retrospective competency hearing in California

2022Conversely, the People rely on People v. Ary (2004) 118 Cal.App.4th 1016 (Ary) in urging that we not reverse the judgment but instead remand to the trial court for a determination “whether a retrospective competency hearing is feasible.” 15 In addressing this topic, Rodas indicates that historically the remedy for error such as occurred here has been automatic reversal. ( Rodas, supra, 6 Cal.5th at pp. 238–239.) But as Rodas essentially observed (id. at pp. 238– 239), cases such as the Ary decision left open the possibility that in the rare case a meaningful retrospective competency determinat

2019Remanding the case to determine whether appellant was competent to stand trial (i.e., a retrospective competency hearing) is appropriate "in cases involving unusual circumstances where reliable evidence of the defendant's mental condition at the time of trial would be available at *849 the hearing. [Citations.]" ( Rodas , supra , 6 Cal.5th at p. 241 , citing People v. Ary (2004) 118 Cal.App.4th 1016 , 1028, 13 Cal.Rptr.3d 482 ( Ary I ); see Drope v. Missouri (1975) 420 U.S. 162 , 182-183, 95 S.Ct. 896 , 43 L.Ed.2d 103 [accepting possibility of constitutionally adequate postappeal evaluation of

2019Remanding the case to determine whether appellant was competent to stand trial (i.e., a retrospective competency hearing) is appropriate "in cases involving unusual circumstances where reliable evidence of the defendant's mental condition at the time of trial would be available at *849 the hearing. [Citations.]" ( Rodas , supra , 6 Cal.5th at p. 241 , citing People v. Ary (2004) 118 Cal.App.4th 1016 , 1028, 13 Cal.Rptr.3d 482 ( Ary I ); see Drope v. Missouri (1975) 420 U.S. 162 , 182-183, 95 S.Ct. 896 , 43 L.Ed.2d 103 [accepting possibility of constitutionally adequate postappeal evaluation of

2019Remanding the case to determine whether appellant was competent to stand trial (i.e., a retrospective competency hearing) is appropriate "in cases involving unusual circumstances where reliable evidence of the defendant's mental condition at the time of trial would be available at *849 the hearing. [Citations.]" ( Rodas , supra , 6 Cal.5th at p. 241 , citing People v. Ary (2004) 118 Cal.App.4th 1016 , 1028, 13 Cal.Rptr.3d 482 ( Ary I ); see Drope v. Missouri (1975) 420 U.S. 162 , 182-183, 95 S.Ct. 896 , 43 L.Ed.2d 103 [accepting possibility of constitutionally adequate postappeal evaluation of

2021(See Lightsey, supra, 54 Cal.4th at p. 710 [remanding for trial court to determine if retrospective competency hearing should be held]; Gonzales, supra, 34 Cal.App.5th at p. 1091 [same].) In holding that hearing: “[T]he focus of the feasibility determination must be on whether a retrospective competency hearing will provide defendant a fair opportunity to prove incompetence, not merely whether some evidence exists by which the trier of fact might reach a decision on the subject.

2021In making its feasibility determination, the court must consider the fairness of requiring defendant, who has already established a reversible . . . violation, to prove his incompetence to stand trial . . . with the . . . evidence of his prior mental condition still available to him today.” (Lightsey, supra, 54 Cal.4th at p. 710 ) “Because of the inherent difficulties in attempting to look back to the defendant’s past mental state [citation], the burden of persuasion will be on the People to convince the trial court by a preponderance of the evidence that a retrospective competency hearing is

2025(People v. Ary (2011) 51 Cal.4th 510, 513 .) A retrospective competency hearing was not only feasible in this case, but it occurred shortly after the competency restoration hearing, and with the benefit of additional and contemporaneous information about Medeiros’s competency from an appointed expert.

2021In Rodas, we said so explicitly: “The burden of proof in a retrospective hearing is on the defendant . . . .” (Rodas, supra, 6 Cal.5th at p. 240 .) Similarly, in Lightsey, we said that “a retrospective competency hearing [must] provide defendant a fair opportunity to prove incompetence.” (Lightsey, supra, 54 Cal.4th at p. 710 , italics omitted.) And in Ary, we said that “requiring a criminal defendant to prove at a retrospective mental competency hearing that he was incompetent when tried earlier does not ‘ “offend[] some principle of justice so rooted in the traditions and conscience of our p

