2023 California Code › Penal Code - PEN › PART 3 - OF IMPRISONMENT AND THE DEATH PENALTY › TITLE 3 - EXECUTION OF DEATH PENALTY › CHAPTER 2 - Suspension of Execution of Death Penalty: Insanity: Pregnancy › Section 3701.

3701. (a) If, after an execution date has been set, there is good reason to believe that an incarcerated person under judgment of death has become incompetent to be executed, the warden shall call that fact to the attention of the district attorney of the county in which the incarcerated person was sentenced, the Attorney General, and the incarcerated person’s counsel. If counsel for the incarcerated person has reason to believe that the incarcerated person is incompetent to be executed, counsel for the incarcerated person has a duty to file within 48 hours in the superior court of the county from which the incarcerated person’s judgment and sentence of death arises, a petition that identifies the conviction and judgment, alleges that the incarcerated person is believed to be incompetent to be executed, and asks that the question of the incarcerated person’s competence to be executed be inquired into. If counsel for the incarcerated person does not file that petition, or the incarcerated person does not have counsel, and the warden has notified the district attorney and the Attorney General that there is reason to believe that the incarcerated person is incompetent to be executed, the Attorney General shall file the petition. During the course of these proceedings, the court shall also consider whether the petitioner is permanently incompetent to be executed within the meaning of subdivision (e). The incarcerated person’s execution may not proceed until the court’s inquiry into the incarcerated person’s competence to be executed is complete.
(b) At any time prior to the setting of an execution date, an incarcerated person whose judgment and sentence of death has been affirmed on direct appeal may file a petition alleging the incarcerated person’s permanent incompetence to be executed. The petition must be verified and supported by either the opinion of a qualified expert that the incarcerated person is permanently incompetent within the meaning of subdivision (e) or medical evidence that the incarcerated person has one or more medical or mental health conditions that would support a finding that the incarcerated person is permanently incompetent within the meaning of subdivision (e).
(c) An incarcerated person who has submitted a petition pursuant to subdivision (b) that did not result in a determination that the incarcerated person is permanently incompetent to be executed may submit a renewed petition. A renewed petition must identify with specificity a change in the incarcerated person’s diagnosis or prognosis or change in the law that arose after the determination of the prior request that supports the renewed petition.
(d) For purposes of this section, “incompetent to be executed” means that, due to mental illness or disorder, an incarcerated person is unable to rationally understand either the punishment the incarcerated person is about to suffer or why the incarcerated person is to suffer it.
(e) For purposes of this section, “permanent incompetence to be executed” means that the incarcerated person meets both of the following criteria:
(1) The incarcerated person is presently incompetent to be executed.
(2) The nature of the mental illness or disorder giving rise to incompetence is such that the incarcerated person’s competence to be executed is unlikely to ever be restored.
(f) Following the filing of the petition specified in subdivisions (a), (b), or (c), the court shall hold a hearing if there is reason to believe the incarcerated person is presently incompetent to be executed, as specified in subdivision (a), or there is reason to believe the incarcerated person is permanently incompetent to be executed, as specified in subdivision (b) and (c). The court may decline to hold a hearing if the parties stipulate that no hearing is necessary.
(g) When an incarcerated person proffers an expert opinion that the incarcerated person is incompetent to be executed, another expert’s opinion that concludes otherwise is an insufficient basis to deny a hearing.
(h) For purposes of this section, a claim in a petition for writ of habeas corpus alleging permanent incompetence to be executed that was filed before January 1, 2023, and that is still pending, shall be treated as a petition filed pursuant to subdivision (b). In those cases, if the court has already concluded that the petitioner made a prima facie showing of entitlement to relief, it shall proceed to a hearing pursuant to this section and Sections 3702 and 3703, unless the parties stipulate otherwise.
(i) A petition filed under this section by an incarcerated person under sentence of death constitutes a petition for writ of habeas corpus within the meaning of subdivision (a) of Section 1509 of the Penal Code and is subject to the requirements of that section. A petition filed by an incarcerated person under this chapter constitutes a claim that the petitioner is ineligible for a sentence of death within the meaning of subdivision (d) of Section 1509 of the Penal Code. No provision of this chapter alters, changes, or amends any of the statutory provisions contained in the Death Penalty Reform and Savings Act of 2016 enacted by the voters in the November 2016 election within the meaning of Section 20 of that act.
(j) An attorney acting on behalf of the incarcerated person who suspects that the incarcerated person may be incompetent to be executed may obtain an order from the superior court from which the incarcerated person’s conviction and sentence arises directing the Department of Corrections and Rehabilitation to release the incarcerated person’s medical and psychiatric records to the attorney or the attorney’s representative for use under this section.
(k) This section shall apply retroactively.
(Repealed and added by Stats. 2022, Ch. 795, Sec. 5. (AB 2657) Effective January 1, 2023.)