Mixon

We hold that when a defendant challenges a certification that he has regained mental competence (Pen. Code, 1 § 1372, subd. (a)(1)) and demands a hearing (§ 1372, subd. (c)), the section 1369, subdivision (f) presumption (“It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent”) applies at that hearing.

Procedural and Factual Background

In May 1984 defendant was charged with attempted murder (§§ 664/187), forcible rape (2 counts, § 261, subd. (2)), forcible oral copulation (§ 288a, subd. (c)), kidnapping (§ 207), burglary (§ 459), and felony assault (2 counts, §§ 245, subd. (a)(1), 245, subd. (a)). A gun use enhancement (§ 12022.5) was alleged as to all counts except a felony assault. Great bodily injury (§ 12022.7) was alleged with respect to the attempted murder, kidnapping, and burglary counts. By amended information it was alleged defendant had been convicted of a 1972 rape in California, a 1977 rape and kidnapping in California, and a 1983 robbery in Mississippi.

In August 1985, the trial court found defendant presently incompetent (§§ 1367, 2 1368) and ordered…

I concur in parts 2 through 6 of the majority opinion.

*1490 However, I find I must respectfully dissent from part 1 in which the majority holds the presumption a defendant is mentally competent to stand trial should apply at a hearing on the restoration of competency of a defendant the court has previously adjudicated incompetent to stand trial. In my view, once a defendant has been judicially determined to be incompetent to stand trial the People bear the burden of proving the defendant has been restored to competency.

In California, a person cannot be tried while mentally incompetent. (Pen. Code, § 1367.) 1 As defined by section 1367, a defendant is mentally incompetent “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” When, during the pendency of a criminal proceeding, doubt arises in the mind of the court as to the defendant’s mental competence the court must suspend criminal proceedings and order a competency hearing. (§ 1368.) Section 1369, subdivision (a) provides that for purposes of such a competency hearing…

John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, John R. Gorey and Ivy E. Kessel, Deputy Attorneys General, for Plantiff and Respondent.

OPINION

WOODS (Fred), J.

We hold that when a defendant challenges a certification that he has regained mental competence (Pen. Code, [1] § 1372, subd. (a)(1)) and demands a hearing (§ 1372, subd. (c)), the section 1369, subdivision (f) presumption ("It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent") applies at that hearing.

In May 1984 defendant was charged with attempted murder (§§ 664/187), forcible rape (2 counts, § 261, subd. (2)), forcible oral copulation (§ 288a, subd. (c)), kidnapping (§ 207), burglary (§ 459), and felony assault (2 counts, §§ 245, subd. (a)(1), 245, subd. (a)). A gun use enhancement (§ 12022.5) was alleged as to all counts except a felony assault. Great bodily injury (§ 12022.7) was alleged with respect to the attempted murder, kidnapping, and burglary counts. By amended information it was alleged defendant had been…