In re Sims CA4/2

Filed 7/21/21 In re Sims CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re KAREN LEE SIMS

on Habeas Corpus. E075363

(Super.Ct.No. BLF003752)

OPINION
_____________________________________

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Richard A.

Erwood, Judge. Petition granted.

Michaela R. Dalton for Petitioner.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa

Torreblanca, Deputy Attorneys General, for Respondent.

Petitioner Karen Sims, a former attorney with serious mental illness of long

standing, was convicted of murdering her husband Henry Sims in 2006 and was

sentenced to prison for a term of 50 years to life. After her conviction and sentence were

affirmed on direct appeal in 2008, she petitioned for a writ of habeas corpus in the

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California Supreme Court in 2011, on the ground her conviction was invalid because she

was incompetent to stand trial. An order to show cause (OSC) was issued by the

Supreme Court, returnable in the Riverside County Superior Court, but was denied.

In 2016, petitioner filed another petition for writ of habeas corpus in the Supreme

Court on the same ground, with additional information about her postconviction mental

health problems as they related to timeliness. The California Supreme Court again issued

an OSC, this time returnable to this court. We granted the petition and remanded the

matter again to the superior court for an evidentiary hearing, where we specified that

counsel should present the testimony of Mr. Michael DeFrank, as well as any expert

witnesses or mental health professionals who were aware of defendant’s mental health

condition during the period between August and December 2006, or such other evidence

as may constitute substantial evidence of defendant’s incompetence to stand trial. (In re

Sims on Habeas Corpus (2018) 27 Cal.App.5th 197.) On remand, the court heard the

testimony of petitioner’s trial counsel, which it found lacking in credibility, and that of

petitioner, and denied the petition once again. This petition followed.

Respondent, the People, argue that the court properly found the testimony of

petitioner’s trial counsel lacked credibility and asserts that our previous remand order did

not require the superior court to readdress petitioner’s claim that she was incompetent to

stand trial. We grant the petition.

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 BACKGROUND

We take the factual and procedural history from our previous opinion, In re Sims,

supra, 27 Cal.App.5th at pages 200-203, which, in turn, incorporated information from

this court’s opinion in the direct appeal. (People v. Sims (Nov. 17, 2008, E042064)

[nonpub. opn.].)

“Defendant has a history of mental illness that includes at least one prior

hospitalization lasting two years and had manifested itself in violent knife assaults against

her husband and her daughter while the family lived in Colorado. After being released

from an extended psychiatric hospitalization in Colorado, the family moved to California

where defendant practiced immigration law.

“In 2005, when defendant’s daughter was home from medical school for the

summer, defendant behaved combatively and secretively, refusing to take her medication.

She was suspicious of conspiracies, convinced that she was God’s daughter fighting

demons, or the daughter of an alien fighting some sort of intergalactic war on earth. She

accused her husband of adultery, occult practices, and devil worship. Defendant also

accused her husband of carrying on with prostitutes and drugging her at night. She also

behaved erratically with her office staff and clients, and sometimes missed court

appearances.

“Things came to a head in September 2005, when there was an incident at Lake

Evans in Riverside. After the incident, defendant and her husband drove to Blythe,

where defendant shot her husband several times, killing him. A complaint was filed,

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charging defendant with murder and two firearm enhancements. [Citation.]” (In re Sims,

supra, 27 Cal.App.5th at p. 200.)

“On September 29, 2005, the trial court appointed a medical examiner, Dr. Kania,

to evaluate defendant, based upon her first appointed counsel declaring a doubt as to her

competence. The evaluation, dated November 29, 2005, concluded that defendant was

delusional and suffering from either schizoaffective or bipolar disorder, but that she was

able to understand the nature of the proceedings and was able to cooperate with the

examiner in a rational manner.” (In re Sims, supra, 27 Cal.App.5th at pp. 200-201.)

“Dr. Kania noted that defendant did not trust her attorney based on her belief that

counsel thought she was “crazy,” which could interfere with her willingness to cooperate

with counsel, but volunteered that it might not affect her ability to cooperate with another

attorney. He concluded she was competent to stand trial but cautioned that her condition

could deteriorate if she continued to decline medication. The trial court found defendant

competent to stand trial.

“In May 2006, defendant retained Attorney Michael DeFrank to represent her. On

or about August 9, 2006, defendant made a motion to represent herself pursuant to

Faretta v. California (1975) 422 U.S. 806 [45 L.Ed. 2d 562, 95 S.Ct. 2525] because she

objected to her attorney’s in limine motion to exclude her statements to police. The

motion, styled as a motion to exclude her confession, was objectionable to defendant

because, while defendant admitted she discussed shooting her husband with investigators,

she denied it was a ‘confession.’

