Supreme Court of California Justia
Citation 51 Cal. 4th 510, 246 P.3d 322, 120 Cal. Rptr. 3d 431

People v. Ary

Filed 2/3/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S173309
v.
Ct.App. 1/2 A113020
JAMES ARY, JR.,
Contra Costa County
Defendant and Appellant.
Super. Ct. No. 5-980575-5

A state that puts a mentally incompetent criminal defendant on trial violates the
due process clause of the federal Constitution‟s Fourteenth Amendment. This
constitutional provision also requires that, whenever the evidence raises a reasonable
doubt about a defendant‟s mental competence, a hearing be held in the trial court to
assess the defendant‟s mental state. Here, on defendant‟s appeal from a murder
conviction, the Court of Appeal held in its first opinion in these proceedings that the trial
court had erred in failing to evaluate evidence of defendant‟s mental competence before
proceeding with the trial. (See People v. Ary (2004) 118 Cal.App.4th 1016, 1018 (Ary
I).) The Court of Appeal then remanded the case to the trial court to decide whether the
error could be “cured” by a “retrospective” competency hearing. (Ibid.)
Thereafter, the trial court determined that evidence was still available regarding
defendant‟s mental condition when he was tried and it was therefore feasible to evaluate
retrospectively defendant‟s mental competence at that time. At the retrospective hearing,
1


the trial court placed on defendant the burden of proving, by a preponderance of the
evidence, that he was mentally incompetent when tried. This is the same showing that
our Penal Code requires of a defendant at a competency hearing held at the time of trial.
(Pen. Code, § 1369, subd. (f).) After the trial court‟s consideration of conflicting
testimony by defense and prosecution witnesses, it ruled that defendant had failed to
carry his evidentiary burden. On defendant‟s appeal, the Court of Appeal held, in a two-
to-one decision, that the trial court at the retrospective competency hearing had violated
defendant‟s federal due process rights by assigning to him the burden of proving that
when he was tried, he lacked mental competence. We agree with the dissenting Court of
Appeal justice that no such due process violation occurred.
I
Defendant was charged with capital murder for the 1997 killing of Ronnie Ortega
in Contra Costa County. Ortega was shot while seated in his car, which was stopped at a
traffic light. When arrested, defendant was advised of, and waived, his constitutional
rights under Miranda v. Arizona (1966) 384 U.S. 436, and he confessed to shooting
Ortega.
Defendant moved pretrial to suppress his confession, arguing that his Miranda
waiver had been neither knowing nor voluntary, and that his statements to the police had
been coerced. In support, defendant presented psychiatric testimony that he suffered
from mild mental retardation. The trial court ruled that defendant‟s Miranda waivers had
been knowing and voluntary. But the court agreed with defendant that his confession
was the product of police coercion and therefore suppressed it.
In September 2000, the case went to trial before a jury, which convicted defendant
of first degree murder and three other felonies. (Pen. Code, §§ 187, 215 [carjacking], 211
[robbery], 12021, subd. (a)(1) [felon in possession of firearm]; further undesignated
statutory references are to the Pen. Code.) The jury also found true special circumstance
allegations that made defendant eligible for the death penalty: Defendant committed the
2
murder “by means of lying in wait” for the victim (§ 190.2, subd. (a)(15)) and also during
his commission of a robbery and a carjacking (id., subd. (a)(17)(A) & (L)). After the jury
was unable to decide on the appropriate penalty for the murder, the trial court declared a
mistrial and sentenced defendant to life imprisonment without parole for the murder, with
a consecutive prison term of 16 years four months for the other felonies.
Defendant appealed (Court of Appeal case No. A095433), challenging the trial
court‟s judgment on various grounds. In May 2004, a unanimous Court of Appeal panel
held that the trial court‟s failure to conduct a pretrial inquiry into defendant‟s competence
to stand trial violated defendant‟s right to due process under the federal Constitution.
(Ary I, supra, 118 Cal.App.4th at pp. 1021-1025.) The Court of Appeal described the
error as “per se prejudicial” (id. at p. 1025), yet it did not reverse defendant‟s convictions.
Rather, after considering supplemental briefing on whether the error could be “cured”
(ibid.), the Court of Appeal followed the procedure set forth by the United States Court of
Appeals for the Ninth Circuit in Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, by
remanding the matter to the trial court for a retrospective competency hearing. (Ary I,
supra, at pp. 1025-1028.) On remand, the trial court was to decide whether such a
hearing would be feasible. (Id. at p. 1029.) Feasibility, the Court of Appeal explained,
would depend on whether sufficient evidence remained to render a “ „reasonable
psychiatric judgment‟ ” of defendant‟s mental condition when he was tried. (Ibid.) Only
after that determination, the court stated, could the retrospective competency hearing be
held. (Id. at p. 1030.)
The Court of Appeal rejected defendant‟s request to impose “a „beyond a
reasonable doubt‟ standard of evidentiary proof on the People” to show the feasibility of
holding a retrospective competency hearing. (Ary I, supra, 118 Cal.App.4th at p. 1029.)
To require such a standard for “this threshold matter,” the Court of Appeal concluded,
would not be “particularly relevant or helpful” in determining whether sufficient
evidence remained on which to base a reasoned assessment of defendant‟s mental
3
competence when he was tried earlier. (Ibid.) The Ary I court further stated: “In the
event [a retrospective competency] hearing is held and defendant is found to have been
competent to stand trial, we will consider the remaining issues raised in this appeal. In
the event defendant is found to have been incompetent to stand trial, the judgment shall
be reversed.” (Id. at p. 1030.)1
Defendant then petitioned this court for review of a single issue: Whether the
prosecution should have to prove beyond a reasonable doubt the feasibility of a
retrospective hearing. Defendant did not challenge the Court of Appeal‟s conclusion in
Ary I that, if a retrospective hearing was feasible, the trial court at that hearing might be
able to “cure” its error in having proceeded to trial without first evaluating evidence of
defendant‟s mental competency to stand trial. In August 2004, we denied defendant‟s
petition for review.
Thereafter, on the remand that the Court of Appeal had ordered in Ary I, the trial
court found that sufficient evidence was still available on defendant‟s mental condition
when he was tried, so that at a retrospective hearing it would be feasible to determine
defendant‟s mental competence when tried in 2000.
The retrospective competency hearing occurred in October and November 2005.
Over defense objection, the trial court placed on defendant the burden of proving his lack
of mental competence when he was tried. After considering the testimony of defense and
prosecution witnesses, the trial court ruled that defendant “failed to prove, by a

