I concur in parts 2 through 6 of the majority opinion.
*1490However, I find I must respectfully dissent from part 1 in which the majority holds the presumption a defendant is mentally competent to stand trial should apply at a hearing on the restoration of competency of a defendant the court has previously adjudicated incompetent to stand trial. In my view, once a defendant has been judicially determined to be incompetent to stand trial the People bear the burden of proving the defendant has been restored to competency.
In California, a person cannot be tried while mentally incompetent. (Pen. Code, § 1367.)1 As defined by section 1367, a defendant is mentally incompetent “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” When, during the pendency of a criminal proceeding, doubt arises in the mind of the court as to the defendant’s mental competence the court must suspend criminal proceedings and order a competency hearing. (§ 1368.) Section 1369, subdivision (a) provides that for purposes of such a competency hearing the court shall “appoint a psychiatrist or licensed psychologist and any other expert the court may deem appropriate, to examine the defendant.” The section further provides that 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.” (§ 1369, subd. (0.)
At the original competency hearing in this case defendant Mixon successfully rebutted the presumption of competence. He was adjudicated incompetent to stand trial and was committed to a state mental facility for treatment and further evaluation. After officials at the state mental hospital certified Mixon had regained competence the court held a second competency hearing. At this restoration of competency hearing, the court, applying the presumption of competence contained in section 1369 subdivision (f), held defendant failed to satisfy the burden of proving his incompetence by a preponderance of the evidence and therefore adjudicated Mixon competent to stand trial. After hearing all the evidence the trial court quoted from section 1369, subdivision (f) as follows: “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.”
Then the court stated: “I find for the purposes of this hearing that burden of proof has not been met and that the defendant is competent, and, accordingly, that he will proceed to trial.”
*1491Defendant argues section 1369, subdivision (f) is unconstitutional on the ground that it is fundamentally unfair to require an incompetent person to prove his own incompetence.
Whether a defendant can constitutionally be required to prove incompetency at the initial competency hearing is the subject of debate among courts and commentators.2 California follows the minority view due process is not violated by requiring a defendant initially to prove his own incompetence. (People v. Medina (1990) 51 Cal.3d 870 [274 Cal.Rptr. 849, 799 P.2d 1282].) (See also State v. Chapman (1986) 104 N.M. 324 [721 P.2d 392, 395-396]; Lowenfield v. Phelps (5th Cir. 1987) 817 F.2d 285, 294; State v. Pedersen (Iowa 1981) 309 N.W.2d 490, 496; Wallace v. State (1981) 248 Ga. 255 [282 S.E.2d 325, 330]; Spencer v. Zant (11th Cir. 1983) 715 F.2d 1562, 1567; White v. Estelle (5th Cir. 1982) 669 F.2d 973, 975.)
In this case, however, we are not considering an initial determination of incompetency under section 1369. This case deals with restoration of competency under section 1372. Here, defendant had already been found incompetent by a preponderance of the evidence at an initial competency hearing held pursuant to section 1369 at which the presumption of competency was rebutted.
By its terms the presumption of competency contained in section 1369 only applies at an original competency hearing. It is not incorporated by reference into restoration hearings under section 1372. (See People v. Murrell (1987) 196 Cal.App.3d 822, 826 [242 Cal.Rptr. 175].) Thus it is not necessary to address the constitutionality of sections 1369 or 1372, but rather to determine where, as a matter of judicial rule, the burden of proof should lie in a restoration hearing under section 1372.
Contrary to the view expressed by the majority, this case does not turn on whether the state or the defendant is the “moving party” at the hearing on *1492restoration of competency. It cannot be disputed the question of the defendant’s competency to stand trial is again before the court because the state, through its mental health officials, contends the defendant has been restored to competency. The fact the defendant has chosen to contest that assertion is not determinative of the question who bears the burden of proving what.
Where the burden of proof should fall in a restoration of competency hearing is a question of first impression in California. For the reasons set forth below I have concluded the burden should rest with the People. I do not rest this conclusion on constitutional grounds for I find adequate precedent in existing case law and well-accepted rules of jurisprudence.
One very obvious reason the burden of proof should lie with the prosecution is that it is inconsistent to presume a defendant is competent when the court has previously found him to be incompetent. It is a well-established principle of law that things once proven to exist in a particular condition are presumed to continue in that condition until the contrary is proven. (Lux v. Haggin (1886) 69 Cal. 255, 381 [10 P. 674].) This principle is codified in Civil Code section 3547 which states: “A thing continues to exist as long as is usual with things of that nature.” This principle has been applied to the determination of a person’s mental state in cases involving testamentary incompetency (Estate of Fosselman (1957) 48 Cal.2d 179, 186 [308 P.2d 336]), and the insanity defense (People v. Berry (1955) 44 Cal.2d 426, 433 [282 P.2d 861]). In People v. Berry, the court held it was proper to instruct the jury, “[A] condition once shown to have existed is presumed to continue until the contrary is proved; and therefore if the jury should find that at some time prior to the commission of the assault, defendant was suffering from some form of insanity, then it would be presumed that he was suffering from such form of insanity when he committed the assault.” (Ibid.)