2025Although the People suggest the proper remedy would be to remand the matter to the trial court for a retrospective competency hearing, such a remedy is not available in this case considering “the fluctuating nature of [Medeiros’s] symptoms, the passage of time, and the lack of contemporaneous expert evaluations.” (Rodas, supra, 6 Cal.5th at p. 240 ; see id. at p. 241 [“when courts have permitted retrospective hearings, they have generally done so in cases involving unusual circumstances where reliable evidence of the defendant’s mental condition at the time of trial would be available at the h

2024(See In re Arroyo (2019) 37 Cal.App.5th 727, 732 [“ ‘ “[a] case becomes moot when a court ruling can have no practical impact” ’ ”].) 22 Without deciding whether such a retrospective competency hearing was ever an appropriate remedy for Pate error, the high court concluded it was not available in the case before it because “ ‘the inherent difficulties of such a nunc pro tunc determination’ [citation] [could] not be overcome under the circumstances of the case.” (Rodas, supra, 6 Cal.5th at p. 239 .) The court explained “the critical question in determining whether a retrospective competency hea

2019We conditionally reverse the judgment of conviction and remand with directions to determine whether a retrospective competency hearing is feasible and, if so, to conduct a competency hearing. ( People v. Ary (2011) 51 Cal.4th 510 , 515, fn. 1, 120 Cal.Rptr.3d 431 , 246 P.3d 322 ( Ary ); *846 People v. Robinson (2007) 151 Cal.App.4th 606 , 619, 60 Cal.Rptr.3d 102 ( Robinson ).) Facts On the morning of July 8, 2014, the victim, Emeterio Gonzalez (Tio) hosted a World Cup soccer game party at his apartment with Tracy Siquiedo (Tracy), Phillip Williams (Phillip), and Tio's nephew, Mario Gonzalez (M

2019We conditionally reverse the judgment of conviction and remand with directions to determine whether a retrospective competency hearing is feasible and, if so, to conduct a competency hearing. ( People v. Ary (2011) 51 Cal.4th 510 , 515, fn. 1, 120 Cal.Rptr.3d 431 , 246 P.3d 322 ( Ary ); *846 People v. Robinson (2007) 151 Cal.App.4th 606 , 619, 60 Cal.Rptr.3d 102 ( Robinson ).) Facts On the morning of July 8, 2014, the victim, Emeterio Gonzalez (Tio) hosted a World Cup soccer game party at his apartment with Tracy Siquiedo (Tracy), Phillip Williams (Phillip), and Tio's nephew, Mario Gonzalez (M

2021(Dusky, supra, 362 U.S. at p. 403 .) And in Pate v. Robinson itself, the high court noted that at a retrospective competency hearing, “[t]he jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record.” (Pate v. Robinson, at p. 387.) The court added that the passage of time (six years in that case) “aggravates these difficulties” (ibid.), and it declined to permit a retrospective competency hearing.

2015(People v. Johnwell (2004) 121 Cal.App.4th 1267 , 1280–1281 [citing Pate, supra, 383 U.S. 375 , 386–387; Dusky, supra, 362 U.S. at p. 403 ; Stankewitz, at p. 94; People v. Superior Court (Marks) (1991) 1 Cal. 4th 56 , 70–71; and People v. Hale (1988) 44 Cal.3d 531, 541 ].) However, in recent years, our court and our sister courts have grappled further with the remedy for failure to hold a competency hearing, reaching different conclusions on whether such a due process violation may sometimes be cured through a retrospective competency hearing.

2018For this reason, courts have declined to permit a retrospective competency hearing after reversing a conviction because of the failure to hold such a hearing originally.' (See Pate v. Robinson (1966) 383 U.S. 375 , 387 [ 86 S.Ct. 836 , 15 L.Ed.2d 815 ] [noting 'the difficulty of retrospectively determining an accused's competence to stand trial'].) "The court in People v. Ary, supra, 118 Cal.App.4th at page 1029 [ 13 Cal.Rptr.3d 482 ], concluded, '[i]t is only because of the highly unusual nature of this case that we remand this matter to the trial court for a determination as to whether such

2018For this reason, courts have declined to permit a retrospective competency hearing after reversing a conviction because of the failure to hold such a hearing originally.' (See Pate v. Robinson (1966) 383 U.S. 375 , 387 [ 86 S.Ct. 836 , 15 L.Ed.2d 815 ] [noting 'the difficulty of retrospectively determining an accused's competence to stand trial'].) "The court in People v. Ary, supra, 118 Cal.App.4th at page 1029 [ 13 Cal.Rptr.3d 482 ], concluded, '[i]t is only because of the highly unusual nature of this case that we remand this matter to the trial court for a determination as to whether such

