Incompetent to Stand Trial in California: Hearing and Restoration

A defendant who is incompetent to stand trial in California cannot be prosecuted while the incompetency lasts. The criminal case is paused, the court orders a mental health evaluation, and if the defendant is found incompetent, the system shifts to treatment aimed at restoring their ability to understand the proceedings and work with their attorney. Under Penal Code 1367, incompetency means a mental health disorder or developmental disability prevents the defendant from grasping the nature of the proceedings or rationally assisting counsel.¹ What happens after that finding depends on the charges, the defendant’s condition, and whether treatment succeeds.

What Counts as Incompetent

California follows the standard the U.S. Supreme Court set in Dusky v. United States: the defendant must have a factual and rational understanding of the proceedings and be able to consult with counsel with a reasonable degree of rationality. In practical terms, evaluators check whether the defendant knows who the judge, prosecutor, and defense attorney are, understands what a guilty plea means, and can weigh the potential sentence.

A mental illness by itself does not make someone incompetent. A person living with schizophrenia or bipolar disorder may still understand the courtroom process and assist an attorney. The question is whether the specific symptoms interfere with participation, not whether a diagnosis exists.

Courts also draw a line between temporary and permanent impairment. Some defendants have psychotic episodes that respond to medication within weeks. Others have irreversible cognitive damage from brain injury or severe developmental disability. That difference drives whether the system attempts restoration or moves toward civil commitment or dismissal.

How the Case Gets Paused

Under Penal Code 1368, the judge, defense attorney, or prosecutor can raise doubt about the defendant’s competency. If defense counsel tells the court the defendant may be incompetent, the court must order a competency determination. Even when the defense believes the defendant is competent, the judge can order the inquiry independently.²

Once formal doubt is declared, the criminal case freezes. No trial, no plea negotiations, no sentencing moves forward until competency is resolved. The court appoints one or more mental health experts to evaluate the defendant, and several weeks typically pass before a hearing is scheduled.

The Mental Health Evaluation

Penal Code 1369 controls the evaluation. The court appoints at least one licensed psychiatrist or psychologist. If the defense is not seeking an incompetency finding, the court appoints two evaluators, one chosen by each side. When a developmental disability is suspected, the director of the regional center serving the defendant’s area is also brought in to assess eligibility for developmental services.³

Evaluators conduct clinical interviews, administer psychological tests, and review medical and legal history. Standardized tools such as the MacArthur Competence Assessment Tool-Criminal Adjudication help measure understanding, reasoning, and appreciation of the legal situation. Prior psychiatric hospitalizations and jail behavior get factored in.

Beyond the core question, the examiner must also address whether antipsychotic medication would be medically appropriate and likely to restore competency, whether the defendant has capacity to make medication decisions, and whether the defendant poses a danger.³ Those findings become important later if a medication dispute arises during restoration.

Each expert files a written report with findings, diagnosis, an opinion on competency, and, if the defendant is found incompetent, recommendations on treatment and the likelihood of restoration. The reports carry weight but do not bind the judge.

The Competency Hearing

California law presumes a defendant is competent. The party claiming incompetency, almost always the defense, must prove it by a preponderance of the evidence. The U.S. Supreme Court upheld this allocation in Medina v. California.⁴

The hearing looks like a bench trial focused on the defendant’s mental state. The defense goes first with its experts, the prosecution responds, and both sides can cross-examine. If neither side asks for a jury, the judge decides. Either side may request a jury on the competency question, and a jury verdict must be unanimous.³ One boundary to know: there is no right to a jury trial when the competency question arises from alleged violations of probation, mandatory supervision, postrelease community supervision, or parole.

If the court finds the defendant competent, the criminal case resumes. If the finding is incompetent, the case shifts to treatment.

What Happens After a Felony Incompetency Finding

When a felony defendant is found incompetent and the court decides restoration is in the interests of justice, the case is suspended and the defendant is ordered into treatment. Under Penal Code 1370, the court directs the sheriff to deliver the defendant to a Department of State Hospitals facility, another public or private treatment facility, or an outpatient program that can promote speedy restoration.⁵ Actual placements include state hospitals, jail-based competency treatment programs, and community residential facilities.⁶

Treatment usually combines antipsychotic medication, psychiatric counseling, and legal education about courtroom procedures. The treatment team reports progress to the court on a regular schedule. If clinicians conclude the defendant has regained competency, the court holds a restoration hearing, and if satisfied, resumes the criminal case.

How Long Restoration Can Last

Commitment for restoration is not open-ended. Under Penal Code 1370, a defendant who has not regained competency must be returned to the committing court at the end of two years from the date of commitment, or a period equal to the maximum prison sentence for the most serious charge, whichever is shorter.⁷ Someone charged with a felony carrying a 16-month maximum, for example, can be held for restoration for far less than two years.

These limits reflect the constitutional floor from Jackson v. Indiana, which held that a defendant committed solely because they are incompetent cannot be held longer than the reasonable period needed to determine whether they will attain capacity in the foreseeable future. If they will not, the state must either pursue civil commitment through the ordinary process or release the defendant.⁸

Misdemeanor Defendants

Since 2021, misdemeanor defendants found incompetent can no longer be committed to state hospitals. Assembly Bill 133 eliminated that pathway.⁶ Under Penal Code 1370.01, the court may order treatment at a county-approved facility, place the defendant on outpatient status, or find the defendant an appropriate candidate for mental health diversion under Penal Code 1001.36, which can lead to dismissal after successful completion.

If a misdemeanor defendant cannot be restored, the court may initiate conservatorship proceedings when the defendant appears gravely disabled. Otherwise, charges are typically dismissed.

