than 10 days following the filing of a certificate of restoration. The state shall only pay for 10 calendar days for patients who remain in a facility described in Section 4100 of the Welfare and Institutions Code following the filing of a certificate of restoration of competency. The State Department of State Hospitals shall report to the fiscal and appropriate policy committees of the Legislature on an annual basis in February, on the number of days that exceed the 10-day limit prescribed in this subparagraph. This report shall include, but not be limited to, a data sheet that itemizes by county the number of days that exceed this 10-day limit during the preceding year.

Cal. Penal Code § 1372(a)(3) (West)

"If the committing court approves the certificate of restoration to competence as to a person in custody, the court shall notify the State Department of State Hospitals by providing the State Department of State Hospitals with a copy of the court order or minute order approving the certificate of restoration to competence. The court shall hold a hearing to determine whether the person is entitled to be admitted to bail or released on own recognizance status pending conclusion of the proceedings. If the superior court approves the certificate of restoration to competence regarding a person on outpatient status, unless it appears that the person has refused to come to court, that person shall remain released either on own recognizance status, or, in the case of a developmentally disabled person, either on the defendant's promise or on the promise of a responsible adult to secure the person's appearance in court for further proceedings. If the person has refused to come to court, the court shall set bail and may place the person in custody until bail is posted."

Cal. Penal Code § 1372(d) (West)

A defendant subject to either subdivision (a) or (b) who is not admitted to bail or released under subdivision (d) may, at the discretion of the court, and only upon the recommendation of the person or entity that issued the certification of restoration to competence, be returned to the hospital or facility of their original commitment or other appropriate secure facility approved by the community program director, the county mental health director, or the regional center director. If the recommendation was submitted by the State Department of State Hospitals, the defendant shall be placed at a facility described in Section 4100 of the Welfare and Institutions Code at the discretion of, and as directed by, the department. The recommendation submitted to the court shall be based on the opinion that the person will need continued treatment in a hospital or treatment facility in order to maintain competence to stand trial or that placing the person in a jail environment would create a substantial risk that the person would again become incompetent to stand trial before criminal proceedings could be resumed or completed.

Cal. Penal Code § 1372(e) (West)

What is the procedure if there is a finding of unrestorability

"custody of the defendant shall be transferred without delay to the committing county and shall remain with the county until further order of the court. The defendant shall be returned to the court for proceedings pursuant to . . . no later than 10 days following receipt of the report. The court shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment. The court shall transmit a copy of its order to the community program director or a designee."

Cal. Penal Code § 1370(b)(1) (West)

If it appears to the court the defendant is gravely disabled, "the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code."

Cal. Penal Code § 1370(c)(3) (West)

What are the time limits on initial transfer to restoration services

Felony/inpatient: 90 days.

"If the sheriff has not delivered the defendant to a State Department of State Hospitals facility within 90 days after the department's written notice, the commitment to the State Department of State Hospitals shall be automatically stayed and the department may remove the defendant from the pending placement list until the court notifies the department in writing that the defendant is available for transport and the defendant shall regain their place on the pending placement list."

Cal. Penal Code § 1370 (West)

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

"custody of the defendant shall be transferred without delay to the committing county and shall remain with the county until further order of the court. The court shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment. The court shall notify the community program director or a designee of the return and of any resulting court orders."

Cal. Penal Code § 1370(c)(1) (West)

If it appears to the court the defendant is gravely disabled, "the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code."

Cal. Penal Code § 1370(c)(3) (West)

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

Felony: two years or maximum term of imprisonment, whichever is shorter.

Cal. Penal Code § 1370(c)(1) (West)