2019Disposition The judgment is conditionally reversed and remanded to the trial court with directions to decide whether a retrospective competency hearing should be held to determine whether appellant was competent to stand trial in January 2018. ( Ary , supra , 51 Cal.4th at p. 515, fn. 1 , 120 Cal.Rptr.3d 431 , 246 P.3d 322 ; People v. Lightsey (2012) 54 Cal.4th 668 , 710, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 .) "Because of the inherent difficulties in attempting to look back to [appellant's] past mental state [citation], the burden of persuasion will be on the People to convince the trial court

2019Disposition The judgment is conditionally reversed and remanded to the trial court with directions to decide whether a retrospective competency hearing should be held to determine whether appellant was competent to stand trial in January 2018. ( Ary , supra , 51 Cal.4th at p. 515, fn. 1 , 120 Cal.Rptr.3d 431 , 246 P.3d 322 ; People v. Lightsey (2012) 54 Cal.4th 668 , 710, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 .) "Because of the inherent difficulties in attempting to look back to [appellant's] past mental state [citation], the burden of persuasion will be on the People to convince the trial court

2011Rather, after considering supplemental briefing on whether the error could be "cured" ( ibid. ), the Court of Appeal followed the procedure set forth by the United States Court of Appeals for the Ninth Circuit in Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084 , by remanding the matter to the trial court for a retrospective competency hearing. ( Ary I, supra, at pp. 1025-1028.) On remand, the trial court was to decide whether such a hearing would be feasible. ( Id. at p. 1029.) Feasibility, the Court of Appeal explained, would depend on whether sufficient evidence remained to render a "`reasona

2011NOTES [1] After holding in its 2004 decision in Ary I, supra, 118 Cal.App.4th 1016 , that the trial court had violated defendant's federal constitutional right to due process by not assessing evidence of his mental competence to stand trial, the Court of Appeal remanded the case to the trial court for a retrospective competency hearing, without, however, reversing the judgment of conviction. ( Id. at p. 1030.) The correct procedure, as we held two years later, would have been to reverse the judgment of conviction. ( People v. Young (2005) 34 Cal.4th 1149, 1217 [ 24 Cal.Rptr.3d 112 , 105 P.3d 4

2012We conclude this error constitutes a reversible miscarriage of justice and the appropriate remedy at this time is to remand to the trial court to allow it to conduct a retrospective competency hearing, if feasible. i. Standards of mental competence The United States Supreme Court has “repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [ 134 L.Ed.2d 498 , 116 S.Ct. 1373 ].) A defendant is deemed incompetent to stand trial if he lacks “ ‘ “sufficient present ability to consult with his

2012We conclude this error constitutes a reversible miscarriage of justice and the appropriate remedy at this time is to remand to the trial court to allow it to conduct a retrospective competency hearing, if feasible. i. Standards of mental competence The United States Supreme Court has “repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [ 134 L.Ed.2d 498 , 116 S.Ct. 1373 ].) A defendant is deemed incompetent to stand trial if he lacks “ ‘ “sufficient present ability to consult with his

2012(See Baker v. State (1982) 250 Ga. 187 [ 297 S.E.2d 9, 14 ]; Tate v. State, supra, 896 P.2d at p. 1187 ; Lokos v. Capps (5th Cir. 1980) 625 F.2d 1258, 1268, fn. 5 .) We further observe that even if the trial court initially determines a retrospective competency hearing is feasible, the trial court may later revisit the issue of the fairness and reliability of the resulting hearing.

2009(See also stressing the significance of this burden, Tate, supra, 896 P.2d at pp. 1187-1188; Lokos v. Capps (5th Cir. 1980) 625 F.2d 1258, 1268, fn. 5 ; and Sanders, supra, 549 S.E.2d at p. 54.) But once the prosecution has met that substantial burden, I submit it is inappropriate to impose on it an additional burden, the burden of proof regarding the defendant's competency. *118 And to return to where I started, I submit that it is especially inappropriate for such a burden to be imposed by a judicially created, spanking-new due process rule, especially one that (1) has been rejected by every

2011Substantial evidence demonstrated a reasonable doubt as to defendant’s competence and the trial court erred in not conducting a hearing to determine his competence. 3 Although it was suggested at oral argument the proper remedy would be to remand the matter to the trial court for a retrospective competency hearing (see People v. Ary (2004) 118 Cal.App.4th 1016 [ 13 Cal.Rptr.3d 482 ]), our Supreme Court held in People v. Young, supra, 34 Cal.4th at page 1217 , that “[t]he correct procedure . . . [is] to reverse the judgment of conviction.” (People v. Ary (2011) 51 Cal.4th 510, 515, fn. 1 [ 120

