The phrase sounds like a verdict. It is not. It is a finding that the case cannot go forward yet, and it starts a separate process with its own clocks, its own hearings, and — for many families — a better set of exits than a trial would have offered.
The short answer: the criminal case is paused, not decided. "A person shall not be tried or adjudged to punishment or have their probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent" — meaning that "as a result of a mental health 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."¹ Once the finding is made, the court's first question, for most charges, is whether restoring competence "is in the interests of justice" at all; if not, the court holds a mental health diversion hearing "no later than 30 days after the finding of incompetence," and diversion, if granted and completed satisfactorily, ends in dismissal.² If restoration is ordered, your relative is delivered to a state hospital, another treatment facility, or a community program, or placed on outpatient status, with a written progress report to the court within 90 days and every six months after.² ³ There is a ceiling: two years from commitment, or the maximum sentence for the most serious charge, "whichever is shorter" — and the court "shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment."⁴ At the end, the routes are a certificate of restoration and a return to court, a referral for conservatorship if the person is gravely disabled, or dismissal.⁴ ⁵ For a misdemeanour there is no commitment at all: diversion is capped at one year, and the other options are CARE, assisted outpatient treatment, a conservatorship referral, or dismissal — never a state hospital.⁶
How the finding is made
It starts with a doubt. "If, during the pendency of an action and prior to judgment… a doubt arises in the mind of the judge as to the mental competence of the defendant, the judge shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent."⁷ If counsel says the defendant "is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined…"⁷ Once the court begins that inquiry, and with the exceptions in section 1368.1, "all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined."⁷
The court "shall appoint at least one licensed psychologist or psychiatrist to examine the defendant's mental condition," and, if the defence is not seeking a finding and asks for it, two — one named by each side.⁸ At the hearing, "the defendant shall be presumed competent to stand trial unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent."⁸ It is decided by a jury unless the defence waives one and the prosecution consents (or in the further situation the section describes); a jury verdict "shall be unanimous."⁸
The first fork: is restoration even the right road?
For a defendant not charged with one of the offences excluded from diversion, the statute now makes the court stop before ordering treatment-to-restore. It must "determine whether restoring the person to mental competence is in the interests of justice," considering "the relevant circumstances of the charged offense, including the harm done to the victim, the defendant's mental health condition, including, without limitation, any intellectual or developmental disability, the history of treatment, the criminal history of the defendant, whether the defendant is likely to face incarceration if convicted, whether the defendant has previously been found incompetent to stand trial, whether restoring the person to mental competence will enhance public safety, and any other relevant considerations."² Both sides get to be heard on it.²
If restoration is not in the interests of justice, "the court shall conduct a hearing, pursuant to Section 1001.36, and, if the court deems the defendant eligible, grant diversion pursuant to that section for a period not to exceed two years from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the complaint, whichever is shorter."² That hearing "shall be held no later than 30 days after the finding of incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing."² And the end of the road is written in: "If the defendant performs satisfactorily on diversion… at the end of the period of diversion, the court shall dismiss the criminal charges that were the subject of the criminal proceedings at the time of the initial diversion."² Mental health diversion in California →
If diversion is refused, the statute lists the court's remaining options, which include a hearing on assisted outpatient treatment within 45 days, a referral to the conservatorship investigator, a referral to the CARE program, or reinstating competency proceedings with credit for time spent in diversion.²
If restoration is ordered
"The court shall order that the mentally incompetent defendant be delivered by the sheriff to a State Department of State Hospitals facility… or to any other available public or private treatment facility, including a community-based residential treatment system approved by the community program director, or their designee, that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600."³ On the wait for a state hospital bed, the statute says this much: the department must tell the sheriff when a placement becomes available, and if it has "made reasonable attempts for 90 days" without the defendant being transported, it must tell the court and sheriff in writing.³
Medication. The court decides at the outset "whether the defendant lacks the capacity to make decisions regarding the administration of antipsychotic medication."³ Outside an emergency, a court order for involuntary medication requires one of three findings: that the defendant lacks that capacity, needs the medication, and without it "it is probable that serious harm to the physical or mental health of the defendant will result"; that the defendant "is a danger to others," as the statute defines it, "as a result of mental disorder or mental defect"; or, for "a serious crime against the person or property," that medication "is substantially likely to render the defendant competent to stand trial," is unlikely to interfere with the defence, and is "medically necessary and appropriate," with less intrusive treatments "unlikely to have substantially the same results."³ Can they medicate me against my will? →
