Penal Code section 1372(c)(2), which requires a report from a mental health professional before a trial court may reject a certificate of restoration to competency, does not violate separation of powers. McKneely was found incompetent to stand trial and ordered committed to DSH. DSH filed a certificate of restoration to competency with the committing court, supported by a psychologist’s report. McKneely’s trial counsel urged the trial court to reject the certificate, based on counsel’s own declaration that she believed her client was not competent. The trial court concluded that it lacked authority to do so, because section 1372(c)(2) (effective 6/30/22) requires a report from a mental health professional to support the rejection of a certificate. McKneely filed a writ petition in the Court of Appeal, challenging the constitutionality of this requirement. Held: Petition denied. McKneely’s argued that the Legislature usurped the judiciary’s role by requiring a court to base its rejection of a certificate of restoration on expert evaluation, thereby violating the separation of powers. The court disagreed. The current version of section 1372 does not eliminate the requirement that the trial court determine whether the defendant has recovered competence, nor impair the trial court’s ability to make the required finding. Instead, the filing of a certificate of restoration merely gives rise to the presumption that competence has been recovered, which can be overcome if it is supported by a subsequent evaluation by a licensed psychologist or psychiatrist who concludes that the defendant is not competent. Nothing in section 1372(c)(2) requires acceptance of the certificate, bars lay testimony, nor limits the court’s authority to appoint such an expert.

The amendment to section Penal Code section 1372 does not violate due process. McKneely argued that the amendment to section 1372 violates due process by creating an “unacceptably high risk” that a defendant will be tried while incompetent. However, the statute does not require the trial court to accept the certificate of restoration. A defendant still has the right to a hearing, including the right to request a written evaluation by a psychologist or psychiatrist. Additionally, nothing in section 1372(c)(2) prevents the court or defense counsel from subsequently declaring a doubt as to the defendant’s competence to stand trial under section 1368. The court further disagreed with McKneely’s argument that the amended statute unconstitutionally prolongs the amount of time an incompetent defendant is committed because of the time it takes to appoint an expert and produce a report. [Editor’s Note: McKneely also challenged section 1372(c)(2) as contrary to public policy. The court disagreed, noting it was not the court’s role to invalidate the amendment based on McKneely’s view of what constitutes wise public policy.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/A166307.PDF