Criminal Law

3451. Present Mental Competence of Defendant

You must decide whether the defendant is mentally competent to stand trial. That is the only purpose of this proceeding. Do not consider whether the defendant is guilty or not guilty of any crime or whether (he/she) was sane or insane at the time that any alleged crime was committed.

The defendant is mentally competent to stand trial if (he/she) can do all of the following:

1. Understand the nature and purpose of the criminal proceedings against (him/her);

2. Assist, in a rational manner, (his/her) attorney in presenting (his/her) defense;


3. Understand (his/her) own status and condition in the criminal proceedings.

The law presumes that a defendant is mentally competent. In order to overcome this presumption, ((the defendant/the People) must prove/it must be proved) that it is more likely than not that the defendant is now mentally incompetent because of a (mental disorder/developmental disability).

[A developmental disability is a disability that begins before a person is 18 years old and continues, or is expected to continue, for an indefinite period of time. It must be a substantial handicap and does not include other handicapping conditions that are solely physical in nature. Examples of developmental disabilities include mental retardation, cerebral palsy, epilepsy, autism, and conditions closely related to mental retardation or requiring treatment similar to that required for mentally retarded individuals.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct the jury on the standard for competence.

The party that seeks a finding of incompetence bears the burden of proof. If the court raises the issue, neither party bears that burden. Choose the appropriate language regarding which party bears the burden of proof in the paragraph that begins with "The law presumes that . . . ." (People v. Skeirik (1991) 229 Cal.App.3d 444, 459-460 [280 Cal.Rptr. 175].)

Give CALCRIM No. 3550, Pre-Deliberation Instructions, and any other relevant posttrial instructions, such as CALCRIM No. 222, Evidence, or CALCRIM No. 226, Witnesses.

Do not give CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence, or CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State. These instructions have "no application when the standard of proof is preponderance of the evidence." (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274 [18 Cal.Rptr.3d 286]).


Instructional Requirements. Pen. Code, §§ 1367-1370.

Developmental Disability Defined. Pen. Code, § 1370.1(a)(1)(H).

Presumption of Competence. Pen. Code, § 1369(f).

Unanimous Verdict. Pen. Code, § 1369(f).

Secondary Sources

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 698.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 64, Suspension of Criminal Proceedings, §§ 64.01, 64.02 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124, Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).

Related Issues

Threshold for Section 1368 Hearing

A trial court must conduct a section 1368 hearing when there is substantial evidence of incompetence. (People v. Cox (1978) 82 Cal.App.3d 221, 225- 226 [147 Cal.Rptr. 73].) Substantial evidence raises a reasonable doubt about the defendant's competence to stand trial. (People v. Frye (1998) 18 Cal.4th 894, 951-952 [77 Cal.Rptr.2d 25, 959 P.2d 183].)

Defense Counsel May Seek Finding Contrary to Client's Wishes

A section 1368 hearing is civil in nature. Since neither guilt nor innocence is at issue, defense counsel must "advocate the position counsel perceives to be in the client's best interests even when that interest conflicts with the client's stated position [citation]." (People v. Stanley (1995) 10 Cal.4th 764, 804 [42 Cal.Rptr.2d 543, 897 P.2d 481].)

(New January 2006)