Retroactive Psychiatric Examination of Competency to Stand Trial

In Drope v. Missouri (1975), 420 U.S. at page 183 95 S. Ct. at page 909, the court said: "The question remains whether petitioner's due process rights would be adequately protected by remanding the case now for a psychiatric examination aimed at establishing whether petitioner was in fact competent to stand trial in 1969. Given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances, see Pate v. Robinson, 383 U.S., at 386-387 95 S. Ct. at pp. 842-843; Dusky v. United States (1960), 362 U.S. 402, 403 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 we cannot conclude that such a procedure would be adequate here. Cf. Conner v. Wingo (6th Cir. 1970) 429 F.2d 630, 639-640. the State is free to retry petitioner, assuming, of course, that at the time of such trial he is competent to be tried." Substantial evidence of mental incompetence is evidence that raises a reasonable doubt on the issue. (People v. Alvarez (1996) 14 Cal. 4th 155, 211 58 Cal. Rptr. 2d 385, 926 P.2d 365.) In determining whether there is substantial evidence of incompetence, a court must consider all of the relevant circumstances, including counsel's opinion. (People v. Howard (1992) 1 Cal. 4th 1132, 1164 5 Cal. Rptr. 2d 268, 824 P.2d 1315.) "The 'inexactness and uncertainty' that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering." (Cooper v. Oklahoma, supra, 517 U.S. at p. 365 116 S. Ct. at p. 1382 ) Thus, "what constitutes . . . substantial evidence in a proceeding under section 1368 'cannot be answered by a simple formula applicable to all situations.' Citation." (People v. Laudermilk (1967) 67 Cal. 2d 272, 283 61 Cal. Rptr. 644, 431 P.2d 228.) " 'Sufficient present ability' " to cooperate with a lawyer and assist rationally in preparing a defense includes more than an "orientation as to time and place," and "some recollection of events is not enough." (People v. Tomas (1977) 74 Cal. App. 3d 75, 88 141 Cal. Rptr. 453.) Mere bizarre statements or actions are generally insufficient to constitute substantial evidence raising a doubt as to the defendant's competency. (People v. Burney (1981) 115 Cal. App. 3d 497, 503 171 Cal. Rptr. 329.) On the other hand, the testimony of one mental health professional that the defendant is unable to assist in his or her defense because of a mental defect constitutes substantial evidence sufficient to compel a hearing. ( People v. Stankewitz (1982) 32 Cal. 3d 80, 92 184 Cal. Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476.) Where the substantial evidence test is satisfied, but the trial court fails to conduct a full hearing on competency, the judgment must be reversed. (People v. Welch (1999) 20 Cal. 4th 701, 738 85 Cal. Rptr. 2d 203, 976 P.2d 754.) It is not essential for the defendant, his or her counsel, or the prosecutor to make a motion which raises the issue of the defendant's competence in order to permit consideration of the issue on appeal. (People v. Tomas, supra, 74 Cal. App. 3d at p. 88; see also People v. Aparicio (1952) 38 Cal. 2d 565, 568-569 241 P.2d 221.) Rather, the presence of the requisite substantial objective evidence compels the trial court to sua sponte suspend proceedings and order a hearing, and the court's failure to do so in the face of such evidence is an act in excess of its jurisdiction and may be raised by the defendant on appeal from the judgment. (Marks, supra, 1 Cal. 4th at p. 69; People v. Tomas, supra, 74 Cal. App. 3d at p. 90.) The trial court's duty includes sua sponte reconsideration of pro se status where there is substantial evidence bringing the defendant's competency into doubt. (See People v. Poplawski (1994) 25 Cal. App. 4th 881, 890-891 30 Cal. Rptr. 2d 760.)