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 “Thereafter, Mr. DeFrank was designated advisory counsel, and defendant

withdrew in limine motions to exclude her confession and opposed admission of prior

similar acts pursuant to Evidence Code, section 1101, subdivision (b). The two prior acts

related to a 1992 butcher knife attack on her husband and a 1995 incident in which

defendant stabbed her daughter while having delusions about the ‘Second Coming,’

explaining she had to stab her daughter to insure the daughter would go to heaven

immediately and not suffer.” (In re Sims, supra, 27 Cal.App.5th at p. 201.)

“Defendant made bizarre statements during the hearing on her request to represent

herself and during trial.1 In her opening statement, she talked about the Greek word for

devil, the biblical story of Jezebel, and described her 25 years of marriage as ‘very

colorful’ and ‘a lot of joy.’ She denied killing her husband, asserted that he was alive

when the coroner’s photographs were taken, and proposed he was beaten and murdered

by someone else while defendant was in custody. She cross-examined the pathologist

about his experience with ‘[s]atanic ritual killings’ and torture. Alternatively, she

accused her husband of leading a double life, like Dr. Jekyll and Mr. Hyde, and claimed

he was killed by friends and associates he had known for 15 years. Defendant’s children

testified that defendant became suspicious and delusional when not taking her

medication.” (In re Sims, supra, 27 Cal.App.5th at pp. 201-202.)

1 The record is replete with bizarre statements by defendant. The fact we limit the
number of her delusional statements here is not intended as a comment on the
significance or relevance of other statements.

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 “According to his declaration [in support of the initial petition for writ of habeas

corpus], Mr. DeFrank noticed that defendant’s mental illness had been exacerbated by the

stress of trial, and he attempted to inform the court on two separate occasions that he had

a doubt as to her competence, but the court would not allow him to speak because he was

advisory counsel only. On August 24, 2006, defendant accused Mr. DeFrank of

conspiring with the deputy district attorney and relieved him of further advisory

position.” (In re Sims, supra, 27 Cal.App.5th at p. 202.)

“On August 28, 2006, defendant was found guilty of the murder of her husband

(Pen. Code, § 187, subd. (a)), and the jury made true findings on the gun discharge and

gun use allegations (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (d)). The

following day, on August 29, 2006, in a case that had been trailing the murder charges,

Mr. DeFrank, who represented defendant in the trailing matter, declared a doubt as to

defendant’s mental condition. Judge Erwood, [the same judge who presided over the

homicide trial], suspended proceedings in that case. [However, petitioner refused to

cooperate with a competence evaluation.] On October 25, 2006, Judge Erwood found

defendant to be competent to stand trial in the trailing case, but defense counsel requested

a trial on the issue, and that request was granted. On January 5, 2007, the People moved

to dismiss the charges in the trailing case before the competency trial was conducted.

“Defendant appealed her murder conviction, raising evidentiary, instructional, and

sentencing errors. At our request, the parties filed supplemental briefs on the issue of

whether defendant was competent to represent herself pursuant to Indiana v. Edwards

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(2008) 554 U.S. 164 [171 L.Ed. 2d 345, 128 S.Ct. 2379]. On November 17, 2008, we

affirmed in full. On February 25, 2009, the Supreme Court denied review.” (In re Sims,

supra, 27 Cal.App.5th at p. 202.)

On April 12, 2010, defendant filed her first petition for writ of habeas corpus in

the California Supreme Court, in propria persona. (In re Sims, S181881, Supreme Ct.

Mins., Sept. 14, 2011.) Her petition was accompanied by the declaration of her advisory

counsel and a copy of Dr. Kania’s evaluation conducted in November 2005. In the

declaration from petitioner’s advisory counsel, Mr. DeFrank offered his observations of

petitioner during her self-representation. He wrote that, due to his concerns, he had asked

to speak with the judge about petitioner’s competency, but was refused on the ground that

he was only advisory counsel. (In re Sims, supra, 27 Cal.App.5th at pp. 202–203.)

“On September 14, 2011, the Supreme Court issued an OSC, returnable to the

Riverside Superior Court. The People filed a return in the superior court on March 7,

2012, arguing that the petition was untimely, that the issue of defendant’s competence to

stand trial had been raised in the direct appeal, and there was substantial evidence to

support the trial court’s finding defendant was competent. The superior court denied the

petition.”

