Right to Waive Competency to Stand Trial In California
Competence cannot be waived, and the court has the initial and primary duty to act when the facts demonstrate the defendant's possible incompetency; it is the failure of the trial court to raise the issue and suspend proceedings, not the failure of defense counsel to raise the issue, which constitutes the jurisdictional error. (See People v. Howard (1992), 1 Cal. 4th at pp. 1163-1164; People v. Pennington (1967), 66 Cal. 2d at p. 521; Pate v. Robinson (1966) 383 U.S. 375, 384 [86 S. Ct. 836, 841, 15 L. Ed. 2d 815].)
Although the reported cases address incompetency based on mental disease, we see no reason why the same standards and principles should not apply to cases of incompetency based on developmental disability, since the statutes are equally applicable to both types of incompetence.
Case law establishes that the standard to be applied in determining whether to suspend proceedings and evaluate the defendant's competency is an objective one. (People v. Tomas (1977), 74 Cal. App. 3d at p. 90.)
If there is sufficient doubt the defendant may be developmentally disabled, and the suspicion appears on the record as a matter of law, if the trial court fails to proceed in accordance with section 1369, an abuse of discretion is shown, and a reversal is required. (People v. Superior Court (Marks) (1991), 1 Cal. 4th at p. 68; People v. Aparicio, supra, 38 Cal. 2d at p. 568.)