§ 1369. — 1369. (Amended by Stats. 2024, Ch. 646, Sec. 3.)

A determination of the question of mental competence shall proceed in the following order:
(a)
(1)
The court shall suspend criminal proceedings and shall appoint at least one licensed psychologist or psychiatrist to examine the defendant’s mental condition. 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.
(2)
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. The regional center director or their designee shall determine whether the defendant has a developmental disability, as defined in Section 4512 of the Welfare and Institutions Code, and is therefore eligible for regional center services and supports. The regional center director or their designee shall provide the court with a written report informing the court of this determination.
(b)
(1)
A licensed psychologist or psychiatrist shall evaluate the defendant and submit a written report to the court. 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.
(2)
(A)
The examining licensed psychologists or psychiatrists shall evaluate whether treatment with antipsychotic medication, as defined in subdivision (
l
) of Section 5008 of the Welfare and Institutions Code, is appropriate for the defendant. The evaluation of whether treatment with antipsychotic medication is appropriate shall be done in accordance with subparagraphs (B) and (C). The examining licensed psychologists or psychiatrists shall also opine whether the defendant lacks the capacity to make decisions regarding antipsychotic medication, as outlined in subclauses (I) and (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(B)
If a licensed psychologist examines the defendant and opines that treatment with antipsychotic medication may be appropriate, their opinion shall be based on whether the defendant has a mental disorder that is typically known to benefit from that treatment. A licensed psychologist’s opinion shall not exceed the scope of their license. That opinion about the potential benefit of antipsychotic medication is not a prescription for that medication.
(C)
If a psychiatrist examines the defendant and opines that treatment with antipsychotic medication is appropriate, the psychiatrist shall 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 subclause (III) of clause (i) of subparagraph (B) of
paragraph (2) of subdivision (a) of Section 1370.
(c)
(1)
If neither party objects to any competency report submitted pursuant to subdivision (b), the court may determine the competency of the defendant based on any such competency report. The court shall also determine whether the defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication.
(2)
If either party objects to any competency report and requests a hearing, the court shall hold a hearing to determine competence and to determine whether the defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication, pursuant to subparagraph (B) of paragraph (2) of subdivision (a) of Section 1370.
(3)
In a hearing to determine competence, the defendant shall be presumed competent to stand trial unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.
(4)
If counsel for the defendant waives the right to a jury trial and the prosecution consents, or as provided in paragraph (5), the hearing shall be heard by the court. Otherwise, a determination of the defendant’s competency to stand trial shall be decided by a jury. The verdict of the jury shall be unanimous.
(5)
In a proceeding for a violation of probation, mandatory supervision, postrelease community supervision, or parole, the hearing shall be heard by the court.
(d)
(1)
The State Department of State Hospitals, on or before July 1, 2017, shall adopt guidelines for education and training standards for a psychiatrist or licensed psychologist to be considered for appointment by the court pursuant to this section. To develop these guidelines, the State Department of State Hospitals shall convene a workgroup comprised of the Judicial Council and groups or individuals representing judges, defense counsel, district attorneys, counties, advocates for people with developmental and mental disabilities, state psychologists and psychiatrists, professional associations and accrediting bodies for psychologists and psychiatrists, and other interested stakeholders.
(2)
When making an appointment pursuant to this section, 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.
(e)
This section does not preclude the court from appointing any other qualified expert to evaluate the defendant’s mental condition in addition to a licensed psychologist or psychiatrist.

Legislative History

Amended by Stats. 2024, Ch. 646, Sec. 3. (SB 1323) Effective January 1, 2025.