“On September 14, 2016, defendant filed her second petition for writ of habeas

corpus in the California Supreme Court. After soliciting an informal response from the

People, the Supreme Court issued an OSC why relief should not be granted, made

returnable in this Court.” (In re Sims, supra, 27 Cal.App.5th at p. 202.) In a published

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opinion, “[w]e granted the petition, and remanded to the superior court to appoint counsel

for defendant and hold an evidentiary hearing on whether there is substantial evidence of

defendant’s incompetence to stand trial between August and December 2006. (Id. at p.

211.) Specifically, we directed counsel to present the testimony of Mr. DeFrank, as well

as any expert witnesses or mental health professionals who were aware of defendant’s

mental health condition during the period between August and December 2006, or such

other evidence as may constitute substantial evidence of defendant’s incompetence to

stand trial.” (Ibid.)

At the evidentiary hearing2, that took place between September 6 and 12, 2020,

petitioner’s counsel presented the testimony of petitioner and Mr. DeFrank. Mr. DeFrank

testified that he represented petitioner in two cases in 2006: The first involved the

murder at issue and the second involved an assault on a peace officer. Judge Erwood had

presided over both matters, and the assault case trailed the murder charge. In the murder

proceeding, Mr. DeFrank asserted he attempted to inform the court of his doubt as to

petitioner’s competence in the murder case on two occasions after he had been relieved as

counsel of record and was acting as advisory counsel: The first attempt was made during

jury selection, when, during a recess and after petitioner had left the courtroom, he asked

if he could speak with Judge Erwood about an issue. Judge Erwood relayed to counsel

that he would not address Mr. DeFrank at that point because he was advisory counsel.

2 At the inception of the hearing, the People informed the court that the purpose
of the hearing was to decide whether Judge Erwood had prevented Mr. DeFrank from
declaring a doubt as to petitioner’s competence. This was incorrect.

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Mr. DeFrank did not recall if he specifically mentioned petitioner’s competency when he

asked to speak with the judge, but that was his intent.

The second attempt to address the court about petitioner’s competency took place

towards the end of the prosecution’s case. He became concerned when it appeared

petitioner was not going to present any evidence in her defense, made a motion to dismiss

the case based on the prosecution’s “fraud,” and had just completed an “essentially

nonsensical” cross-examination of the coroner and the lead detective. He told the court

clerk that he needed to speak with the judge about petitioner’s competency. The clerk

said she would let the judge know, left the courtroom, and returned a few minutes later to

inform Mr. DeFrank that the judge would not meet with him because he was only

advisory counsel. Mr. DeFrank did not put this request on the record because the court

had made a similar ruling previously and it would be futile.

Meanwhile, after the verdict in the homicide matter, Mr. DeFrank made an

appearance in petitioner’s assault case, where he raised a doubt as to petitioner’s

competency on the record, before Judge Erwood. The judge ordered an evaluation but

petitioner refused to be evaluated, so no report was prepared and the court found

petitioner was competent. The prosecutor moved to dismiss the assault charges, and the

court granted the motion over Mr. DeFrank’s opposition.

On cross-examination, the prosecutor elicited that Mr. DeFrank’s intent was to

obtain a new trial for petitioner and mental health treatment. The prosecutor also

impeached his testimony with the fact that, in 2008, he received a public reproval from

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the State Bar, based upon a misdemeanor drunk driving conviction, for which he was

required to fulfill certain conditions, but did not. He was subsequently disciplined by the

State Bar in 2010 for not fulfilling those conditions. In 2011, he was disciplined again

for not fulfilling those conditions. In 2014 or 2015, he stipulated to being disbarred for

the same violation and failure to fulfill conditions. However, the disciplinary

proceedings were initiated in November 20083, whereas the declaration he submitted

regarding his attempts to discuss petitioner’s deteriorating mental state was signed in July

2008.

Petitioner also testified at the hearing; she stated she was present in court when

Mr. DeFrank first expressed a doubt as to her competence, but she did not recall the

second attempt although she indicated she was present in the courtroom, contrary to Mr.

DeFrank’s testimony.

The trial court found that Mr. DeFrank was biased because he had an “axe to

grind” against the state, and his claims that he attempted to raise a doubt about

petitioner’s competency lacked credibility. The court also noted that petitioner had not

presented any new evidence at the hearing of her incompetence to stand trial in 2006,

although the court had refused to read the transcripts, and the petition included Dr.

3
The drunk driving incident underlying the disciplinary proceedings occurred in
2007, and the discipline followed in 2008.