The reports. "Within 90 days after a commitment… the medical director… shall make a written report to the court… concerning the defendant's progress toward recovery of mental competence and whether the administration of antipsychotic medication remains necessary."⁹ Then "at six-month intervals or until the defendant becomes mentally competent."⁹ Two sentences in that provision decide what happens next. If the report "discloses a substantial likelihood that the defendant will attain mental competence in the foreseeable future, the defendant shall remain" in treatment.⁹ But "if the report indicates that there is no substantial likelihood that the defendant will attain mental competence in the foreseeable future, custody of the defendant shall be transferred without delay to the committing county and shall remain with the county until further order of the court."⁹ And if the court determines that "treatment for the defendant's mental impairment is not being conducted, the defendant shall be returned to the committing court…"⁹
The ceiling
"At the end of two years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged… whichever is shorter, but no later than 90 days prior to the expiration of the defendant's term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court…"⁴ Then: "The court shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment," and "The maximum term of commitment applies to the aggregate of all previous commitments."⁴ The commitment paperwork must include "a computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of commitment."⁴
If the prosecution dismisses and refiles to reset the clock, the statute answers that too: the court "shall presume that the defendant is incompetent unless the court is presented with relevant and credible evidence that the defendant is competent," and "shall not order the defendant returned to the custody of the State Department of State Hospitals for the purpose of restoration of competency."⁴
The exits
Restored. If the treating director "determines that the defendant has regained mental competence, the director or designee shall immediately certify that fact to the court by filing a certificate of restoration…," and "in all cases, the patient shall be returned to the committing court no later than 10 days following the filing of a certificate of restoration."¹⁰ If the court approves the certificate — it may reject one only on a written evaluation by a psychologist or psychiatrist that the defendant is not competent — the criminal case resumes where it paused.¹⁰
Gravely disabled: conservatorship. When a defendant is returned to court unrestored "and it appears to the court that the defendant is gravely disabled," the court "shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings," heard in the superior court of the committing county.⁵ CARE Court and conservatorship: what each can and cannot do →
Dismissal. Throughout, with limited exceptions, "the criminal action remains subject to dismissal pursuant to Section 1385," and "if the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of proceedings that may be appropriate under the Lanterman-Petris-Short Act."⁵ Release from a criminal commitment can be followed by a civil hold if the criteria for one exist. What is a 5150 hold? →
Misdemeanours: a shorter, different track
For a misdemeanour, the court holds a hearing "no later than 30 days after the finding of incompetence" on diversion "for a period not to exceed one year from the date the individual is accepted into diversion or the maximum term of imprisonment provided by law for the most serious offense charged in the misdemeanor complaint, whichever is shorter," with dismissal at the end of satisfactory diversion.⁶ If the person is ineligible, the options are a modified treatment plan, assisted outpatient treatment, a conservatorship referral where the person "appears to be gravely disabled," a CARE referral, or — "if the defendant does not qualify for services" under those — "dismiss the charges."⁶ The Legislature's stated intent: "that a defendant subject to the terms of this section receive mental health treatment in a treatment facility and not a jail," with four days of credit "for every two days spent in actual custody."⁶ A state hospital is not among the options.⁶
What a family can do
- Get the name of the public defender or appointed counsel and ask which fork the court is at: interests-of-justice, diversion, or restoration. The 30-day and 90-day clocks above are the questions to ask by number.
- Bring treatment history to counsel. The interests-of-justice factors include "the history of treatment," and diversion eligibility requires, among other things, evidence that "shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert."² ¹¹ Records shorten everything.
- Ask about credit. Time in diversion and time in custody count against the maximum term; the court must send the treatment facility a computation of the credit with the commitment paperwork.² ⁴
- Know the exits. A conservatorship referral and a dismissal are outcomes the statute expects, not failures of the system.
Q&A
Q: Does "incompetent" mean my relative will be found not guilty? A: No. Competence is about the present ability to understand the proceedings and assist counsel;¹ it is a different question from insanity at the time of the offence, and it decides only whether the case can proceed now.
Q: Can they be held in a state hospital indefinitely? A: No. Two years from commitment or the maximum sentence, whichever is shorter, aggregated across commitments, and no return to the state hospital under the same commitment.⁴ Earlier if a report finds no substantial likelihood of restoration in the foreseeable future.⁹
Q: They have been in jail for months waiting for a bed. A: Ask counsel whether the department has given the 90-day written notice, and whether diversion or a community placement is available instead; if given information that the person may benefit from diversion, the court may find them an appropriate candidate at any time before transport.³
Q: Can a family member be the conservator? A: The referral goes to the county's conservatorship investigator; who is appointed is decided in the conservatorship proceeding, in the superior court of the committing county.⁵
Our therapist directory: See its current status →
Care in the jail meanwhile: Can my relative get psychiatric care in county jail? →
Sources
- Cal. Penal Code §1367(a) — "A person shall not be tried or adjudged to punishment or have their probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of a mental health 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" — california.public.law.
