I dissent.
Prior to trial, on defense counsel’s motion the court declared a doubt about defendant’s mental competence and instituted proceedings on the question under the authority of the statutory scheme codified in Penal Code section 1367 et seq. One of the provisions of that scheme is Penal Code section 1369, subdivision (f), which allocates the burden of proof to the defendant: “It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.” The parties introduced substantial evidence on the issue. The court subsequently determined that defendant was in fact competent.
The statutory scheme on mental competence is fundamentally flawed in its allocation of the burden of proof to the defendant, and as a result cannot support a determination of competence made under its “authority.” The reason is plain. The provisions violate the guaranty of due process of law under article I, section 15 of the California Constitution. (Cf. People v. Medina (1990) 51 Cal.3d 870, 913-914 [274 Cal.Rptr. 849, 799 P.2d 1282] *1197(dis. opn. of Mosk, J.) [analyzing the question under the due process clause of U.S. Const., Amend. XIV], affd. sub nom. Medina v. California (1992) _ U.S. _ [120 L.Ed.2d 353, 112 S.Ct. 2572].)
Accordingly, I would reverse the judgment in its entirety.1
Appellant’s petition for a rehearing was denied September 23, 1992, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.
Because of this result, I need not and do not reach any other question.
In passing, I note that the court's denial of defendant’s motion to suppress his handgun was manifestly erroneous. Defendant claimed the weapon was seized during an unreasonable search of the home of some relatives, with whom he had been staying as an overnight guest. In opposition, the People asserted lack of standing: defendant, they urged, did not have a legitimate expectation of privacy in the premises. The court denied relief on that basis. It was wrong. In Minnesota v. Olson (1990) 495 U.S. 91 [109 L.Ed.2d 85, 110 S.Ct. 1684], the United States Supreme Court held that “an overnight guest” does in fact have a “legitimate expectation of privacy in his host’s home” (id. at pp. 98-100 [109 L.Ed.2d at pp. 94-96, 110 S.Ct. at p. 1689]), and that he does so simply by reason of his “status” as such (id. at pp. 96-98 [109 L.Ed.2d at pp. 92-94, 110 S.Ct. at p. 1688]).
It seems plain to me that defendant also had a legitimate expectation of privacy in his handgun. The majority disagree. But the conduct they deem to be defendant’s relinquishment of his privacy interest against the government cannot be so characterized. His entrusting of the weapon to his cousin was a concealment and not a disclosure. All the same, the point is of no consequence. The presence or absence of a legitimate expectation of privacy by defendant in his handgun was not the basis on which the parties litigated the issue and the court made its decision. Hence, it simply cannot be used to support the ruling after the fact. Fairness forbids.