Does a defendant have a duty to resolve the question of his competence at the time of trial when the question was tendered by defense counsel after the verdict?

Defendant claims on appeal, however, that the trial court had a duty to resolve the question of his competence at the time of trial when the question was tendered by defense counsel after the verdict. We disagree. [201 Cal.App.3d 120] Section 1368 does not provide for a retroactive determination of a defendant's competence. Moreover, once defendant withdrew his new trial motion, the trial court had nothing upon which to act. A new trial may be granted to the defendant "upon his application." ( 1181) The court has no power to order a new trial on its own motion. ( 1181; People v. Rothrock (1936) 8 Cal.2d 21, 24, 63 P.2d 807; see also Witkin, Cal. Criminal Procedure, 573, p. 578.) Defendant's withdrawal of the motion came at a time when his sanity had been restored; nothing in the record suggests he was incompetent when he withdrew the motion.

Defendant relies on People v. Hale, supra, 44 Cal.3d 531, 244 Cal.Rptr. 114, 749 P.2d 769 for the proposition that the question of his incompetence, once brought to the attention of the trial court, cannot be abandoned. However, in Hale, the trial court expressed a doubt as to the defendant's possible present incompetence, but no section 1368 hearing was held. The Hale court asserted that once such a doubt arose, the issue could not be abandoned. Here, when the issue was brought to the court's attention, a competence hearing was held. The only issue not decided was defendant's previous mental competence.