Competency Evaluations, California Penal Code 1368
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What is a competency evaluation under California Penal Code 1368?
A PC 1368 competency evaluation, also known as a competency to stand trial evaluation or fitness to proceed evaluation in California, is a forensic psychological assessment used to determine whether a criminal defendant has the present mental capacity to participate in criminal proceedings.
Under California Penal Code 1368, if there is doubt about a defendant’s competence—typically declared by defense counsel or the judge—criminal proceedings are suspended. The court then orders a forensic competency evaluation conducted by a psychologist or psychiatrist.
The evaluator determines whether the defendant meets the legal standard for competency under the Dusky standard, which is used in California competency to stand trial cases.
The Dusky standard includes two core prongs:
The ability to rationally assist defense counsel
A factual and rational understanding of the legal proceedings
In California, a defendant may be found incompetent to stand trial if there are significant deficits in either prong of competency.
What do the prongs of competency mean?
The two prongs of the competency to stand trial standard (PC 1368) assess different but related functional abilities.
Rational ability to assist counsel refers to whether the defendant can meaningfully engage with their attorney. This includes their ability to communicate effectively, consider legal advice, and participate in decision-making related to their defense.
This prong may involve evaluating:
The defendant’s perception of defense counsel
Openness to legal guidance and recommendations
Problem-solving ability during disagreements
Capacity to collaborate in defense strategy
Factual understanding refers to the defendant’s basic knowledge of courtroom proceedings and legal concepts. This includes understanding:
The roles of courtroom participants (judge, prosecutor, defense attorney)
The nature of the criminal charges
The basic structure of legal proceedings
Rational understanding focuses on whether the defendant can apply that information in a meaningful and self-directed way, including:
Appreciation of their legal situation
Ability to make reasoned decisions in their own interest
Appropriate courtroom behavior and awareness of consequences
The importance of present mental state in a PC 1368 evaluation
A key principle in any California competency to stand trial evaluation is that competency is a present-time functional assessment, not a historical diagnosis.
A defendant’s presentation can vary significantly depending on context. For example, someone may appear disorganized or impaired at one moment and more organized at another due to factors such as intoxication, acute psychiatric symptoms, stress, or medication effects while in custody.
Although psychiatric history is considered, a PC 1368 forensic evaluation focuses on current functioning and current impairment in the Dusky competency domains.
An analogy often used is that risk factors for a condition are not the same as the active condition itself. Similarly, the presence of mental illness alone does not establish incompetence. Instead, the question is whether symptoms are severe enough to significantly impair the defendant’s ability to understand proceedings or assist counsel.
How is a competency evaluation conducted in California?
A forensic competency evaluation under PC 1368 typically includes multiple sources of information to ensure a comprehensive assessment.
Common components include:
Review of psychiatric and medical records
Review of police reports and legal documents
Collateral interviews when appropriate
A structured clinical interview with the defendant
Psychological testing when indicated
The evaluator then prepares a forensic competency report for the court, addressing whether the defendant meets criteria for competency to stand trial under California law.
The role of remediation in competency to stand trial cases
An important part of the PC 1368 competency process is remediation, or the ability to restore understanding and functioning.
In addition to assessing current knowledge, evaluators also consider:
Ability to learn new legal information
Capacity to retain courtroom concepts
Ability to apply information over time
This is especially important in borderline cases where individuals may be near the threshold between competency and incompetency.
Use of psychological testing in competency evaluations
In some forensic competency to stand trial evaluations, psychological testing is used to supplement clinical findings.
Testing can help assess:
Cognitive functioning
Attention and memory
Emotional functioning
Personality traits
Response style and symptom validity (including effort and impression management)
Testing does not determine the final opinion on competency. Instead, it provides additional data points that inform the overall forensic opinion in a PC 1368 evaluation.
Forensic conclusions are based on integration of multiple data sources, especially when information is inconsistent or contradictory.
What happens if the parties do not stipulate to competency findings?
After a PC 1368 competency report is submitted, the court may proceed in different ways depending on whether both sides agree.
If both parties stipulate, the court may adopt the findings. If there is disagreement, a competency hearing (often referred to as a competency trial) may occur, where the judge evaluates the evidence and makes a determination regarding competency to stand trial.
In some cases, a second forensic evaluation may also be ordered.
What happens if a defendant is found incompetent under PC 1368?
If a defendant is found incompetent to stand trial in California, criminal proceedings are paused and the individual is typically referred for competency restoration treatment.
In felony cases, individuals are often committed to a state hospital system such as the California Department of State Hospitals. In misdemeanor cases, restoration may occur through county-based programs.
What is competency restoration?
Competency restoration in California is a structured treatment process designed to help individuals regain the ability to understand court proceedings and assist counsel.
Restoration may include:
Psychoeducation about the legal system
Psychiatric treatment and medication management
Individual or group therapy
Skills-based remediation interventions
The length of restoration varies depending on symptom severity, treatment response, and individual functioning.
While many individuals are restored to competency, there are cases where a person is deemed non-restorable, which may lead to dismissal of charges or civil commitment proceedings depending on legal criteria and case type.
Dr. Chan is a forensic psychologist from San Francisco who provides forensic evaluations and expert witness testimony on forensic psychological matters such as competency. Want to discuss a case? Please email, call, or complete the contact form. For details about services offered, please visit Services.
