A defendant may not be criminally prosecuted while s/he is mentally incompetent, and the state must give him access to procedures for determining his competency.[422]  If the court in which the conviction was rendered had reason to believe that the client was not mentally competent to plead guilty, waive counsel, or proceed to trial, but failed to inquire further into defendant’s competency or to conduct a competency hearing, the plea is invalid.[423]

            There are two distinct arguments with respect to competency.  First is a claim of substantive incompetency, where because of the defendant’s mental condition at the time of the plea, s/he did not in fact enter a free and voluntary, knowing and intelligent plea.  Second, the court may have violated the defendant’s procedural due process right to a competency hearing where sufficient facts give rise to a sua sponte duty on the part of the court to hold a competency hearing before accepting the guilty plea.[424]

 

            The federal constitutional test for the competency of a defendant to enter a plea of guilty is identical to the test for competency to stand trial under the due process clauses of the Fifth and Fourteenth Amendments.[425]  That test requires the defendant to have the “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.’”[426]

 

            Procedural due process requires a court to conduct a competency hearing on its own motion, before permitting a defendant to waive constitutional rights, whenever a reasonable judge would be expected to have a bona fide doubt as to the defendant’s competence.[427]  A bona fide doubt should exist when there is substantial evidence of incompetence.[428]  Although no particular facts signal incompetence, suggestive evidence includes a defendant’s demeanor before the trial court, previous irrational behavior, and available medical evaluations.[429]

 

            Examples of error in this regard abound.  On remand from the United States Supreme Court, the Ninth Circuit held on the facts of the Moran case, a reasonable jurist should have entertained a good faith doubt as to defendant’s competence during the change of plea proceeding, so that the trial court’s failure to hold a competency hearing was a violation of due process.[430]  Upon learning that the defendant was under the influence of anti-depressant medication at the time of the plea, the district court violated its duty to ensure the defendant was mentally competent to enter the plea by failing to inquire into the effects of the drug.[431]  In Odle v. Woodford,[432] the court remanded the case for a competency hearing where the defendant had suffered massive brain trauma and subsequently exhibited psychotic behavior, even though he appeared calm in court.

 

            When a court has reason to doubt a defendant’s competence, in addition to the competency inquiry, the court “must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.”[433]  The court indicated that whereas competency involves a defendant’s general ability to understand the proceedings against him, “‘[t]he purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision.’”[434] 

 

            In United States v. Christensen,[435] the court reversed a conviction after court trial based upon a perfunctory jury waiver, finding that where the defendant’s cognitive or emotional condition has been called into question, the usual presumption that a jury waiver is knowing, voluntary, and intelligent does not operate, and a jury waiver may not be accepted without a more extensive colloquy establishing its voluntariness.

 

Because the federal Constitution forbids criminal proceedings against one who is incompetent, neither defense counsel nor the appellant may waive this claim.[436]  As the Supreme Court has explained, “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.”[437] 

 

Where a claim of ineffective counsel is grounded on failure to raise a claim of incompetency, the defendant must establish a probability that he was in fact incompetent at the time in question.[438]

 

Under the California statutes, the test for incompetency is whether a defendant “is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”[439]  A defendant is presumed mentally competent to stand trial “unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.”[440]  Whenever the trial court has an actual doubt concerning the defendant’s competence, or substantial evidence exists giving rise to reasonable grounds to doubt the defendant’s competence, the court must suspend criminal proceedings and conduct a competency hearing.[441]  The failure to conduct a hearing when such evidence exists cannot be cured by a nunc pro tunc finding of competence.[442]

 

A defendant who claims mental retardation is entitled to a pretrial hearing before the court on the issue of mental retardation.  A prosecution expert may conduct a pretrial examination of defendant for mental retardation.  The defendant is not entitled to unqualified judicial immunity, but possesses a statutory immunity at the guilt phase of the trial and the scope of the testing by the prosecution expert must be limited to tests reasonably related to a determination of defendant's mental retardation.[443] 

[422] See Medina v. California, 505 U.S. 437, 449 (1992), citing Drope v. Missouri, 420 U.S. 162, 172-73 (1975); Pate v. Robinson, 383 U.S. 375, 386 (1966).

