In the “rare” case in which a retrospective competency hearing is conducted as a result of a Pate violation(Pate v. Robinson (1966) 383 U.S. 375 [trial court’s failure to accord appellant a competency hearing at trial], due process requires that the state bear the burden of proof of proving competency by a preponderance of evidence. Appellant was convicted of first degree murder, carjacking, robbery, and being a felon in possession of a firearm. The jury also found true firearm allegations. Appellant was sentenced to life without possibility of parole. On appeal, the appellate court determined that the trial court erred in not holding a competency hearing on its own initiative, despite information raising a bona fide doubt as to appellant’s competency, and remanded the matter for a retrospective competency hearing. At the hearing, the prosecution successfully convinced the trial court that the procedure for a retrospective competency hearing was that prescribed in Penal Code section 1368, and that under this statute, it is presumed that appellant is competent and he has the burden of proving incompetency by a preponderance of evidence. The appellate court disagreed, finding that section 1368 et seq., controls only at the time of trial when a doubt arises in the court’s mind as to a defendant’s mental competence. At the retrospective hearing, the state has the burden. Since the state is partially responsible for not conducting the competency hearing at the initial trial, it is not fair to allocate the burden of proof to appellant. Additionally, placing the burden on the state will deter such errors and diminish the likelihood of Pate violations.