Pursuant to the due process clause of the California and Federal Constitutions, an initial SVPA commitment trial may not proceed while the defendant is incompetent. At a probable cause hearing, the superior court judge found probable cause to believe appellant suffered from a diagnosed mental disorder, was likely to engage in violent sexual behavior if released, and the matter was set for an initial trial on the SVPA petition. Counsel for appellant moved to stay the proceedings pending determination of appellant’s competency but the court denied the motion, finding appellant had no statutory right to be mentally competent during SVPA proceedings, and that with the guarantee of counsel provided by the SVPA statute, his due process concerns were met. The appellate court disagreed, citing People v. Allen (2008) 44 Cal.4th 843, which provides a four-part balancing test to determine which protections not contained in the statute are required to meet due process considerations. Here, in weighing whether defendant must be mentally competent for the initial SVPA proceeding, the court observed that appellant’s private interests, loss of liberty and stigma as being classified as a sexually violent predator subjected to treatment, are high; dignitary interest, ability to be an active participant in an SVPA proceeding, is strong; absent appellant’s participation, risk of an erroneous finding exists; and the state’s interest protecting the community and providing treatment will not be unduly hampered with a requirement that a defendant in the initial SVPA proceeding be mentally competent. The court granted appellant’s petition for writ of mandate and directed the superior court to suspend SVPA proceedings and conduct a hearing, in which Penal Code sections 1368 and 1369 can be utilized, to determine appellant’s mental competency. [Editor’s note: This issue is pending in the Supreme Court in People v. Moore (2009) 174 Cal.App.4th 856, review granted September 17, 2009, S174633.]