In In re Franklin (1972) 7 Cal.3d 126 [101 Cal.Rptr. 553, 496 P.2d 465], our Supreme Court explained the reason for applying this presumption for mental capacity saying, “the fact that defendant must [initially] prove his insanity by a preponderance of the evidence constitutes ‘a very solid basis upon which the presumption of continuing mental illness may rest.’ ” (Citation omitted.) The court went on to observe, “it is the general rule that when insanity has been adjudicated it is ‘presumed to continue unless the contrary is shown.’” (Id. at p. 141, fn. 9, quoting In re Zanetti (1949) 34 Cal.2d 136, 138 [208 P.2d 657]; see also In re Dennis (1959) 51 Cal.2d 666, 673-674 [335 P.2d 657].)
This principle, that a mental state found to exist is presumed to continue to exist until the contrary is proved, has been applied by the courts of other jurisdictions at hearings on the restoration of competency to stand trial.
*1493In Manning v. State (Tex.Crim.App. 1987) 730 S.W.2d 744, 748, the Texas Court of Criminal Appeals reaffirmed previous opinions holding that once incompetency to stand trial has been established the burden shifts to the state to prove the defendant is presently competent. The court stated: “[T]he case law through the years is fairly clear that a defendant has the burden of proving by a preponderance of the evidence, his incompetency to stand trial or his insanity at the time of the offense. . . . Case law is also clear that the burden of proof shifts to the State if a prior, unvacated adjudication of incompetency or insanity is shown. We hold, consistent with common law, that if such prior adjudication for incompetency is shown, the State must then prove the accused’s competency to stand trial . . . .” (Citations omitted, italics in original.)
The reason for placing the burden on the state was explained in an earlier opinion by the Texas Court of Appeals: “We hold that in a case where the defendant has been previously found incompetent, the presumption of competency does not prevail, and the State has the burden of proving competency by a preponderance of the evidence unless there has been no objection by the defendant to the report from the head of [the commitment facility]. It is the State which is asserting that a condition has changed and therefore they [sic] should have the burden of proving it. By objecting, the defendant is relying on the status quo of the prior adjudication where he did have the burden of proof.” (Villarreal v. State (Tex.Ct.App. 1985) 699 S.W.2d 364, 366.)
The reasoning by the Texas courts requiring the state to prove restoration of competency is very similar to the reasoning behind the presumption of continued insanity expressed by our Supreme Court in In re Franklin, quoted, ante, page 1492.
In Perkins v. Mayo (Fla. 1957) 92 So.2d 641, 644, the Florida Supreme Court granted a petition for writ of habeas corpus on the ground the trial court accepted defendant’s guilty pleas and imposed sentence despite having found the defendant incompetent to stand trial. The court stated: “It is true that all persons are presumed to be sane but when one is adjudicated to be insane, the presumption is that he continues in that state until shown that sanity has returned. One cannot be tried, sentenced or executed while insane. Petitioner having been adjudicated mentally incompetent February 15, 1949, he is presumed to remain in that state until a proper hearing is held and he is adjudicated to be mentally competent . . . .” (Citations omitted.) (Accord: People v. Swallow (1969) 60 Misc. 2d 171 [301 N.Y.S.2d 798, 801-802]; Blunt v. United States (D.C. Cir. 1957) 244 F.2d 355, 360, fn. 17.)
*1494In the present case, defendant was adjudicated incompetent to stand trial on the basis of testimony from two psychiatrists that defendant was a delusional, paranoid schizophrenic. This is sufficient to create a presumption of continued insanity, People v. Berry, supra, 44 Cal.2d at page 433; In re Dennis, supra, 51 Cal.2d at pages 665-670, and a fortiori, a presumption of continued incompetency to stand trial.
