California Penal Code section 1370 sets out what happens after a felony defendant is found mentally incompetent to stand trial: the criminal case pauses, the court decides whether trying to restore competency is in the interests of justice, and the defendant is either routed into mental health diversion or committed for treatment under capped time limits, with defined exits if competency is or is not regained.1California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction The statute rests on the constitutional rule that trying someone who cannot understand the charges or help their lawyer violates the Sixth and Fourteenth Amendments.
Who the Statute Covers
Section 1370 applies to defendants charged with felonies, or alleged to have violated felony probation or mandatory supervision, whose incompetency stems from a mental health disorder. California sorts incompetent defendants into separate tracks depending on the charge and the disability. PC 1370.01 handles misdemeanor defendants, PC 1370.1 handles defendants whose incompetency stems from a developmental disability, and PC 1370.02 handles people on postrelease community supervision or parole.2California Legislative Information. California Code PEN 1367 – Incompetence of Defendant
The distinction shapes where the defendant can be sent. Since 2021, only felony defendants can be committed to a Department of State Hospitals facility for competency restoration.3Department of State Hospitals. Incompetent to Stand Trial (IST) Process Misdemeanor defendants found incompetent follow the separate process under PC 1370.01.
What Incompetent to Stand Trial Means
The definition sits in Penal Code 1367, not 1370. A defendant is incompetent if, because of a mental health disorder or developmental disability, they cannot understand the nature of the criminal proceedings, or cannot help their attorney prepare a defense in a rational manner.2California Legislative Information. California Code PEN 1367 – Incompetence of Defendant These are two separate requirements, and failing either one is enough.
Understanding the proceedings means more than knowing you are in a courtroom. The defendant has to grasp the roles of the judge, prosecutor, and defense attorney, comprehend the charges, and appreciate what a conviction could mean. Someone who can recite these facts but applies them in a delusional way, believing for instance that the judge is controlled by an outside force, may still fail this prong.
The ability to assist counsel is where evaluations most often get contested. A defendant who cannot communicate relevant facts about the case, cannot make reasoned decisions about plea offers, or cannot sit through a hearing without becoming disorganized by psychiatric symptoms meets this standard. The focus is present mental functioning, not the defendant’s mental state when the alleged crime happened.
How the Competency Question Is Raised
Under Penal Code 1368, the process begins when a judge develops doubt about the defendant’s mental competence. The judge places that doubt on the record and asks defense counsel for their opinion. If defense counsel agrees the defendant may be incompetent, the court orders a formal determination. If defense counsel disagrees, the judge can still order the evaluation on their own.4California Legislative Information. California Code PEN 1368 – Inquiry Into Competence of Defendant
Once the inquiry opens, all criminal proceedings stop. The trial, hearing, or sentencing cannot move forward until the competency question is resolved.4California Legislative Information. California Code PEN 1368 – Inquiry Into Competence of Defendant
The Evaluation
Penal Code 1369 governs the evaluation itself. The court appoints at least one licensed psychologist or psychiatrist. If the defense says it is not seeking an incompetency finding, either side can request two evaluators, one chosen by the defense and one by the prosecution.5California Legislative Information. California Code PEN 1369 – Appointment of Experts When a developmental disability is suspected, the court also brings in a regional center director.
Evaluators conduct clinical interviews, review psychiatric and medical records, and assess how the defendant’s symptoms affect functioning in a courtroom setting. Their reports address the two-prong test from PC 1367, whether treatment is likely to restore competency, and whether psychiatric medication is necessary.
Diversion Before Commitment
Before a felony defendant can be committed for restoration, the court now has to decide whether pursuing restoration is “in the interests of justice.”1California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction That decision weighs the seriousness of the offense, harm to the victim, the defendant’s mental health and criminal history, whether incarceration is likely on conviction, and whether the defendant has been found incompetent before.
If the court decides restoration is not in the interests of justice, it holds a hearing under Penal Code 1001.36 to decide whether the defendant qualifies for mental health diversion. An eligible defendant enters diversion for the shorter of two years or the maximum sentence for the most serious charge.1California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction Complete diversion successfully and the charges are dismissed. The diversion hearing has to happen within 30 days of the incompetency finding; if it takes longer, the defendant is released on their own recognizance while waiting.
Diversion is not available for everyone. Defendants charged with murder, voluntary manslaughter, rape, certain sex offenses involving children, or use of weapons of mass destruction are excluded under PC 1001.36(d).1California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction If a defendant is found ineligible or unsuitable, or if diversion is terminated unsuccessfully, the court can order a modified treatment plan, refer the defendant to assisted outpatient treatment, initiate conservatorship proceedings, refer the defendant to a CARE court program, or reinstate competency restoration proceedings.
Where Restoration Happens
When the court decides restoration is in the interests of justice, it commits the defendant to treatment. Placement depends on the charges, the clinical picture, and available capacity. California uses several settings.