2011NOTES [1] After holding in its 2004 decision in Ary I, supra, 118 Cal.App.4th 1016 , that the trial court had violated defendant's federal constitutional right to due process by not assessing evidence of his mental competence to stand trial, the Court of Appeal remanded the case to the trial court for a retrospective competency hearing, without, however, reversing the judgment of conviction. ( Id. at p. 1030.) The correct procedure, as we held two years later, would have been to reverse the judgment of conviction. ( People v. Young (2005) 34 Cal.4th 1149, 1217 [ 24 Cal.Rptr.3d 112 , 105 P.3d 4

2021(See Lightsey, supra, 54 Cal.4th at p. 710 [remanding for trial court to determine if retrospective competency hearing should be held]; Gonzales, supra, 34 Cal.App.5th at p. 1091 [same].) In holding that hearing: “[T]he focus of the feasibility determination must be on whether a retrospective competency hearing will provide defendant a fair opportunity to prove incompetence, not merely whether some evidence exists by which the trier of fact might reach a decision on the subject.

2021(See Lightsey, supra, 54 Cal.4th at p. 710 [remanding for trial court to determine if retrospective competency hearing should be held]; Gonzales, supra, 34 Cal.App.5th at p. 1091 [same].) In holding that hearing: “[T]he focus of the feasibility determination must be on whether a retrospective competency hearing will provide defendant a fair opportunity to prove incompetence, not merely whether some evidence exists by which the trier of fact might reach a decision on the subject.

2019(See, e.g., Cal. Rules of Court, rule 4.130, subd. (d)(2)(F); Medina v. California (1992) 505 U.S. 437, 450 [“defense counsel will often have the best-informed view of defendant’s ability to participate in his defense”]; People v. Lewis (2008) 43 Cal.4th 415, 525 [counsel’s declarations entitled to some weight, though not determinative], disapproved on another point in People v. Black (2014) 58 Cal.4th 912, 919-920 ; People v. Rogers (2006) 39 Cal.4th 826, 847 [defendant’s 9 demeanor, irrational behavior, and prior mental evaluations may be circumstantial evidence of incompetence].) Because th

2009The Attorney General argues that although it does not address the burden and standard of proof at a retrospective competency hearing, Medina, supra, 505 U.S. 437 , shows that placing the burden on the defendant to prove his incompetency at such a hearing is consistent with the requirements of due process.

2024(See In re Arroyo (2019) 37 Cal.App.5th 727, 732 [“ ‘ “[a] case becomes moot when a court ruling can have no practical impact” ’ ”].) 22 Without deciding whether such a retrospective competency hearing was ever an appropriate remedy for Pate error, the high court concluded it was not available in the case before it because “ ‘the inherent difficulties of such a nunc pro tunc determination’ [citation] [could] not be overcome under the circumstances of the case.” (Rodas, supra, 6 Cal.5th at p. 239 .) The court explained “the critical question in determining whether a retrospective competency hea

2022(Rodas, supra, 6 Cal.5th at p. 241 [no reliable contemporaneous evidence of the defendant’s mental condition at trial where the defendant was certified competent in May 2013 after being committed for 17 about a year, and his trial began in March 2014]; People v. Easter (2019) 34 Cal.App.5th 226, 249 [remand for a retrospective competency hearing not an appropriate remedy where expert evaluations were performed 13 months before defense raised doubt as to competency].) We therefore reverse the judgment of conviction.

2022(People v. Boyce (2014) 59 Cal.4th 672, 717, fn. 24 .) 16 passage of time, and the lack of contemporaneous expert evaluations.

2019(See, e.g., Cal. Rules of Court, rule 4.130, subd. (d)(2)(F); Medina v. California (1992) 505 U.S. 437, 450 [“defense counsel will often have the best-informed view of defendant’s ability to participate in his defense”]; People v. Lewis (2008) 43 Cal.4th 415, 525 [counsel’s declarations entitled to some weight, though not determinative], disapproved on another point in People v. Black (2014) 58 Cal.4th 912, 919-920 ; People v. Rogers (2006) 39 Cal.4th 826, 847 [defendant’s 9 demeanor, irrational behavior, and prior mental evaluations may be circumstantial evidence of incompetence].) Because th