1
After holding in its 2004 decision in Ary I, supra, 118 Cal.App.4th 1016, that the
trial court had violated defendant‟s federal constitutional right to due process by not
assessing evidence of his mental competence to stand trial, the Court of Appeal remanded
the case to the trial court for a retrospective competency hearing, without, however,
reversing the judgment of conviction. (Id. at p. 1030.) The correct procedure, as we held
two years later, would have been to reverse the judgment of conviction. (People v. Young
(2005) 34 Cal.4th 1149, 1217 [when “ „a full competence hearing is required but the trial
court fails to hold one, the judgment must be reversed‟ ”]; see also People v. Robinson
(2007) 151 Cal.App.4th 608, 619; People v. Kaplan (2007) 149 Cal.App.4th 372, 390.)
4


preponderance of the evidence, that he was incompetent to stand trial.” In February
2006, defendant filed a notice of appeal challenging that ruling. (§ 1237, subd. (b) [a
defendant may appeal from an order made after judgment affecting the defendant‟s
substantial rights].) To that appeal, the Court of Appeal assigned case No. A113020,
which is the matter now before us.
While defendant‟s appeal in case No. A113020 was pending, the same division of
the Court of Appeal in May 2008 issued an unpublished, unanimous decision in case No.
A095433 (defendant‟s original appeal from his conviction) addressing and rejecting the
remaining issues raised in that appeal (none related to the competency issue), and
affirming the judgment of conviction. That decision includes this description of the
proceedings that had occurred: “In an earlier opinion (People v. Ary (2004) 118
Cal.App.4th 1016) we held that Ary was deprived of his constitutional right to a fair trial
because the trial court did not order a competency hearing pursuant to section 1368. We
remanded the matter for a retrospective competency hearing. That hearing has been held.
At its conclusion, the trial court found that Ary was competent to stand trial. This finding
has not been challenged.” (Italics added.)2 Defendant petitioned our court for review of
the May 2008 decision. We denied review in August 2008.
In April 2009, a divided Court of Appeal panel filed its published decision in the
matter now before us.
The Court of Appeal majority concluded that, in contrast to the burden-of-proof
allocation at a competency hearing held before or during a trial, at a retrospective
competency hearing federal due process principles require that the prosecution bear the
burden of proving, by a preponderance of the evidence, that the defendant was competent
when he was tried. The majority therefore “vacated” the trial court‟s competency finding

