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Name: People v. Bell
Case #: E047068
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/04/2010

In a competency proceeding pursuant to Penal Code section 1368, once it is established that the court has a doubt as to defendant’s competence, trial counsel has the authority to determine whether defendant should testify at the trial on the matter, even if defendant himself desires to testify. Appellant was charged with arson and attempted arson. Prior to trial, defense counsel expressed a doubt as to appellant’s competency. An evaluation of appellant was completed by mental health staff at the county jail and after reviewing it, the judge suspended criminal proceedings (Pen. Code, sec. 1368) and appointed three doctors to evaluate appellant. Two found appellant competent and one found him not to be competent. Defense counsel refused to submit the issue on the reports and a jury trial was held. At trial, appellant insisted on testifying over the objections of defense counsel and the court permitted him to testify. Appellant was found competent and eventually convicted of the arson charges. Relying on the rationale of People v. Masterson (1994) 8 Cal.4th 965, the appellate court found error. In Masterson, the issue was whether counsel could stipulate to the use of an 11-person jury in a competency hearing over appellant’s objections. As discussed in Masterson, a competency hearing is a special proceeding governed by rules applicable to civil proceedings, that focuses on the due process concerns that prohibit a state from trying or convicting a criminal defendant while he is mentally incompetent. As such, the defendant plays a lesser role than in a criminal proceeding. Logically, a person whose competence is in question cannot be entrusted to make basic decisions regarding the conduct of a competency proceeding. This is true even though there is a presumption of competency in the proceeding. Counsel need not entrust key decisions to defendant, but instead, must do what he/she believes is in the best interests of the client and the client may not veto those same decisions. In this respect, the competency proceeding is unlike SVPA proceedings in that it is concerned with the protection of the accused from being criminally tried when incompetent whereas the SVPA proceeding is initiated for the protection of society from violent predators. Although the court here found the trial court erred in permitting appellant to testify over counsel’s objection, it determined that the error was harmless because it found that appellant’s testimony had no impact on the determination of competency and the experts provided a basis to find him competent.