Counsel, not the defendant, decides whether he testifies at a competency hearing: People v. Lackey-Garcia
Does a criminal defendant have a right to testify at a competency hearing over his lawyer's objection? In People v. Lackey-Garcia, filed October 16, 2026, the Third District held he does not: once a doubt about competence is declared, counsel retains authority to override the defendant's wish to testify. The court also upheld the finding that the defendant was competent and affirmed the judgment.
What happened in People v. Lackey-Garcia
The defendant was charged with two counts of murder and two counts of attempted murder. In December 2022, defense counsel raised a doubt about his competence under Penal Code section 1368, citing his "inability to work with counsel," and the court suspended the criminal proceedings. One psychologist had interviewed him in early 2021 and found him competent. The psychologist the court reappointed after the doubt was declared could not interview him, because he refused to meet with her. In August 2023 she gave what she called a "compromised" opinion, based on records and input from defense counsel, that he was incompetent.
At the October 2023 competency hearing, the defense called that psychologist, a family member and a sheriff's deputy. After the defense rested, the defendant asked: "Am I going to get a chance to testify? This is my trial, right?" His lawyer answered, "No." Counsel told the court that, in the competency proceeding, "the decision whether or not Mr. Lackey-Garcia testifies rests solely with counsel." The court noted counsel's position.
The prosecution called the psychologist who had found him competent in 2021 and played recordings of two jail visits from the week before the hearing. The court found him competent and reinstated the criminal proceedings. He later represented himself at trial and was convicted on all counts.
Does a defendant have a right to testify at a competency hearing?
Not over counsel's objection, the Court of Appeal held. In a criminal trial, a defendant has a right to testify over the objection of counsel. But, quoting People v. Masterson (1994) 8 Cal.4th 965, the court explained that "what applies to a criminal case does not necessarily apply to a competency proceeding." A competency proceeding is a special proceeding with a limited purpose: deciding whether the defendant can understand the criminal proceedings and assist counsel in a rational manner. The California Supreme Court has already allowed counsel to make key decisions in that setting, including waiving a jury over the defendant's objection and submitting the question on the psychiatric reports.
The court followed People v. Bell (2010) 181 Cal.App.4th 1071, from the Fourth District, Division Two. If counsel may waive an adversarial hearing altogether, the court reasoned, counsel may also decide whether a defendant whose competence is in doubt will testify:
"We thus agree with Bell that counsel retains the authority to override a defendant’s expressed desire to testify at a competency proceeding."
The defendant asked the court to adopt instead the concurring and dissenting opinion in Bell, which would have recognized a due process right to testify, drawing on People v. Allen (2008) 44 Cal.4th 843, a case about commitment proceedings under the Sexually Violent Predator Act. The court declined. It noted that the United States Supreme Court, in Medina v. California (1992) 505 U.S. 437, rejected reliance on the Mathews v. Eldridge framework for federal due process challenges to state competency procedures. It also stressed that a defendant in a competency proceeding has an interest not only in avoiding involuntary commitment but also in not being tried while incompetent. That countervailing concern, the court wrote, "persuades us that the Bell majority correctly held that defendants in competency proceedings lack a right to testify in the face of an objection by counsel."
The court also distinguished Guardianship of Waite (1939) 14 Cal.2d 727, found unpersuasive the Ninth Circuit's decision in United States v. Gillenwater (9th Cir. 2013) 717 F.3d 1070, which held that a defendant has a right to testify at a competency proceeding that only the defendant can personally waive, and treated a contrary statement in People v. Harris (1993) 14 Cal.App.4th 984 as dictum.
Substantial evidence supported the competency finding
The defendant also argued that the trial court had no reasonable basis to reject the only current opinion that he was incompetent. Reviewing for substantial evidence, the court disagreed. A trial court is not required to accept such an opinion, even a unanimous one. Here the psychologist acknowledged her opinion was "compromised" by the lack of an interview, she did not explain the basis for her confidence, and she relied in part on an understanding, not supported by the record, that a judge rather than defense counsel had raised the doubt. The earlier evaluation, with a personal interview and psychological assessments, could still be weighed. And the jail recordings supported a finding that he could, when he wished, discuss his case and defense strategy rationally. The court quoted People v. Parker (2022) 13 Cal.5th 1: "An uncooperative defendant is not tantamount to an incompetent one."
The judgment was affirmed. A separate part of the opinion, upholding a pinpoint jury instruction that unreasonable self-defense does not apply when the belief in the need for self-defense is entirely delusional, is not certified for publication.
What the decision means for competency proceedings
Once a doubt about competence is declared, decision-making in the competency proceeding shifts toward counsel. Under this decision, that includes whether the defendant takes the stand at the competency hearing, even when the defendant asks to testify. The decision now stands with the Bell majority as published California authority on the point, while the Ninth Circuit in Gillenwater has taken a different view. Who controls which decisions matters before the hearing begins, not just on appeal. More on our criminal appeals practice.
Key takeaways
- Counsel may override a defendant's expressed desire to testify at a competency hearing, following the majority in People v. Bell.
- The court reasoned that a competency proceeding is a special proceeding, not a criminal trial, so the trial right to testify over counsel's objection does not carry over.
- The court rejected the Bell concurring and dissenting opinion and found the Ninth Circuit's decision in United States v. Gillenwater unpersuasive.
- Substantial evidence supported the competency finding, even though the only current evaluator's opinion was that the defendant was incompetent.
Why this case shows the value of appellate counsel
Competency rulings are reviewed for substantial evidence, and on the right-to-testify question this court has now joined the Bell majority. A defendant who challenges a competency ruling on appeal faces deferential review and published authority against the testimony argument. What still matters is the record: what the evaluators relied on, what was said when the defendant asked to testify, and what evidence the trial court weighed. Here the court pointed to jail recordings that supported the finding. Addressing the evidence on the other side, not only the favorable parts, is core appellate work. If you are facing a competency ruling, or a conviction that followed one, talk to an appellate lawyer about what the record supports.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864