2
The italicized statement was wrong: As we have pointed out, defendant‟s
challenge to the trial court‟s competency ruling was then pending (No. A113020) before
the same division of the Court of Appeal.
5


made at the retrospective competency hearing. It again remanded the matter to the trial
court, this time to have that court decide, based on the evidence already presented at the
retrospective competency hearing, whether the prosecution had actually established, by a
preponderance of the evidence, that defendant was mentally competent when he was tried
in 2000. Its dispositional order further stated: “If, after imposing that burden, the [trial]
court determines defendant was competent to stand trial at the time he was tried and
convicted, it shall reinstate the judgment. If it concludes defendant was not then
competent, it shall entertain such appropriate motions as may be made by the parties.”
(Italics added) We granted the Attorney General‟s petition for review on the burden-of-
proof issue.
Not before us are the legal issues that the Court of Appeal resolved in its two
earlier opinions on defendant‟s single appeal from the judgment of conviction in case No.
A095433. Those issues include the Court of Appeal‟s determinations in Ary I, supra, 118
Cal.App.4th at pages 1025-1026, that (1) the federal constitutional error in failing to
evaluate defendant‟s mental competence at the time of trial might be “cured” by means of
a retrospective competency hearing (see Odle v. Woodford, supra, 238 F.3d at p. 1089);
and (2) the prosecution at that hearing must establish the availability of evidence
concerning defendant‟s mental condition when he was tried earlier, in order to show the
feasibility of a retrospective hearing, but the prosecution need not prove feasibility
beyond a reasonable doubt. Under the law-of-the-case doctrine, the Court of Appeal‟s
resolutions of those issues are now conclusive. (See People v. Curl (2009) 46 Cal.4th
339, 352; Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.)
Before discussing the issue on which we granted review — allocation of the
burden of proof at a retrospective or postjudgment competency hearing — we summarize
the constitutional principles that prohibit trying a mentally incompetent criminal
defendant.
6

II
The due process clause of the federal Constitution‟s Fourteenth Amendment
prohibits trying a criminal defendant who is mentally incompetent. (Medina v. California
(1992) 505 U.S. 437, 439; Pate v. Robinson (1966) 383 U.S. 375, 378 (Pate).) A
defendant is deemed competent to stand trial only if he “ „has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding‟ ” and “ „has a
rational as well as factual understanding of the proceedings against him.‟ ” (Dusky v.
United States (1960) 362 U.S. 402, 402.)
When a trial court is presented with evidence that raises a reasonable doubt about
a defendant‟s mental competence to stand trial, federal due process principles require that
trial proceedings be suspended and a hearing be held to determine the defendant‟s
competence. (Pate, supra, 383 U.S. at p. 385; People v. Taylor (2009) 47 Cal.4th 850,
861; People v. Halvorsen (2007) 42 Cal.4th 379, 401.) Only upon a determination that
the defendant is mentally competent may the matter proceed to trial. (Pate, supra, at
p. 385.)
California law reflects those constitutional requirements. Section 1368, in
subdivision (a), requires a trial court to suspend criminal proceedings at any time “prior
to judgment” if the court reasonably doubts “the mental competence of the defendant.” A
defendant can create reasonable doubt through substantial evidence of mental
incompetence, or the trial court can raise the issue on its own. (People v. Lewis (2008) 43
Cal.4th 415, 524; People v. Blair (2005) 36 Cal.4th 686, 711; see § 1368, subds. (a) &
(b).) Section 1369 provides for the appointment of psychiatrists as well as licensed
psychologists to assess the defendant‟s mental competence (id., subd. (a)); and it allows
both the defense and the prosecution to present evidence to either support or counter a
claim of the defendant‟s mental incompetence to stand trial (id., subds. (b)-(d)).
7