2019(See, e.g., Cal. Rules of Court, rule 4.130, subd. (d)(2)(F); Medina v. California (1992) 505 U.S. 437, 450 [“defense counsel will often have the best-informed view of defendant’s ability to participate in his defense”]; People v. Lewis (2008) 43 Cal.4th 415, 525 [counsel’s declarations entitled to some weight, though not determinative], disapproved on another point in People v. Black (2014) 58 Cal.4th 912, 919-920 ; People v. Rogers (2006) 39 Cal.4th 826, 847 [defendant’s 9 demeanor, irrational behavior, and prior mental evaluations may be circumstantial evidence of incompetence].) Because th

2019(See, e.g., Cal. Rules of Court, rule 4.130, subd. (d)(2)(F); Medina v. California (1992) 505 U.S. 437, 450 [“defense counsel will often have the best-informed view of defendant’s ability to participate in his defense”]; People v. Lewis (2008) 43 Cal.4th 415, 525 [counsel’s declarations entitled to some weight, though not determinative], disapproved on another point in People v. Black (2014) 58 Cal.4th 912, 919-920 ; People v. Rogers (2006) 39 Cal.4th 826, 847 [defendant’s 9 demeanor, irrational behavior, and prior mental evaluations may be circumstantial evidence of incompetence].) Because th

2019(See, e.g., Cal. Rules of Court, rule 4.130, subd. (d)(2)(F); Medina v. California (1992) 505 U.S. 437, 450 [“defense counsel will often have the best-informed view of defendant’s ability to participate in his defense”]; People v. Lewis (2008) 43 Cal.4th 415, 525 [counsel’s declarations entitled to some weight, though not determinative], disapproved on another point in People v. Black (2014) 58 Cal.4th 912, 919-920 ; People v. Rogers (2006) 39 Cal.4th 826, 847 [defendant’s 9 demeanor, irrational behavior, and prior mental evaluations may be circumstantial evidence of incompetence].) Because th

2019We conclude the trial court did not abuse its discretion in making this determination. * See footnote, ante, page 1. 35 A court may hold a retrospective competency hearing if it concludes there is “sufficient evidence on which a ‘reasonable psychiatric judgment’ of defendant’s competence . . . can be reached.” (People v. Ary (2004) 118 Cal.App.4th 1016, 1029 ; accord, People v. Lightsey (2012) 54 Cal.4th 668, 707 [“if it remains possible to give defendant that to which he was entitled at trial—a fair and reliable opportunity to prove his incompetence with the assistance of counsel—a remand to

2019(Ary, at p. 1029.) In Shiga I, we directed the trial court to make its feasibility determination in light of “‘“‘“‘(1) [t]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with [the] defendant before and during trial.’”’”’” (Shiga I, supra, 6 Cal.App.5th at p. 50 , quoting People v. Lightsey, supra, 54 Cal.4th at p. 710 .) A

2015(People v. Johnwell (2004) 121 Cal.App.4th 1267 , 1280–1281 [citing Pate, supra, 383 U.S. 375 , 386–387; Dusky, supra, 362 U.S. at p. 403 ; Stankewitz, at p. 94; People v. Superior Court (Marks) (1991) 1 Cal. 4th 56 , 70–71; and People v. Hale (1988) 44 Cal.3d 531, 541 ].) However, in recent years, our court and our sister courts have grappled further with the remedy for failure to hold a competency hearing, reaching different conclusions on whether such a due process violation may sometimes be cured through a retrospective competency hearing.

2015(Compare Ary I, supra, 118 Cal.App.4th at pp. 1028–1029 [remanding for consideration whether retrospective competency hearing was feasible and, if so, holding such hearing] and People v. Kaplan (2007) 149 Cal.App.4th 372 , 387–389 [same] with People v. Johnwell, supra, 121 Cal.App.4th at p. 1280 [holding erroneous denial of a competency hearing that comported with due process required reversal and retrial and could not be cured by retrospective determination of defendant’s mental 52 competence during trial].) In People v. Ary (2011) 51 Cal.4th 510 (Ary II), our Supreme Court suggested, but did

2015If a fair and reliable retrospective competency hearing can be conducted, and at that hearing defendant fails to prove he was incompetent, the judgment will be reinstated." (Id. at pp. 709-710, fn. omitted.) "In assessing whether a retrospective competency hearing is feasible, the trial court should consider '"'"(1) [t]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non

2015If a fair and reliable retrospective competency hearing can be conducted, and at that hearing defendant fails to prove he was incompetent, the judgment will be reinstated." (Id. at pp. 709-710, fn. omitted.) "In assessing whether a retrospective competency hearing is feasible, the trial court should consider '"'"(1) [t]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non