A related reason for placing the burden of proof on the prosecution is that absent specific allocation by the Legislature, the party asserting the affirmative of an issue usually carries the burden of proving that assertion. (Evid. Code, § 500; Heesy v. Vaughn (1948) 31 Cal.2d 701, 708 [192 P.2d 753].) Thus, in civil competency proceedings a conservatee wishing termination of his conservatorship has the burden of proving by a preponderance of the evidence, “since the prior establishment ... of the conservatorship, [his] situation has changed so that he is no longer gravely disabled.” (Conservatorship of Everette M. (1990) 219 Cal.App.3d 1567, 1573 [269 Cal.Rptr. 182].) And, under workers’ compensation law, an employer wishing to terminate temporary disability payments has the burden of proving an injured worker’s disability has improved. (Brown v. Industrial Acc. Com. (1941) 44 Cal.App.2d 6, 8 [111 P.2d 931]; Contractors I. Exch. v. Indus. Acc. Com. (1925) 72 Cal.App. 350, 353 [237 P. 404].)
In its commentary on Evidence Code section 500, the Law Revision Commission identified several factors which it believed should influence the court’s allocation of the burden of proof. These factors are “the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.” (Cal. Law Revision Comm, com., 29B West’s Ann. Evid. Code (1966 ed.) § 500, p. 431, Deering’s Ann. Evid. Code, § 500 (1986) p. 215.) In my view, these factors weigh in favor of allocating the burden of proof to the People.
The parties’ knowledge concerning the particular fact in issue and the relative availability of the evidence to the parties were the principal factors which led our Supreme Court to hold the burden of initially proving incompetency should rest with the defendant. (People v. Medina, supra, 51 Cal.3d at p. 885.) The court expressed the view that:
“In determining the propriety of a particular proof allocation, a critical factor is the extent to which either party has access to the relevant information. As stated in Morrison v. California (1934) 291 U.S. 82, 89 [78 L.Ed.2d 664, 669-679, 54 S.Ct. 281], due process generally allows shifting to the defendant the burden of proving his affirmative defenses if, ‘upon a balanc*1495ing of convenience or of the opportunities for knowledge,’ the burden shift does not subject the defendant to hardship or oppression, [¶] Applying this principle to the present case, one might reasonably expect that the defendant and his counsel would have better access than the People to the facts relevant to the court’s competency inquiry .... The People, on the other hand, have little or no access to information regarding the defendant’s relationship with his counsel, or defendant’s actual comprehension of the nature of the criminal proceedings.” (51 Cal.3d at p. 885, citations omitted.) (See also Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems (1977) 45 U. Chi.L.Rev. 21, 54-56.)
Unlike the situation at the initial competency hearing, when a restoration of competency hearing is held the state has had custody and control over the defendant for a considerable period of time—almost two years in the. present case. Given the state’s 24-hour-a-day access to the defendant over a substantial period of time, state hospital personnel have had ample opportunity to observe, test and interview the defendant. At the restoration hearing it is the defense, not the prosecution, which is severely limited in its access to the type of evidence necessary to satisfy the burden of proof as to the defendant’s present competency. Indeed, the People concede in their brief in this appeal that the state “unquestionably [has] the most evidence likely to establish the propriety of the certification [of competency].”
The record in this case shows the People’s expert, Dr. Riley, spent between 30 and 40 hours with the defendant while the defendant was committed to Atascadero State Hospital and that Dr. Riley relied heavily on this exposure to defendant in rendering his opinion defendant was competent to stand trial. In contrast, defendant’s expert, Dr. Eisenberg, was able to spend only three hours with defendant in preparing his evaluation. I do not suggest this disparity in the time spent with defendant raises a due process issue or that it entitles Dr. Riley’s opinion to greater weight on the issue of competency than Dr. Eisenberg’s opinion. My point is simply that given the state’s greater opportunity to gather evidence on the issue of competency it is reasonable to put the burden of proving competency on the state at the restoration hearing.
Placing the burden of proving restoration of competency on the People promotes society’s interest that an incompetent defendant will not be compelled to stand trial in cases where the evidence is evenly balanced between competence and incompetence. It is not true, as the People contend, the risk of an erroneous finding of competency is no greater at the restoration hearing than at the initial competency hearing. At the initial competency hearing the prosecution is severely limited in its access to evidence on the issue of competency. But, at the restoration hearing the circumstances are *1496reversed and it is the defendant who is limited in terms of independent psychiatric evidence of his mental state. Added to this disadvantage is the tendency of the fact finder, knowing who bears the burden of proof, to view the burdened party’s evidence more skeptically as it comes in. (See United States ex. rel. Bilyew v. Franzen, supra, 686 F.2d at p. 1248.) Therefore, placing the burden of proof on the defendant at the restoration hearing would make it more difficult for the defendant to prove continued incompetency than to prove incompetency initially. The illogic of this result is clear given the fact the defendant comes before the court already adjudicated incompetent to stand trial and comes not of his own volition but on the contention of the state that it has restored the defendant’s competency to stand trial.