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Kania’s competence evaluation from 2006. Moreover, the People’s return to the petition

did not dispute that petitioner was delusional.4

DISCUSSION

Respondent asserts in its return that the trial court correctly declined to give any

weight to the testimony of petitioner’s trial level advisory counsel because of his bias,

and because petitioner, a person suffering from delusions of long standing, contradicted

his testimony regarding the second attempt to express a doubt about petitioner’s

competence. Respondent asserts that the trial court’s finding as to Mr. DeFrank’s

credibility was proper, and justified the denial of relief, in the absence of any other

evidence that would raise a doubt as to petitioner’s competence. We disagree.

A. Petitioner’s Competency

This matter, comprising multiple petitions for writ of habeas corpus, centers on

one thing: whether petitioner was competent to stand trial. Petitioner’s advisory counsel

asserted he doubted her competence during jury selection and after the verdict, attempted

to inform the court of his doubt, but the court declined to address counsel because he was

advisory only. What is not disputed is that in the then-concurrently trailing assault

matter, where the same attorney was still the attorney of record for petitioner, he did

4 Prior to hearing witness testimony, the People indicated they had no witness to
proffer as a mental health expert. Additionally, Mr. DeFrank named the court clerk to
whom he had made his request to speak with the judge, so the People could have called
the clerk as a witness to impeach the testimony. Interestingly, although the purpose of
the hearing was to memorialize counsel’s attempts to inform the court of his doubt as to
petitioner’s competence, when asked at the evidentiary hearing what the clerk told him
after relaying counsel’s message to the judge, the prosecutor objected on hearsay
grounds.

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make an on-the-record assertion of his belief, but the trial court—the same judge who

presided over the homicide trial—concluded petitioner was competent when she refused

to cooperate with the competence evaluation. This, despite the earlier competency report

that substantiated petitioner’s diagnosis, acknowledged she was delusional, and warned

that her mental state would deteriorate if she refused medication. Which she did. When

counsel demanded a jury trial on the competence question in the pending assault case, the

prosecutor dismissed that case.

After numerous attempts to litigate the question of whether the advisory counsel in

the homicide case was prevented from expressing his doubt as to petitioner’s

competence, we remanded for an evidentiary hearing. At that hearing, years after the

events in question, a new judge, acting as referee, heard the testimony of Mr. DeFrank,

petitioner’s advisory counsel, who affirmed the statements made in the declaration he

provided in support of petitioner’s initial petition for writ of habeas corpus.

The referee, however, refused to consider the transcripts of the trial (which had

been summarized for convenience) and denied relief, limiting its review to the issue of

whether Mr. DeFrank had been precluded from expressing his doubt as to petitioner’s

competence. The referee did not consider whether there was substantial evidence of

petitioner’s incompetence before the trial court in the homicide case or whether the

failure to conduct competency proceedings pursuant to Penal Code section 1368 deprived

petitioner of due process. We return to those questions here.

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 “‘Under section 1368, if a “doubt arises in the mind of the judge” as to the

defendant’s mental competence, the judge must “state that doubt in the record” and solicit

defense counsel’s opinion on the matter. [Citation.] In such a case, “[i]f counsel informs

the court that he believes the defendant is or may be mentally incompetent,” the court

must order a hearing. [Citation.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-

1112.) “A trial court is required to conduct a competence hearing, sua sponte if

necessary, whenever there is substantial evidence of mental incompetence.” (People v.

Howard (1992) 1 Cal.4th 1132, 1163 [abrogated on other grounds in People v. Rhoades

(2019) 8 Cal.5th 393], citing People v. Pennington (1967) 66 Cal.2d 508, 518.)

Where the court does not declare a doubt, Penal Code section 1368 does not

require the court to conduct a hearing based solely on counsel’s opinion. (People v.

Howard, supra, 1 Cal.4th at p. 1164.) Nevertheless, a hearing is required whenever there

is substantial evidence of incompetence, whatever the source. (Ibid.) Whether or not

attorney Mr. DeFrank attempted to bring to the court’s attention the petitioner’s

deteriorating state is a red herring because whether or not counsel makes a formal, on-

the-record expression of doubt is irrelevant: it was for the trial court to express the doubt,

based on substantial evidence of incompetence.

Here, the trial court presiding over the trial was well aware of petitioner’s

extensive mental health history, as well as familiar with the findings of Dr. Kania in

connection with an earlier Penal Code section 1368 proceeding in the same matter,

including Dr. Kania’s admonishment about the likelihood she would become incompetent

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if she refused to take her medication (which she did). The trial court, presiding over both

the homicide case and the trailing assault matter, had observed firsthand the petitioner’s

ludicrous attempt at self-representation. The court was also aware that in a concurrently

pending felony matter, the same attorney, who was still counsel of record for the

petitioner in that matter, did express his doubt as to her competence, and, after the trial

court found her competent, demanded a jury trial on the question. The court could not

pretend to be unaware of the deteriorating state of petitioner’s mental health.