- Cal. Penal Code §1370(a)(1)(B) — (i)(I) "Determine whether restoring the person to mental competence is in the interests of justice"; (i)(II) the factors as quoted and the opportunity to be heard; (iii) the diversion hearing and the "two years… whichever is shorter" period; (iii)(I) "The hearing shall be held no later than 30 days after the finding of incompetence. If the hearing is delayed beyond 30 days, the court shall order the defendant to be released on their own recognizance pending the hearing"; (iii)(II) dismissal after satisfactory diversion; (iii)(III) the options where diversion is refused, including a hearing on assisted outpatient treatment "within 45 days after the finding of incompetence," conservatorship referral, CARE referral, and reinstating competency proceedings with credit for "any time spent in mental health diversion against the maximum term of commitment" — california.public.law.
- Cal. Penal Code §1370(a)(1)(C)(i) — the delivery order as quoted; (a)(1)(C)(ii)(I) — the department's duty to inform the sheriff of an available placement and, after "reasonable attempts for 90 days," to inform the court and sheriff in writing; (a)(1)(C)(v)(I) — the court "may make a finding that the defendant is an appropriate candidate for diversion" at any time before transport; (a)(2)(B) — the capacity determination and the three grounds at (a)(2)(B)(i)(I)–(III) as quoted; (a)(2)(B)(iv) — emergency medication under W&I §5008(m).
- Cal. Penal Code §1370(c)(1) — the maximum-commitment sentence as quoted, "The court shall not order the defendant returned to the custody of the State Department of State Hospitals under the same commitment," and "The maximum term of commitment applies to the aggregate of all previous commitments"; (a)(3)(A)(iii)(I) — the credit computation in the commitment packet; (c)(4) — the presumption of incompetence on dismissal and refiling, and no return to the state hospital "for the purpose of restoration of competency."
- Cal. Penal Code §1370(c)(3) — the conservatorship-investigator sentence as quoted; (d) — "the criminal action remains subject to dismissal pursuant to Section 1385"; (e) — "If the criminal action against the defendant is dismissed, the defendant shall be released from commitment ordered under this section, but without prejudice to the initiation of proceedings that may be appropriate under the Lanterman-Petris-Short Act."
- Cal. Penal Code §1370.01 — (b)(1)(A)(i) the misdemeanour diversion period "not to exceed one year… whichever is shorter"; (b)(1)(B) the 30-day hearing and release on own recognizance; (b)(1)(C) dismissal after satisfactory diversion; (c)(1)–(5) the options where diversion is refused, including (c)(3) conservatorship referral where the defendant "appears to be gravely disabled" and (c)(5) "If the defendant does not qualify for services pursuant to paragraphs (1) to (4), inclusive, dismiss the charges"; (d) the legislative intent "that a defendant subject to the terms of this section receive mental health treatment in a treatment facility and not a jail" and the credit of "four days… for every two days spent in actual custody" — california.public.law. The section's options do not include commitment to a state hospital.
- Cal. Penal Code §1368 — (a) the judge's duty to "state that doubt in the record" and inquire of counsel; (b) the order for a determination "pursuant to Section 1368.1 and 1369" where counsel believes the defendant "is or may be mentally incompetent"; (c) "Except as provided in Section 1368.1," once an inquiry has been commenced "all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined" — california.public.law.
- Cal. Penal Code §1369 — (a)(1) "The court shall suspend criminal proceedings and shall appoint at least one licensed psychologist or psychiatrist to examine the defendant's mental condition. If defense counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall, upon request of defense counsel, appoint two licensed psychologists or psychiatrists, one to be named by the defense and one to be named by the prosecution"; (c)(3) the presumption and the preponderance standard as quoted; (c)(4) jury, waiver and "The verdict of the jury shall be unanimous" — california.public.law.
- Cal. Penal Code §1370(b)(1) — the 90-day report, the six-month reports, the "substantial likelihood… shall remain" sentence and the "no substantial likelihood… transferred without delay to the committing county" sentence, as quoted; (b)(4) — return to court where treatment "is not being conducted."
- Cal. Penal Code §1372 — (a)(1) the certificate of restoration as quoted, filed "by certified mail, return receipt requested, or by confidential electronic transmission"; (c)(2) rejection of a certificate only "on a written report of an evaluation, conducted by a licensed psychologist or psychiatrist, that the defendant is not competent"; (d) approval; (a)(3)(C) "In all cases, the patient shall be returned to the committing court no later than 10 days following the filing of a certificate of restoration" — california.public.law.
- Cal. Penal Code §1001.36(b)(1) — a qualifying mental disorder, with evidence that "shall include a diagnosis or treatment for a diagnosed mental disorder within the last five years by a qualified mental health expert"; (b)(2) — the "significant factor" presumption — california.public.law.
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