As to who has the burden of proof on the question of the defendant‟s mental
competence, section 1369, subdivision (f), states in part: “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.” Thus, under California law, when a trial
court “prior to judgment” (§ 1368, subd. (a)) suspends criminal proceedings and holds a
mental competency hearing, it is the defendant who bears the burden of establishing lack
of competence (§ 1369, subd. (f); see People v. Medina (1990) 51 Cal.3d 870, 881). In
Medina, we rejected the defendant‟s contention that the “presumption of competence and
burden of proof allocation” set out in section 1369, subdivision (f), violated the federal
Constitution‟s due process clause. Our decision was thereafter, in 1992, upheld by the
United States Supreme Court. (Medina v. California, supra, 505 U.S. 437, 446, 453.)
The high court in Medina pointed out that a state rule of criminal procedure “ „is
not subject to proscription under the Due Process Clause unless “it offends some
principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.” ‟ ” (Medina v. California, supra, 505 U.S. at p. 445, quoting
Patterson v. New York (1977) 432 U.S. 197, 201-202.) After surveying the allocation of
the burden of proof in mental competence proceedings throughout the United States, the
high court could discern “no settled tradition on the proper allocation of the burden of
proof in a proceeding to determine competence”; it therefore concluded that, in placing
that burden on the defendant, California did not violate the federal Constitution‟s due
process principles. (Medina v. California, supra, at p. 446.) In the words of the high
court: “Based on our review of the historical treatment of the burden of proof in
competency proceedings, the operation of the challenged rule, and our precedents, we
cannot say that the allocation of the burden of proof to a criminal defendant to prove
incompetence „offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.‟ ” (Ibid.)
Thus, with respect to mental competency determinations made “during the
8
pendency of an action and prior to judgment” (§ 1368, subd. (a)), the law is settled that
placing on a criminal defendant the burden of proving incompetence to stand trial does
not offend the federal Constitution‟s due process clause. (Medina v. California, supra,
505 U.S. at p. 446.)
Does that rule also apply to a postjudgment proceeding to determine whether the
defendant was mentally competent when he was tried? We now turn to that issue.
III
According to the Court of Appeal majority here, “placement of the burden of
proof will be the determinative factor in most cases in which competency is determined
ex post facto,” and given that burden, a criminal defendant “will rarely, if ever, be able
to sustain it.” In the majority‟s view, assigning to a defendant at a postjudgment mental
competency hearing the burden of proving he was mentally incompetent when tried is
“inconsistent with the fundamental fairness implicit in the constitutional concept of due
process.” The Court of Appeal majority therefore concluded that at a retrospective
hearing held after a reviewing court determines that the trial court erred in not assessing
evidence of the defendant‟s mental competence at the time of trial, it is the prosecution
that bears the burden of proving “by a preponderance of the evidence that the defendant
was competent to stand trial at the time he was tried.”
The dissent, by contrast, reasoned that the high court‟s decision in Medina v.
California, supra, 505 U.S. 437, leaves a state free to allocate to the defendant the
burden of proving mental incompetence to stand trial at any stage in the proceedings,
including a retrospective mental competency hearing. This view finds support in case
law.
For example, the United States Court of Appeals for the Ninth Circuit held in
Moran v. Godinez (9th Cir. 1994) 57 F.3d 690 (Moran) (overruled on other grounds by
Lockyer v. Andrade (2003) 538 U.S. 63, 75-76), that to allocate to the defendant at a
retrospective or postjudgment hearing the burden of proving mental incompetence when
9
tried comports with federal due process requirements “so long as the state provides
adequate procedures to assess competence.” (57 F.3d at p. 697.) Moran reasoned that
even though the high court in Medina v. California, supra, 505 U.S. 437, had directly
addressed only the assignment of the burden of proof at a competency hearing held
contemporaneously with the defendant‟s criminal trial, the high court‟s rationale was
“equally applicable to retrospective competency hearings.” (Moran, supra, at p. 697.)
Moran then concluded that “[w]hen it is established that a [defendant‟s] competence can
be accurately evaluated retrospectively, there is no compelling reason to require states to
divert from their normal procedures for assessing competence.” (Ibid.) Thereafter, in a
2001 decision, the Ninth Circuit pointed out that a court can “cure its failure to hold a
competency hearing at the time of trial by conducting one retroactively.” (Odle v.
Woodford, supra, 238 F.3d at p. 1089.)
A majority of courts that have considered this issue agree. (See Rhode v. Olk-
Long (8th Cir. 1996) 84 F.3d 284, 288 [holding that high court‟s decision in Medina v.
California, supra, 505 U.S. 437, applies “with equal force to post-conviction
competency hearings”]; Montana v. Boswick (Mont. 1999) 988 P.2d 765, 773 [citing
Moran, supra, 57 F.3d 696, for the rule that the erroneous failure to hold a pretrial
competency hearing can be “cured” by a meaningful retrospective hearing]; Traylor v.
State (Ga. 2006) 627 S.E.2d 594, 601 [remanding for retrospective competency hearing
at which defendant was to “have the burden to show incompetency by a preponderance
of the evidence”]; Tate v. State (Okla.Crim.App. 1995) 896 P.2d 1182, 1187-1188
[concluding that no due process violation resulted from placing burden of establishing
incompetency on defendant at retrospective hearing]; but see James v. Singletary (11th
Cir. 1992) 957 F.2d 1562, 1571, fn. 14 [holding, three months before the high court‟s
decision in Medina v. California, supra, 505 U.S. 437, that a retrospective competency
proceeding was “a harmless error determination in disguise,” at which the prosecution
must bear the burden of proof].)
10
We agree with the prevailing view. When, as occurred here, a reviewing court
concludes that a trial court has violated a defendant‟s federal constitutional right to due
process by failing to hold a hearing to assess evidence of a defendant‟s mental
competence at the time of trial, and the case is then remanded to the trial court for a
retrospective competency hearing to determine whether the procedural error can be
cured, the trial court must first decide whether a retrospective determination is indeed
feasible. Feasibility in this context means the availability of sufficient evidence to
reliably determine the defendant‟s mental competence when tried earlier.3 In the words
of the Oklahoma Court of Criminal Appeals: “[T]he defendant will be placed in a
position comparable to the one he would have been placed in prior to the original trial.
Under these circumstances, no due process violation occurs by ultimately placing the
burden of proving incompetency on the defendant in a retrospective hearing.” (Tate v.
State, supra, 896 P.2d at p. 1188.)
To summarize, once the feasibility of a retrospective hearing is determined,
requiring a criminal defendant to prove at a retrospective mental competency hearing
that he was incompetent when tried earlier does not “ „offend[] some principle of justice
so rooted in the traditions and conscience of our people as to be ranked as
fundamental.‟ ” (Medina v. California, supra, 505 U.S. at p. 446.) In concluding
otherwise, the Court of Appeal majority here erred.

