Ary

In People v. Ary (2004) 118 Cal.App.4th 1016 [ 13 Cal.Rptr.3d 482 ] ( Ary ), we determined that defendant was denied his due process right to a fair trial under Pate v. Robinson (1966) 383 U.S. 375 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ] ( Pate ) and People v. Pennington (1967) 66 Cal.2d 508 [ 58 Cal.Rptr. 374 , 426 P.2d 942 ], because the trial court did not, on its own motion, order a hearing under Penal Code section 1368 [1] to examine defendant's competency to stand trial despite substantial evidence that, due to his mental retardation, he was incapable of understanding the nature of the proceedings against him and of assisting in his defense. ( Ary, at pp. 1020-1021.) Considering the "highly unusual nature of this case"—due to the current availability of medical evidence of appellant's mental state at the time of trial produced during an inquiry into the voluntariness of his confession—we concluded that this may be the "rare case" in which a meaningful competency determination may be conducted retrospectively ( id. at pp. 1028-1029), and remanded the matter to the trial court to consider whether such a hearing could be conducted ( id. at pp. 1029-1030). The trial…