The real question before us is not whether there was substantial evidence to

support Mr. DeFrank’s statement—both in his declaration in 2008 and at the hearing on

the instant petition in 2020—that he attempted to initiate competency proceedings. The

real question is whether petitioner’s right to due process was violated by the trial court’s

refusal to initiate proceedings to determine her present competence where, as we have

said, even to a casual observer, the manner in which defendant conducted her defense

was not rational. (In re Sims, 27 Cal.App.5th at p. 209.)

Mr. DeFrank’s statement regarding attempts to inform the court of his doubt as to

petitioner’s competence would be more relevant if petitioner had maintained a stoic

presence during the trial, and had not behaved in a floridly delusional manner in trial,

before both court and jury. (See People v. Samuel (1981) 29 Cal.3d 489, 503

[“[e]vidence that a defendant can obediently walk into the courtroom and sit quietly

during the trial does not constitute substantial proof of competence”]; People v. Sundberg

(1981) 124 Cal.App.3d 944, 956.) The trial court had its own observations to rely upon.

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 Nevertheless, before we address this question, we review the matters raised in the

current writ petition vis-à-vis the conduct of the evidentiary hearing. In doing so, we

follow well settled rules. “A habeas corpus petition is a collateral attack on a

presumptively valid judgment, thus “‘the petitioner bears a heavy burden initially to

plead sufficient grounds for relief, and then later to prove them.’”” (In re Lewis (2018) 4

Cal.5th 1185, 1191, quoting In re Price (2011) 51 Cal.4th 547, 559.) The standard of

proof is preponderance of evidence. (In re Cudjo (1999) 20 Cal.4th 673, 687; see also In

re Bacigalupo (2012) 55 Cal.4th 312, 333.) “Because the referee observes the demeanor

of the witnesses as they testify, we generally defer to the referee’s factual findings and

‘give them great weight’ [if supported by] substantial evidence.” (Bacigalupo, at p. 333.)

However, these findings are not binding. “Ultimately, this court must make the findings

necessary to resolve petitioner’s claim.” (In re Lewis, supra, at p. 1191, citing In re

Thomas (2006) 37 Cal.4th 1249, 1256–1257.)

The ultimate question in this case is whether substantial evidence of a change of

circumstances in petitioner’s mental condition had been established, requiring the trial

court to suspend proceedings pursuant to Penal Code section 1368. “‘When a judge’s

attention is called to the issue of incompetency or he suspects the possibility, then he has

the duty to determine whether there is substantial evidence to require the full hearing. As

to the nature of proof which is necessary in order to constitute the substantial evidence

necessary to give rise to the constitutional right to a hearing on present sanity, the

evidence must be such that he is incapable because of mental illness of understanding the

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nature of the proceedings against him or of assisting in his defense. And once such

substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how

persuasive other evidence may be. Testimony of prosecution witness or of the court’s

own observation of the accused may be to the contrary, yet ‘when the defendant comes

forward with substantial evidence of present mental incompetence, he is entitled to a

[Penal Code] section 1368 hearing as a matter of right.’ [Citation.]” (People v.

Sundberg, supra, 124 Cal.App.3d at p. 955.)

“As a general rule, once a defendant has been found competent to stand trial, a

trial court may rely on that finding absent a substantial change of circumstances.”

(People v. Rodas (2018) 6 Cal.5th 219, 223.) “But when a formerly incompetent

defendant has been restored to competence solely or primarily through administration of

medication, evidence that the defendant is no longer taking his medication and is again

exhibiting signs of incompetence will generally establish such a change in circumstances

and will call for additional, formal investigation before trial may proceed.” (Ibid.)

The conviction of an accused person while he is legally incompetent violates due

process. (Pen. Code, § 1367; Pate v. Robinson (1966) 383 U.S. 375, 378 [15 L.Ed.2d

815, 818, 86 S.Ct. 836]; People v. Hale (1988) 44 Cal.3d 531, 539; People v. Laudermilk

(1967) 67 Cal.2d 272, 282.) The error is jurisdictional in the sense the court lacks the

power to render judgment in such a case. (People v. Laudermilk, supra, 67 Cal.2d at

p. 282; People v. Sundberg, supra, 124 Cal.App.3d 944, 956.)