3
Relevant to determining feasibility of a postjudgment hearing on a defendant‟s
mental competence when tried are the factors set out by the Court of Appeal in People v.
Robinson
(2007) 151 Cal.App.4th 606, 617: “ „ “(1) the passage of time, (2) the
availability of contemporaneous medical evidence, including medical records and prior
competency determinations, (3) any statements by the defendant in the trial record, and
(4) the availability of individuals and trial witnesses, both experts and non-experts, who
were in a position to interact with [the] defendant before and during trial.” ‟ ”
11



DISPOSITION
We reverse the Court of Appeal‟s judgment, which remanded the case to the trial
court to determine whether, based on evidence already presented at the postjudgment
competency hearing, the prosecution had actually established, by a preponderance of the
evidence that defendant was mentally competent when tried.
KENNARD, ACTING C. J.
WE CONCUR:

BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
GEORGE, J.*

*
Retired Chief Justice of California, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
12



CONCURRING OPINION BY WERDEGAR, J.
I concur in the majority opinion. Specifically, I agree that to place the burden in a
retrospective competency hearing on defendant to prove his incompetency by a
preponderance of the evidence is constitutional. I also agree that not before us are the
legal issues whether “(1) the federal constitutional error in failing to evaluate defendant‟s
mental competence at the time of trial might be „cured‟ by means of a retrospective
competency hearing” (maj. opn., ante, at p. 6), and (2) the prosecution need not prove the
feasibility of a retrospective hearing beyond a reasonable doubt, these questions having
been conclusively settled for purposes of this case in the lower court.
Although I agree the law-of-the-case doctrine precludes our addressing the above
issues, our decision should not obscure the fact the issues we avoid are significant and
unresolved. When the United States Supreme Court first established an accused‟s due
process right to a hearing upon presentation of a reasonable doubt as to his or her
competency to stand trial, that court simply reversed the judgment against the accused,
specifically rejecting the claim “that it would be sufficient for the state court to hold a
limited hearing as to [the defendant‟s] mental competence at the time he was tried . . . .”
(Pate v. Robinson (1966) 383 U.S. 375, 387; see also Drope v. Missouri (1975) 420 U.S.
162, 183.) This court has done the same. (People v. Marks (1988) 45 Cal.3d 1335, 1340
[reversing the judgment, noting, “[t]hat the hearing was not held is dispositive”]; People
v. Hale (1988) 44 Cal.3d 531, 541 [failure to hold hearing “rendered the subsequent trial
proceedings void because the court had been divested of jurisdiction to proceed”]; People
1