Involuntary Medication

Defendants who refuse antipsychotic medication sit at the hardest edge of competency law. Penal Code 1370 permits involuntary medication in three situations:

The defendant lacks capacity to make medication decisions, the disorder requires antipsychotic treatment, and without it serious harm to the defendant’s physical or mental health is probable.
The defendant has inflicted, attempted, or seriously threatened substantial physical harm on another person while in custody or before being taken into custody, and continues to present a demonstrated danger due to a mental disorder.
The defendant faces serious criminal charges, and a psychiatrist has opined that medication is substantially likely to restore competency, unlikely to interfere with trial participation, and medically appropriate, with less intrusive alternatives unlikely to work.

That third ground tracks Sell v. United States, which held that involuntary medication solely for competency restoration is constitutional only when treatment is medically appropriate, unlikely to undermine trial fairness, necessary to further important government interests, and no less intrusive alternative exists.⁹ The Court cautioned that cases meeting all these criteria “may be rare.”⁷

Mental Health Diversion as an Alternative

Not every incompetent defendant has to go through the full restoration process. Penal Code 1001.36 created a pretrial mental health diversion program that redirects qualifying defendants into community-based treatment. For a defendant already found incompetent, the court can decide diversion serves the interests of justice better than commitment. This pathway has grown in importance as state hospital waitlists have grown.

Eligibility requires a diagnosed mental disorder in the current DSM (with a diagnosis or treatment in the last five years), a finding that the disorder was a significant factor in the offense, an expert opinion that symptoms would respond to treatment, the defendant’s agreement to comply with a treatment plan, and a finding that the defendant would not pose an unreasonable risk to public safety in the community. Felony diversion can run up to two years, misdemeanor diversion up to one. Successful completion ends in dismissal. Serious offenses such as murder, voluntary manslaughter, rape, kidnapping, carjacking, and human trafficking are excluded, as are defendants with two or more prior felony convictions or a prior strike.

When Competency Cannot Be Restored

If the treating facility reports no substantial likelihood the defendant will regain competency in the foreseeable future, the defendant must be returned to the committing court within ten days.⁷ What happens next depends on the charges and the defendant’s condition.

Murphy Conservatorship

When a defendant charged with a violent felony cannot be restored, the court may initiate a Murphy conservatorship. It applies when the pending charges involve death, great bodily harm, or a serious threat to another person’s physical well-being; probable cause has been found; the defendant remains incompetent due to a mental disorder; and the defendant represents a substantial danger of physical harm to others.¹⁰ It is a civil proceeding that appoints a conservator, authorizes placement in a treatment facility, and focuses on both psychiatric care and public safety. The criminal charges remain frozen while the conservatorship is in place.

Civil Commitment Under the LPS Act

For defendants who are gravely disabled but whose charges do not meet the Murphy threshold, the court orders the county conservatorship investigator to begin proceedings under the Lanterman-Petris-Short Act. That is the same civil commitment framework California uses for non-criminal mental health holds, and it requires a showing that the person cannot provide for their own food, clothing, or shelter due to a mental disorder.⁷ The U.S. Supreme Court held in O’Connor v. Donaldson that a state cannot confine a nondangerous person capable of surviving safely in freedom, so civil commitment requires genuine clinical justification.¹¹

Dismissal of Charges

Criminal charges remain subject to dismissal under Penal Code 1385 throughout the process, with limited exceptions for mandatory supervision violations and cases where a Murphy conservatorship has been established. If the criminal case is dismissed, the defendant is released from the commitment order. Dismissal does not block the state from starting separate civil commitment proceedings under the LPS Act.⁷ For less serious charges where the defendant poses no danger and restoration has failed, outright dismissal is the most common outcome.

The Waitlist Reality

The law on paper and the reality on the ground diverge. Many incompetent defendants wait in county jail for months before treatment begins. As of January 2026, roughly 275 people were on the waitlist for a Department of State Hospitals bed.¹²

A 2021 lawsuit, Stiavetti v. Clendenin, forced the state to set concrete deadlines. Under court-ordered benchmarks, the Department of State Hospitals must begin substantive restoration treatment within 28 days of taking responsibility for a patient found incompetent to stand trial. The requirement phased in from 60 days in March 2024 to the final 28-day standard by March 2025.¹²

The Legislature has also acted. The 2022 Budget Act imposed county-level caps on annual felony IST referrals, with penalty fees for counties that exceed the caps redirected to community-based interventions aimed at reducing future referrals. Proposition 36, passed by voters in November 2024, expanded the range of offenses that can be charged as felonies, which may push more defendants into this pipeline. The gap between the legal right to timely treatment and the practical availability of beds remains the most consequential feature of this system for defendants and their families.

1
California Legislative Information. California Code PEN 1367 – Inquiry Into the Competence of the Defendant
2
California Legislative Information. California Code PEN 1368 – Inquiry Into the Competence of the Defendant Before Trial or After Conviction
3
California Legislative Information. California Penal Code 1369
4
Justia U.S. Supreme Court Center. Medina v. California, 505 U.S. 437
5
California Legislative Information. California Code PEN 1370 – Inquiry Into the Competence of the Defendant
6
Department of State Hospitals. DSH IST 1370 Process
7
California Legislative Information. California Code Penal Code PEN 1370
8
Legal Information Institute. Jackson v. Indiana, 406 U.S. 715
9
Justia U.S. Supreme Court Center. Sell v. United States, 539 U.S. 166
10
California Legislative Information. California Welfare and Institutions Code 5008
11
Justia U.S. Supreme Court Center. O’Connor v. Donaldson, 422 U.S. 563
12
Department of State Hospitals. DSH 2026-27 Governor’s Budget Estimate