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 Here, petitioner previously had been evaluated to determine her competency in the

early stages of the homicide prosecution. Dr. Kania confirmed her psychiatric diagnosis

and actually concluded at that time that petitioner was unable to cooperate with her

defense attorney. (In re Sims, supra, 27 Cal.App.5th at pp. 200-201.) Yet he concluded

she was competent then because she was able to cooperate with him, the examiner, and

speculated that she might be able to cooperate with another attorney. (Id. at p. 201.) By

itself, this statement somewhat undermines Dr. Kania’s ultimate conclusion that she met

the “minimum legal criteria” to stand trial, where the report confirmed she was unable to

assist trial counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1369,

subd. (a)(2).) It is undisputed that the defense she proffered acting as her own counsel

was not rational.

Nevertheless, Dr. Kania expressly cautioned that he had “concerns that her

condition may deteriorate now that she is no longer taking her medication in the jail” and

that “[s]hould her condition deteriorate, it is quite likely that she would become not trial

competent.” As predicted, her mental condition continued to deteriorate and dissemble in

front of the entire courtroom, in a manner that is even apparent from a cold appellate

record.

The petition alleged that around the time the verdict was reached in the homicide

case, advisory counsel, Mr. DeFrank, attempted to inform the court of his doubt as to her

present competence for the second time. He testified that in the homicide case, the trial

court refused to address him directly because he was not attorney of record. He also

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testified that at the same time, in the trailing assault case, where he was still attorney of

record, he did put his doubt on the record and the trial court summarily determined

petitioner was competent. In our prior opinion, we were concerned that the refusal to

address Mr. DeFrank violated petitioner’s due process rights.

But the issue seems to have taken on a life of its own and this writ proceeding has

strayed from being a question of whether the trial court was presented with substantial

evidence that petitioner was incompetent to a question involving her advisory counsel’s

motives and bias. In our prior decision, we stated, “The critical question posed in the

petition—the question which no doubt caused our Supreme Court to twice issue an

OSC—is whether the trial court erred in not suspending proceedings for further

examination of defendant’s competence to stand trial, based on her decompensated

mental condition. This issue is not barred by our prior appeal, because it grounded on

information outside the appellate record (the declaration of Mr. DeFrank) relating to

events that occurred after the court granted defendant’s Faretta motion.” (In re Sims,

supra, 27 Cal.App.5th at p. 207.)

We return to that central question after addressing questions posed in the Return.

1. Credibility of Mr. DeFrank’s Testimony.

Petitioner argues that at the evidentiary hearing, the court improperly found Mr.

DeFrank’s testimony to be not credible. The hearing judge found Mr. DeFrank had a

motivation for bias against the State of California, based on his disbarment by the State

Bar of California. The hearing judge considered records of the disciplinary proceedings

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showing Mr. DeFrank failed to comply with conditions requiring him to submit to

discipline and drug and alcohol testing. Ultimately, in April 2015, he was disbarred

following an October 2014 stipulation to that effect.

The abuse of discretion test applies when a judicial determination concerns the

admissibility of evidence. (People v. Rowland (1992) 4 Cal.4th 238, 264.) It is the

province of the trier of fact to make credibility determinations respecting witness

testimony, and we are precluded from reweighing credibility. “‘We do not reweigh

evidence or reevaluate a witness’s credibility.’” (People v. Houston (2012) 54 Cal.4th

1186, 1215, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a

different point in People v. Rundle (2008) 43 Cal.4th 76, 141.)

The information about the disbarment proceedings offered to impeach Mr.

DeFrank may have been intended to discredit his testimony at the hearing, but that

testimony merely repeated what he stated in his declaration in July 2008, before any

disciplinary proceedings were undertaken. No attempt was made to impeach or refute the

statements in the declaration, which are corroborated by circumstantial evidence of Mr.

DeFrank’s concurrent statement of doubt, made on the record, as to petitioner’s

competence, in the trailing assault case.

The only contradiction of the statement case was through the testimony of the

petitioner, who testified she was present in the courtroom on that occasion (at a time Mr.

DeFrank testified she had been escorted from the courtroom) and did not hear Mr.

DeFrank make a request to speak to the judge. This statement, by a petitioner with a long

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history of delusions, does not undermine the declaration Mr. DeFrank made in his

original declaration.

Thus, even if we concluded that Mr. DeFrank’s testimony at the hearing was

impeached, this conclusion would not undermine the statements made under oath in the

declaration, and, most significantly could not operate to relieve the trial court from

considering petitioner’s behavior in the courtroom, which it had observed first hand.

Coupled with the knowledge she was not taking medication, petitioner’s behavior and

irrational defense at her trial was substantial evidence of changed circumstances requiring

further evaluation of her competence, even without any expression of doubt by her

advisory counsel.