v. Pennington (1967) 66 Cal.2d 508, 521 [specifically rejecting the suggestion that “the
error be cured by a retrospective determination of defendant‟s mental competence during
his trial”]; see also People v. Welch (1999) 20 Cal.4th 701, 738 [where substantial
evidence of the defendant‟s incompetency is presented but a hearing is not held, “the
judgment must be reversed”].) In recent years, however, some lower federal and state
courts have taken the position that such error can be cured by a remand to hold a
1
retrospective, or nunc pro tunc, competency hearing.
Reason exists to believe the United States Supreme Court would not approve the
procedure. For example, when, in Drope v. Missouri, supra, 420 U.S. 162, the high court
faced the prospect of remanding for a hearing to determine the state of the defendant‟s
competency six years earlier, it opined: “Given the inherent difficulties of such a nunc
pro tunc determination under the most favorable circumstances, [citations], we cannot
conclude that such a procedure would be adequate here.” (Id. at p. 183.) Similarly, in
Dusky v. United States (1960) 362 U.S. 402, 403 (per curiam), the court noted: “In view
of the doubts and ambiguities regarding the legal significance of the psychiatric
testimony in this case and the resulting difficulties of retrospectively determining the
petitioner‟s competency as of more than a year ago, we reverse the judgment . . . .”
(Italics added.)

1
See, e.g., Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, 1089 (“The state court
can nonetheless cure its failure to hold a competency hearing at the time of trial by
conducting one retroactively”); Moran v. Godinez (9th Cir. 1994) 57 F.3d 690, 696
(“retrospective competency hearings are disfavored” but “permissible whenever a court
can conduct a meaningful hearing to evaluate retrospectively the competency of the
defendant”); People v. Robinson (2007) 151 Cal.App.4th 606, 617-618 (retrospective
competency hearings are possible depending on the circumstances); People v. Kaplan
(2007) 149 Cal.App.4th 372, 388-389 (same); see also People v. Ary (2004) 118
Cal.App.4th 1016, 1029 (retrospective competency hearings for Pate error should be
done in “rare circumstances”).
2


The Court of Appeal‟s decision below in People v. Ary, supra, 118 Cal.App.4th
1016—the decision we find controlling here—was the first California case to approve the
remand procedure. We recognized that holding (but did not necessarily endorse it) in
People v. Young (2005) 34 Cal.4th 1149, 1216-1217 and footnote 16. The issue therefore
remains an open one in this court.
Whether the People bear the burden to prove on remand that a retrospective
hearing is still feasible and, if so, whether their burden of proof is by a preponderance or
beyond a reasonable doubt, are similarly unsettled. As the majority explains, these issues
also are not before us in this case and we thus express no opinion on, for example,
whether the Court of Appeal correctly decided to impose the lesser burden of proof on
the People.
With those caveats, I concur.
WERDEGAR, J.
3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Ary
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 173 Cal.App.4th 80
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S173309
Date Filed: February 3, 2011
__________________________________________________________________________________

Court:

Superior
County: Contra Costa
Judge: Garrett J. Grant

__________________________________________________________________________________

Counsel:

James Kyle Gee, under appointment by the Supreme Court, for Defendant and Appellant.

Ann C. Moorman; and John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae on behalf
of Defendant and Appellant.

Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Laurence K. Sullivan, Rene A. Chacon and Joan Killeen, Deputy Attorneys General, for
Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

James Kyle Gee
2626 Harrison Street
Oakland, CA 94612
(510) 839-9230

Joan Killeen
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5968


Petition for review after the Court of Appeal remanded a judgment of conviction of criminal offenses for a determination whether defendant had been competent to stand trial. This case presents the following issue: At a retrospective competency hearing, does the prosecution or the defendant bear the burden of proving competence by a preponderance of the evidence?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 02/03/201151 Cal. 4th 510, 246 P.3d 322, 120 Cal. Rptr. 3d 431S173309Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Joan E. Killeen
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Ary, James (Defendant and Appellant)
California State Prison, Corcoran
P.O. Box 8800
Corcoran, CA 93212

Represented by James Kyle Gee
Attorney at Law
2626 Harrison Street
Oakland, CA

3California Attorneys for Criminal Justice (Amicus curiae)
Represented by John T. Philipsborn
Attorney at Law
507 Polk Street, Suite 250
San Francisco, CA

4California Attorneys for Criminal Justice (Amicus curiae)
Represented by Ann Carole Moorman
Attorney at Law
308 S. School Street
Ukiah, CA

5Philipsborn, John T. (Amicus curiae)
Represented by John T. Philipsborn
Attorney at Law
507 Polk Street, Suite 250
San Francisco, CA

6Philipsborn, John T. (Amicus curiae)
Represented by Ann Carole Moorman
Attorney at Law
308 S. School Street
Ukiah, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
ConcurJustice Kathryn M. Werdegar

Dockets
May 29 2009Petition for review filed
Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen  
May 29 2009Record requested
 