- State hospitals operated by the Department of State Hospitals provide the most intensive inpatient treatment, combining psychiatric medication, therapy, and education about court procedures. Only felony defendants can be committed to state hospitals.3Department of State Hospitals. Incompetent to Stand Trial (IST) Process
- Jail-based competency treatment programs are administered by DSH inside county jails, delivering restoration services without transfer to a state hospital and helping shorten wait times for state hospital beds.3Department of State Hospitals. Incompetent to Stand Trial (IST) Process
- Community-based restoration allows treatment in a supervised community setting for defendants who do not pose a significant safety risk. Courts may also use Conditional Release Programs (CONREP) as a less restrictive alternative.
The court relies on recommendations from the county mental health director and DSH evaluations to decide which setting fits. Wait times for state hospital placement remain a persistent problem, and defendants sometimes spend months in county jail before a bed opens.
Involuntary Medication
Whether the state can force psychiatric medication to restore competency has its own framework. The U.S. Supreme Court set the test in Sell v. United States (2003): the government must have an important interest in prosecuting the case, the medication must be substantially likely to restore competency without side effects that would undermine the defense, no less intrusive alternative can be likely to achieve the same result, and the specific medication must be medically appropriate for the patient.6Justia. Sell v. United States, 539 U.S. 166 (2003) All four prongs must be met. Courts often find the test satisfied for serious violent felonies; the analysis is harder for lower-level offenses where the government’s interest in prosecution is weaker.
Progress Reports and Return to Court
The facility does not have unlimited discretion. Within 90 days of commitment, the medical director must submit a written progress report to the court covering movement toward competency and whether antipsychotic medication remains necessary.7California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction If the defendant has not recovered, further reports follow every six months.
If a report indicates no substantial likelihood of restoration in the foreseeable future, the defendant must be transferred back to the committing county without delay. The court then holds proceedings on next steps, which may include diversion, conservatorship, or dismissal.
When the facility determines the defendant has regained competency, it files a certificate of restoration with the court under Penal Code 1372. The defendant must be returned to the committing court within 10 days of that filing.8California Legislative Information. California Code PEN 1372 – Certificate of Restoration The court holds a hearing to review the evidence. If it accepts the certificate, the criminal case resumes where it paused, and the court decides whether to release the defendant on bail or on their own recognizance pending trial.
The defense, jail staff, or DSH itself can also flag improvement at any point during commitment. If there is substantial evidence that symptoms have improved enough to create doubt about continued incompetence, the court can appoint an evaluator, and if that evaluator concludes the defendant is now competent, the court proceeds as if a restoration certificate had been filed.7California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction
Maximum Length of Commitment
California caps the total time a felony defendant can be confined for restoration. Under PC 1370(c)(1), commitment cannot exceed two years or the maximum prison term for the most serious charged offense, whichever is shorter.7California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction For a probation or mandatory supervision violation, the cap is the maximum imprisonment for the violation. The limit counts the total of all previous commitments in the same case, so the state cannot reset the clock by recommitting.
No later than 90 days before the commitment term expires, a defendant who has not recovered must be returned to the committing court and transferred to county custody.7California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction The court cannot simply return them to DSH under the same commitment. This ceiling reflects the constitutional floor set in Jackson v. Indiana (1972), which prohibits states from indefinitely confining someone solely because they are incompetent to stand trial.
When Competency Cannot Be Restored
Not everyone regains competency. The path forward depends on the charges and whether the defendant poses a continuing danger.
Dismissal of Charges
Charges against an unrestorable defendant remain subject to dismissal under Penal Code 1385, with two exceptions: mandatory supervision violations, and cases where a Murphy Conservatorship has been established.7California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction If charges are dismissed, the defendant must be released from the 1370 commitment. Dismissal does not prevent the state from starting civil commitment under the Lanterman-Petris-Short Act if the defendant meets the criteria for an involuntary psychiatric hold.
Murphy Conservatorship
For defendants who cannot be restored and who represent a substantial physical danger to others, the state may pursue a Murphy Conservatorship under Welfare and Institutions Code 5008(h)(1)(B). All of the following must be true: the defendant was found incompetent under PC 1370, the pending felony involves death, great bodily harm, or a serious threat to another person’s physical well-being, probable cause has been established on the charges, and the defendant remains dangerous because of their mental condition.9California Legislative Information. California Welfare and Institutions Code WIC 5008 – Definitions A Murphy Conservatorship lets the state maintain custody and provide treatment beyond the criminal commitment ceiling, through a civil proceeding with its own due process requirements.
Other Referrals
For defendants who do not qualify for a Murphy Conservatorship, the court can refer the defendant to assisted outpatient treatment, initiate standard conservatorship proceedings through the county conservatorship investigator, or refer the defendant to a CARE court program.1California Legislative Information. California Code PEN 1370 – Inquiry Into Competence of Defendant Before Trial or After Conviction The aim is that even when criminal prosecution is no longer viable, the person leaves the system with a treatment plan in place.