Petitioner also refers to Mr. DeFrank’s expression of doubt as to petitioner’s

competence before the initiation of any disciplinary proceedings by raising the issue in

the trailing assault case. This is undisputed. Mr. DeFrank did express a doubt as to

petitioner’s competence on the record and before any of the events that could color his

motives or bias had occurred. The verifiable information about Mr. DeFrank’s

expression of doubt as to petitioner’s competence in the pending assault case actually

corroborates his statement in the declaration—as well as at the evidentiary hearing—that

he attempted to express a doubt as to her competence.

Further, the significance of the People’s decision to dismiss that assault case rather

than go through a competence trial, as Mr. DeFrank had demanded on petitioner’s behalf

when the trial court found petitioner was competent, is not lost on us. Suspending

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proceedings in the assault case would mean automatic suspension of proceedings in the

homicide case, and risking a retrial of the homicide charge, unless it could be said that

petitioner was competent in one case, but not in the concurrently pending case.

We have previously noted that even to a casual observer, the manner in which

defendant conducted her defense was not rational. (In re Sims, 27 Cal.App.5th at p. 209.)

It was for the court to raise a doubt as to petitioner’s competence, even without input

from counsel. (People v. Howard, supra, 1 Cal.4th at p. 1164.) The trial court’s finding

that petitioner was competent in the trailing assault case was not supported by substantial

evidence, given the court’s awareness of her bizarre conduct in the homicide trial, and its

duty to declare a doubt as to competence cannot be delegated to advisory counsel. Penal

Code section 1368 compels a trial court to suspend proceedings whenever a doubt as to

competence arises. It does not excuse a court’s failure to do so because advisory counsel

has not expressed a doubt on the record.

Petitioner next contends that Judge White improperly considered some of Mr.

DeFrank’s testimony as speculative. “He speculated on various occasions as to the

defendant’s motivation in several areas of his testimony.” The abuse of discretion test

applies when a judicial determination concerns the admissibility of evidence. (People v.

Rowland (1992) 4 Cal.4th 238, 264.) But it is really irrelevant what Mr. DeFrank’s

interpretation of petitioner’s behavior was, speculative or not, for two reasons: First,

Penal Code section 1368 contemplates that counsel will express a doubt based on

observations, which evoke a “belief” that his or her client is incompetent. The statute

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therefore expressly contemplates subjective belief. Second, the record of the appeal,

including the litany of bizarre assertions and motions by petitioner, speak for themselves;

a trial judge witnessing petitioner’s performance in her own defense had a duty to

intervene to protect her right to a fair trial. At an evidentiary hearing, where a referee has

refused to burden itself with reviewing the record, a determination that counsel’s

testimony is speculative is not supported by substantial evidence.

Moreover, Mr. DeFrank’s testimony as to his observations (petitioner decided not

to “dress out” during trial [i.e., wore prison clothing]; had pictures of cats at her seat; and

that she objected to the characterization of her statements to the police as a

“‘confession’”) were not speculation, although his subjective conclusion from these

observations may have been opinion giving rise to his belief she was incompetent. Mr.

DeFrank did not claim to have any actual knowledge of petitioner’s motivations in these

instances, only that he apparently found them indicative of her mental state. These

observations were made in open court for all to see and Penal Code section 1368

expressly provides for counsel to relay this information to the court.

To give counsel’s testimony little weight as “speculative” misses the point of

competency proceedings. It is the obligation of the court to suspend proceedings

pursuant to Penal Code section 1368 if the court doubts the defendant’s competence.

Counsel has no obligation to bring the issue to the court’s attention, although frequently

that is the means by which the court becomes aware of circumstances that would give rise

to a doubt, especially in the case of a stoic defendant. But where the defendant acts as

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her own attorney, and the court is sitting ringside in what is devolving into a circus, the

court cannot simply ignore its own observations, and avoid responsibility for depriving a

defendant of a fair trial.

Judge Erwood had knowledge that defendant was not taking medication for her

mental illness of longstanding and knew that her mental state would deteriorate. Seeing

first-hand the irrational defense she presented and other conduct in the courtroom (such

as her statements that the People had not proven her husband was dead, that the bodies

had been switched, etc.), the court was aware of changed circumstances giving rise to a

doubt as to her competence. The court had a duty to insure petitioner’s right to a fair

trial.

Thus, even if we completely reject Mr. DeFrank’s testimony at the 2020

evidentiary hearing, we cannot ignore the fact that the trial judge to whom Mr. DeFrank

attempted to express his doubt was present throughout the trial and observed for himself

her irrational defense. Seemingly a judge presiding over a lengthy trial and a trailing

companion case, aware of petitioner’s diagnoses and previous commitment pursuant to

Penal Code section 1368, in addition to her previous hospitalization, should not have shut

his eyes to her deteriorating condition. Notwithstanding any finding as to Mr. DeFrank’s

credibility, there was substantial evidence of changed circumstances as to petitioner’s

competency giving rise to an affirmative duty on the part of the trial judge to express a

doubt as to her competence, with or without an expression of doubt by advisory counsel.