Jun 2 2009Received Court of Appeal record
  file folder/briefs/two boxes
Jul 21 2009Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including August 27, 2009, or the date upon which review is either granted or denied.
Jul 29 2009Petition for review granted
  Corrigan, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Aug 18 2009Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Kyle Gee is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Aug 21 2009Request for extension of time filed
  Respondent requesting thirty (30) day extension until September 27, 2009 to file opening brief on the merits. by Joan Killeen, deputy attorney general
Aug 26 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 27, 2009.
Sep 25 2009Opening brief on the merits filed
Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen  
Oct 19 2009Request for extension of time filed
  Appellant is requesting an additional 30 days, until Nov. 25, 2009 ,to file the Answer Brief on the Merits. by counsel, Kyle Gee
Oct 22 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including November 25, 2009.
Nov 24 2009Request for extension of time filed
  Appellant requesting additional seven days extension to file answer brief on the merits. by Kyle Gee, counsel
Dec 2 2009Extension of time granted
 
Dec 3 2009Answer brief on the merits filed
Defendant and Appellant: Ary, James, JR.Attorney: James Kyle Gee   CRC 8.25(b)
Dec 22 2009Reply brief filed (case fully briefed)
Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen  
Dec 23 2009Compensation awarded counsel
  Atty Gee
Dec 31 2009Application to file amicus curiae brief filed
  California Attorneys for Criminal Justice & John T. Philipsborn in support of appellant. By cousnel, Ann C. Moorman and John T. Philipsborn.
Jan 6 2010Permission to file amicus curiae brief granted
  The application of California Attorneys for Criminal Justice and John T. Philipsborn for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 6 2010Amicus curiae brief filed
Amicus curiae: California Attorneys for Criminal JusticeAttorney: Ann Carole Moorman Amicus curiae: Philipsborn, John T.Attorney: John T. Philipsborn  
Aug 24 2010Received:
  letter from Kyle Gee - counsel for appellant requesting that case not be set for oral argument during September 21, 2001 through October 7, 2010. by Kyle Gee, counsel for appellant James Ary.
Oct 27 2010Case ordered on calendar
  to be argued Tuesday, December 7, 2010, at 2:00 p.m., in Los Angeles
Dec 7 2010Cause argued and submitted
 
Jan 3 2011Justice pro tempore assigned
  George, C.J. (retired), appointed as justice pro tempore to this case.
Feb 2 2011Notice of forthcoming opinion posted
  To be filed Thursday, February 3, 2011 at 10 a.m.

Briefs
Sep 25 2009Opening brief on the merits filed
Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen  
Dec 3 2009Answer brief on the merits filed
Defendant and Appellant: Ary, James, JR.Attorney: James Kyle Gee  
Dec 22 2009Reply brief filed (case fully briefed)
Plaintiff and Respondent: The PeopleAttorney: Joan E. Killeen  
Jan 6 2010Amicus curiae brief filed
Amicus curiae: California Attorneys for Criminal JusticeAttorney: Ann Carole Moorman Amicus curiae: Philipsborn, John T.Attorney: John T. Philipsborn  
Brief Downloads
application/pdf icon
s173309-1respondents-petition-for-review.pdf (927327 bytes) - Respondents Petition for Review
application/pdf icon
s173309-2respondents-opening-brief-on-the-merits.pdf (373528 bytes) - Respondents Opening Brief on the Merits
application/pdf icon
s173309-3appellants-answer-brief-on-the-merits.pdf (538258 bytes) - Appellants Answer Brief on the Merits
application/pdf icon
s173309-4respondents-reply-brief-on-the-merits.pdf (149283 bytes) - Respondents Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by Susan Champion

Facts
In a jury trial, defendant was convicted of first degree murder with special circumstances, carjacking, robbery, and being a felon in possession of a firearm. He appealed, and the Court of Appeal found that the trial court’s failure to evaluate evidence of the defendant’s mental competence before judgment violated his 14th Amendment rights of due process. The Court remanded the case to the trial court to determine whether the error could be cured by a “retrospective” (or nunc pro tunc) competency hearing.

On remand, the trial court found that it was, indeed, feasible to retrospectively evaluate the Defendant’s mental competence at the time of his initial trial and subsequently conducted a retrospective competency hearing. At this hearing, the trial court used the same procedural standards used in “contemporaneous” competency hearings under Cal Pen. Code § 1369(f). This statute places the burden on the defendant to prove, by a preponderance of the evidence, that s/he was mentally incompetent when tried.

