Changes to the law regarding INCOMPETENCY to stand Trial

​It’s a basic tenet of our fundamental fairness within our criminal justice system that a criminal defendant needs to be competent to assist in his or her own defense. Because of this, California has long held that a person cannot be tried or “adjudged to punishment while that person is mentally incompetent.” Should the judge, prosecutor or defense attorney have a basis for believing the defendant is not competent to stand trial, a procedure has been put in place wherein criminal proceedings are suspended while the defendant is evaluated for competency, the underlying issues are identified, and, wherever possible, restored to competency.  Prior to 2022, this restoration to competency was legally allowed to include involuntary antipsychotic medication in all cases. 
 
After the passage of SB 317, however, the portion of the law regarding the restoration of competency for a person charged with a misdemeanor or a violation of probation for a misdemeanor has been repealed, including the provisions regarding administration for antipsychotic medication.  Instead, the court is still authorized to have the defendant evaluated for competency, but now must either grant mental health diversion or dismiss the charges if the defendant is found to be incompetent and cannot be restored to competence without involuntary medication. If the person can be restored to company through counseling or voluntary medication, the court is to refer the defendant for evaluation by the County Public Health Director for “a written recommendation as to whether the defendant should be required to undergo outpatient treatment, or committed to a treatment facility.”
 
 SB 317 also assures that anytime the defendant spends in a mental health treatment facility pending their return of mental competency are credited against any potential jail sentence at the same rate other “good conduct credits” are awarded for time spent in “confined in or committed to a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp.”