[423] People v. Ary (2004) 118 Cal.App.4th 1016 (judge's failure to order competency hearing when he had before him "substantial evidence" of defendant's mental retardation and inability to understand proceedings deprived defendant of constitutional right to fair trial. Case remanded to determine whether retrospective competency may be held. Note that counsel's failure to raise the issue is not a waiver.); Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2004); Miles v. Stainer, 108 F.3d 1109 (9th Cir. 1997); Nicks v. United States, 955 F.2d 161, 166-168 (2d Cir. 1992); United States v. Christensen, 18 F.3d 822, 826 (9th Cir. 1994); Godinez v. Moran, 509 U.S. 389, 125 L.Ed.2d 321, 113 S.Ct. 2680 (1993); Pate v. Robinson, 383 U.S. 375, 385, 15 L.Ed.2d 815, 86 S.Ct. 836 (1966); Blazak v. Ricketts, 1 F.3d 891 (9th Cir. 1993), cert. denied, 511 U.S. 1097 (1994)(trial court failed to conduct competency hearing despite petitioner’s history of mental illness and incompetency finding in prior case); Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992)(trial court’s finding of competency based on legal standard inconsistent with due process, and record contained evidence that would have permitted finding of incompetency under proper standard); Wallace v. Kemp, 757 F.2d 1102 (11th Cir. 1985)(petitioner tried while incompetent); Strickland v. Francis, 738 F.2d 1542 (11th Cir. 1984)(evidence did not support special jury’s finding that petitioner was competent to stand trial).

[424] Patton v. United States, 281 U.S. 276, 312-313 (1930); United States v. Christensen, 18 F.3d 822 (9th Cir. 1994); United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985); see Godinez v. Moran, 113 S.Ct. 2680, 2687 (1993).

[425] Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 2686 (1993).

[426] Dusky v. United States, 362 U.S. 402, 402  (1960) (per curiam).

[427] United States v. Lewis, 991 F.2d 524, 527 (9th Cir.) (competence to plead guilty), cert. denied, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993); Chavez v. United States, 656 F.2d 512, 515-516 (9th Cir. 1981)(same).

[428] Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856; Chavez, 656 F.2d at 517.

[429] Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856; Moran v. Godinez, 40 F.3d 1567, 1572 (9th Cir. 1994) [court was aware defendant was on medications and had suicidal tendencies should have formed a good faith doubt whether he was competent to plead guilty].

[430] Moran v. Godinez, 40 F.3d 1567 (9th Cir. 1994).

[431] United States v. Damon, 191 F.3d 561 (4th Cir. 1999); see United States v. Parra-Ibanez, 936 F.2d 588 (1st Cir. 1991); United States v. Cole, 813 F.2d 43 (3d Cir. 1987).

[432] Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2001),

[433] Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 2687 (1993).

[434] Id. at p. 2687 n.12 [emphasis in original].

[435] United States v. Christensen, 18 F.3d 822 (9th Cir. 1994).

[436] Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966); Miles v. Stainer, 108 F.3d 1109 (9th Cir. 1997)(counsel’s failure to raise competency hearing issue does not render it waived); People v. Hale (1988) 44 Cal.3d 531, 541, 244 Cal.Rptr. 114, 119.

[437] Pate, 383 U.S. at 384.

[438] Theriot v. Whitley, 18 F.3d 311 (5th Cir. 1994); Zapata v. Estelle, 558 F.2d 1017 (5th Cir. 1979); Wilcoxson v. State, 66 Cr.L.Rptr. 81 (Tenn.Crim.App. 1999).

[439] Penal Code § 1367.

[440] Penal Code § 1369, subd. (f); People v. Medina (1990) 51 Cal.3d 870 , 881-886, 274 Cal.Rptr. 849, 799 P.2d 1282.

[441] People v. Marks (1988) 45 Cal.3d 1335; People v. Pennington (1967) 66 Cal.2d 508.

[442] People v. Hale (1988) 44 Cal.3d 531, 541; People v. Pennington (1967) 66 Cal.2d 508.

[443] Centeno v. Superior Court (2004) 117 Cal.App.4th 30.

Ninth Circuit

POST CON RELIEF " GROUNDS " MENTAL COMPETENCY
United States v. Duncan, 643 F.3d 1242 (9th Cir. Jul. 11, 2011) (district court erred in failing to hold a competency hearing prior to allowing the defendant to exercise his right to represent himself during his penalty phase hearing).

POST CON RELIEF " GROUNDS " MENTAL COMPETENCY
United States v. Ferguson, 560 F.3d 1060, 2009 WL 792485 (9th Cir. March 27, 2009)(child pornography conviction is vacated, where after trial Supreme Court decided Indiana v. Edwards, 128 S. Ct. 2379 (2008), prescribing a different standard for evaluating a defendant's mental competency than the one used by the District Court).

Other

CAL POST CON"GROUNDS"RIGHT TO COUNSEL"MENTAL COMPETENCE FOR SELF-REPRESENTATION
People v. Johnson, 53 Cal.4th 519, 267 P.3d 1125 (Jan. 30, 2012) (the fact that a criminal defendant is competent to stand trial does not necessarily mean that he is also competent to represent himself).

GROUNDS " MENTAL COMPETENCY TO ENTER PLEA " INVOLUNTARY MEDICATION
People v. Christiana, No. E048681 In proceedings to determine competency of defendant to stand trial for various offenses, trial court's order authorizing involuntary administration of psychotropic medication is reversed as the required specific showing under the Sell factors was wholly lacking in this case.