(a)If, during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, or parole, a doubt arises in the mind of the judge as to the mental competence of the defendant, the judge shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or defendant’s counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an
opinion as to the mental competence of the defendant at that point in time.
(b)If counsel informs the court that they believe the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined pursuant to Sections 1368.1 and 1369. If counsel informs the court that they believe the defendant is mentally competent, the court may nevertheless order a determination by the court of the defendant’s mental competence.
(c)Except as provided in Section 1368.1, when an inquiry into the present mental competence of the defendant has been commenced by the court all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been
determined.
If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call.
If the defendant is declared mentally incompetent, the jury shall be discharged.
Notes of Decisions
Cited in
204
cases (
54 in the last 5 years), 1951–2026 · leading case:
People v. Kelly, 146 P.3d 547 (Cal. 2006).
People v. Kelly, 146 P.3d 547 (Cal. 2006).
· cites it 2× “(Pen.Code, § 1368.) On December 3, 2003, the court found defendant competent to stand trial.”
People v. Flinner, 476 P.3d 240 (Cal. 2020).
· cites it 2× “Competence to Stand Trial Flinner contends the court erred, after the guilt verdicts were returned, in declining to suspend trial proceedings under Penal Code section 1368 in order to determine his competence to stand trial.”
People v. Rodas, 429 P.3d 1122 (Cal. 2018).
· cites it 2× “) Penal Code section 1368 requires that criminal proceedings be suspended and competency proceedings be commenced if "a doubt arises in the mind of the judge" regarding the defendant's competence ( id.”
Medina v. California, 505 U.S. 437 (1992).
· cites it 2× “Before trial, petitioner's counsel moved for a competency hearing under Cal. Penal Code Ann. § 1368 (West 1982), on the ground that he was unsure whether petitioner had the ability to participate in the criminal proceedings against him.”
People v. Barrett, 281 P.3d 753 (Cal. 2012).
· cites it 2× “More accurately, the Legislature contemplates that, in the underlying criminal case, the trial court has entertained a ―doubt‖ on competence (Pen. Code, § 1368, subd. (a)) and/or counsel has expressed a similar ―belie[f].”
People v. Robles, 466 P.2d 710 (Cal. 1970).
· cites it 4× “After the psychiatrists filed reports that Robles was at both times sane, the court declared a doubt as to Robles' sanity (Pen. Code, § 1368), and the question of Robles' sanity was tried to a jury, which found that Robles was able to understand the nature of the charges against…”
People v. Wycoff, 493 P.3d 789 (Cal. 2021).
· cites it 2× “) [¶] Penal Code section 1368 requires that criminal proceedings be suspended and competency proceedings be commenced if ‘a doubt arises in the mind of the judge’ regarding 9 Of course, a defendant who is competent to waive counsel does not necessarily do so knowingly,…”
Delaney Marks v. Ronald Davis, 106 F.4th 941 (9th Cir. 2024).
· cites it 4× “” 3 The trial 3 At the time, California Penal Code section 1368 stated: (a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he shall state that doubt in the record and inquire of…”
People v. Stankewitz, 793 P.2d 23 (Cal. 1990).
· cites it 2× “" (Pen. Code, § 1368, subd. (a).) That doubt arose not from evidence introduced by defendant, but merely from representations made by his counsel.”
People v. Buenrostro, 430 P.3d 1179 (Cal. 2018).
“" Penal Code section 1368 ( section 1368 ) provides in relevant part: "(a) If, during the pendency of an action and prior to judgment .”
People v. Chadd, 621 P.2d 837 (Cal. 1981).
· cites it 2× “(Pen. Code, § 1368.) The proceedings resumed after defendant was found mentally competent.”
Moore v. Superior Court, 237 P.3d 530 (Cal. 2010).
· cites it 2× “For instance, as is true of criminal trials, the question of competency in SVPA proceedings would not be raised by the defendant but by the court or the defendant's attorney.”
Cal. Penal Code § 1368(a): 2 cases
Cal. Penal Code § 1368(c): 2 cases
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