The final factor mentioned by the Law Revision Commission is the probability of the existence or nonexistence of the fact to be proved; in this case, competency to stand trial. At the initial hearing the defendant is presumed competent—a presumption clearly in keeping with probability. However, once the defendant has been adjudicated incompetent the probability is that he remains so. (See conc, opn., ante, pp. 1492-1494.) Accordingly, the burden of proof should follow the probabilities and rest with the People on the question of competency.
Two additional points raised by the People require only brief discussion. Accepting the People’s view would mean the certification of the state mental health facility attesting to defendant’s competency should be treated as presumptively valid and the burden should be on the defendant to convince the court the state’s assessment is wrong. The People cite no authority for the proposition its expert’s opinions are presumed correct by virtue of their being offered by the People. The law is clearly to the contrary. (See Pen. Code, § 1127b.) The People also contend if the presumption of competency contained in section 1369 does not apply to restoration hearings under section 1372 then, logically, none of the other procedural provisions of section 1369 apply either. Consequently, there are no procedural rules for a restoration hearing under section 1372. This argument is answered by People v. Murrell, supra, in which the court points out, “The hearing on the certification of competence provided for in section 1372 is ... a special proceeding.” (196 Cal.App.3d at p. 826.) Thus, any questions about procedures under section 1372 can be answered by applying the rules of practice prevailing in civil actions generally. (See Holman v. Toten (1942) 54 Cal.App.2d 309, 316 [128 P.2d 808].)
In conclusion, a rule requiring the People to bear the burden of proving restored competency best effectuates the intent of the Legislature and the interests of society. Under section 1369 of the Penal Code, once a doubt *1497arises in the mind of the trial judge as to the defendant’s competence to stand trial, it becomes the trial judge’s responsibility to ensure the defendant is competent before proceeding to trial. This responsibility arises irrespective of the views of the prosecutor or defense counsel as to the defendant’s competency. (Pen. Code, § 1368, subds. (a) and (b).) It is a responsibility “fundamental to an adversary system of justice.” (Drope v. Missouri (1975) 420 U.S. 162, 172 [43 L.Ed.2d 103, 113, 95 S.Ct. 896].) Strategic decisions by the prosecutor or defense counsel should not dictate the outcome. (See Pizzi, supra, U. Chi.L.Rev. at p. 57.) It follows, then, the determination of restored competency should not result from a failure of proof of continued in competency but from proof which satisfies the court it is trying a competent defendant. If, after reviewing the evidence presented, the court is undecided as to whether the defendant is competent then the adjudication of incompetence must stand. The court has the power to order additional evaluation and investigation and the director of the mental health facility may recertify the defendant as competent at any time in the future. Under this procedure, the People are afforded every opportunity to restore the defendant to competency and prove they have done so and at the same time the court meets its responsibility to “jealously guard” the defendant’s right to a fair trial. (Drope v. Missouri, supra, 420 U.S. at p. 173 [43 L.Ed.2d at P-114].)
Appellant’s petition for review by the Supreme Court was denied February 14, 1991. Mosk, J., and Broussard, J. were of the opinion that the petition should be granted.
All future references are to the Penal Code unless otherwise noted.
The majority of courts have held that once doubt about a defendant’s competence to stand trial has been raised, due process requires the prosecution to shoulder the burden of proving defendant competent. (See United States ex rel. Bilyew v. Franzen (7th Cir. 1982) 686 F.2d 1238, 1244-1245; People v. Bender (1960) 20 I11.2d 45, 53-54 [169 N.E.2d 328, 332]; United States v. Hollis (3d Cir. 1977) 569 F.2d 199, 205; United States v. DiGilio (3d Cir. 1976) 538 F.2d 972, 988; Brown v. Warden, Great Meadow Correctional Facility (2d Cir. 1982) 682 F.2d 348, 349; United States v. Makris (5th Cir. 1976) 535 F.2d 899, 906; Estock v. Lane (7th Cir. 1988) 842 F.2d 184, 188; United States v. Zovluck (S.D.N.Y. 1977) 425 F.Supp. 719, 721; United States v. Blohm (S.D.N.Y. 1984) 579 F.Supp. 495, 499; United States ex rel. Bornholdt v. Ternullo (S.D.N.Y. 1975) 402 F.Supp. 374, 377; State v. Heger (N.D. 1982) 326 N.W.2d 855, 858; Commonwealth v. Crowley (1984) 393 Mass. 393 [471 N.E.2d 353, 357-358]; Diaz v. State (Del. 1986) 508 A.2d 861, 863; People v. McCullum (1977) 66 I11.2d 306 [362 N.E.2d 307, 310]; State v. Bertrand (1983) 123 N.H. 719 [465 A.2d 912, 916]; State v. Pruitt (1984) 18 Ohio. App.3d 50 [480 N.E.2d 499, 506].)