specially concurring.
I concur in the result obtained in the majority opinion and in much of the analysis and language contained therein. Although not explicitly stated in the majority opinion, there appears to be the implication that Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973), and Sailer v. Gunn, 548 F.2d 271 (9th Cir. 1977), are somehow binding and conclusive on this Court. My view is otherwise. To the extent that such decisions are well reasoned, they may be persuasive. As is well stated in the majority opinion, a *348defendant is presumed to be mentally competent and a defense of mental incompetence is an affirmative defense and its assertion requires a defendant to do more than merely file a pleading. To the extent that the language of the majority opinion, in its discussion of Sieling and Sailer may modify that rule, I disagree. To the extent that additional duties are to be placed upon a trial judge in situations such as the case at bar, I disagree. Here the defendant was represented by counsel and no criticism of counsel’s competence is made or even implied. Psychiatric evaluation was offered and rejected by the defendant. I suggest that the language of the majority to the effect that a competency question “lurks in the background” somehow puts in issue the competence of a defendant in contradiction to the usual presumption.