After hearing evidence from both sides, the trial court ruled that the defendant had failed to carry his evidentiary burden. The defendant again appealed, and the Court of Appeal held that the trial court had this time violated the defendant’s due process rights by assigning him the burden of proof in the retrospective competency hearing. The people appealed to the California Supreme Court.

Procedural history
Defendant was convicted in Contra Costa County Superior Court. He appealed. The Court of Appeal remanded with directions to hold a hearing on defendant’s competency to stand trial. People v. Ary (2004) 118 Cal.App.4th 1016. The Superior Court found that the defendant was competent and Defendant appealed. The Court of Appeal vacated and remanded. People v. Ary (2009) 92 Cal.Rptr.3d 473. The People appealed to the California Supreme Court, which granted review. People v. Ary (2009) 97 Cal.Rptr.3d 732.

Issues
Under California law, when a competency hearing is held contemporaneously with a trial, the defendant bears the burden of proving that s/he is incompetent. Does this same standard apply in a retrospective competency hearing, or does due process require that the prosecution bear the burden of proving that the defendant was competent at the time of the initial trial?

Holding
The Supreme Court, Kennard, Acting C.J., held that placing the burden of proof on the defendant to demonstrate incompetency to stand trial at a retrospective hearing does not violate due process. Reversed and remanded.

Analysis
California law reflects the federal constitutional due process requirements of the 14th Amendment, which prohibit trying a criminal defendant who is mentally incompetent. A trial court is required to suspend criminal proceedings at any time prior to judgment if the court reasonably doubts the mental competence of the defendant. Evidence of the defendant's incompetence may be brought to the court’s attention by either the defense or the prosecution, or the court itself may raise the issue.

Cal. Pen. Code § 1369(f) governs the burden of proof in competency hearings, and establishes a presumption of mental competence unless it is proved “by a preponderance of the evidence” that a defendant is mentally incompetent. In People v. Medina (1990) 51 Cal.3d 870, 881, the California Supreme Court held that the statute requires the defendant to carry the burden of proof in competency hearings. After a constitutional challenge to this interpretation, the California Supreme Court's holding was affirmed by the United States Supreme Court in Medina v. California (1992) 505 U.S. 437, 446, 453. ("Medina II")

In Ary, the California Supreme Court discussed the Medina II opinion as part of its analysis. In Medina II the US Supreme Court said that a state rule of criminal procedure could not be a violation of constitutional due process unless it offended some “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 445. The Court then conducted a nation-wide review of the burden of proof in mental competency proceedings in various states and could not discern any “settled tradition on the proper burden of proof.” Id. at 446. Finding no state-to-state consistency, it reasoned that California’s burden of proof standard could not be offensive to any deeply rooted or traditional fundamental principle of justice. Therefore, it was not unconstitutional.

The California Supreme Court used these principles to guide its reasoning on whether the same rule applied to a post judgment competency proceeding. The Court of Appeals had constitutional concerns with placing the burden of proof on the defendant in a retrospective competency hearing because it felt that “placement of the burden of proof will be the determinative factor in most cases in which competency is determined ex post facto,” and given that burden, a criminal defendant “will rarely, if ever, be able to sustain it.” People v. Ary (2009) 92 Cal.Rptr.3d 473, 486. Thus, the Court of Appeals found that “retrospectivity” was a key distinguishing factor from Medina II and that due process required that the burden of proof in a retrospective competency hearing should be different from that of one held contemporaneously.

The California Supreme Court rejected the Appellate Court’s reasoning finding that the US Supreme Court ruling in Medina II left a state free to allocate the burden of proof to the defendant at any stage in the proceedings. The Court cited Moran v. Godinez, a Ninth Circuit Court of Appeals case, which stated that once it is determined that a competency hearing can be held retroactively, there is “no compelling reason to require states to divert from their normal procedure.” Moran v. Godinez (9th Cir.1994) 57 F.3d 690, 697. Finally, the Court conducted a review of other courts that have considered the issue, and found that the prevailing view was that there was no constitutional error in assigning the burden of proof to the defendant in a retrospective competency hearing.

Thus, the court reversed the Court of Appeal's ruling, holding that there is no error in assigning the burden of proof to the defendant in a retrospective competency hearing.

Concurrence
Werdegar, J. wrote a concurrence citing concerns with the use of nunc pro tunc competency proceedings generally, and presenting evidence that the US Supreme Court disfavored the use of these hearings. Judge Werdegar also noted that in a proceeding to determine whether a nunc pro tunc hearing was feasible, it was still unsettled whether the People's burden of proof was by a preponderance or beyond a reasonable doubt.