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 Altogether, the referee Judge White found, “There was no evidence in the record

at all that as advisory counsel Mr. DeFrank declared a doubt as to the competency of the

defendant during the course of the jury trial.” We are not bound by this finding. Further,

Judge White noted there was no testimony from anyone else, including the trial judge, the

clerk or other third parties, preventing the court from making a “finding that there was

any other evidence that was presented that may constitute substantial evidence of the

defendant’s incompetence to stand trial . . . .” While petitioner’s counsel called the two

witnesses, the prosecutor opted to call none to refute Mr. DeFrank’s statements in the

declaration. Nevertheless, the original petition that gave rise to the OSC included Dr.

Kania’s report, and counsel provided a factual summary of evidence from the trial record

that supported a determination that petitioner’s competence had deteriorated. In

determining that evidence does not exist to show that advisory counsel Mr. DeFrank

made such an attempt, the referee ignored the fact counsel’s declaration did not suffer

from the same impeachment and that the testimony corroborated a prior consistent

statement. The referee also ignored other objective evidence of her incompetence.

2. Entitlement to Relief on the Trial Record.

Petitioner contends that even if Mr. DeFrank’s testimony was properly

disregarded, the trial record itself entitles her to relief. As pointed out herein, our

direction to the superior court on remand from In re Sims, supra, included considering

not just whether Mr. DeFrank had attempted to declare a doubt as to petitioner’s

24
competency, but any other substantial evidence of defendant’s incompetence to stand

trial.

We therefore return to the question of whether there was substantial evidence of

petitioner’s incompetence on the record. “‘Upon the trial judge rests the duty of seeing

that the trial is conducted with solicitude for the essential rights of the accused.’” (People

v. McKenzie (1983) 34 Cal.3d 616, 626 [overruled on a different point in People v.

Crayton (2002) 28 Cal.4th 346, 365], quoting Glasser v. United States (1942) 315 U.S.

60, 71 [86 L.Ed. 680, 699, 62 S.Ct. 457].) In fact, even in situations where the trial court

confronts ineffective representation of an accused by counsel, “a trial court has a duty to

remove counsel even over the defendant’s objection where other measures have failed, in

cases of “‘obviously deficient performance,’” such as when counsel refuses to participate

in the trial. [Citation.]” (People v. Woodruff (2018) 5 Cal.5th 697, 729.)

Likewise, when confronted by a self-represented defendant presenting an irrational

defense and behaving in a manner consistent with a person whose competence is

doubtworthy, especially where the court has been advised that defendant would become

incompetent if she continued to refuse medication, the trial court had an affirmative duty

to step in and appoint counsel, or to suspend proceedings for a competency evaluation

based on its own observations, lest the judgment be reversed.

Even disregarding whether evidence supported Mr. DeFrank’s claim he attempted

to alert the trial court to petitioner’s declining competency, adequate evidence existed

before the trial judge and on the trial record to support a finding, during trial, that

25
petitioner was incompetent. In fact, this court cited the primary controlling case, People

v. Murdoch (2011) 194 Cal.App.4th 230 (Murdoch), at length, along with record

evidence in In re Sims, supra, before remanding to the superior court for an evidentiary

hearing. The superior court appears to have ignored the case, as well as a more recent

case by our Supreme Court, People v. Rodas, supra, 6 Cal.5th 219, and declined to

address the analysis of either precedent when invited to do so on the record by appointed

counsel.

The standard of competence to stand trial is well established: “A defendant is

competent to stand trial if he or she is able to understand the nature of the proceedings

taken against him or her and to assist counsel in the conduct of a defense in a rational

manner. [Citation.] Where the defendant is representing himself or herself, the standard

of competence is the same: whether the defendant ‘“is able to understand the nature and

purpose of the proceedings taken against him and to conduct his own defense in a rational

manner.”’ [Citation.]” (In re Sims, supra, 27 Cal.App.5th at p. 208.) “‘“Evidence of

incompetence may emanate from several sources, including the defendant’s demeanor,

irrational behavior, and prior mental evaluations.”’ [Citations.]” (Ibid.) We went on to

note that “[t]he statutory scheme does not require that the evidence of incompetence be

presented to the court by means of any particular individual or through any particular

channel. Thus, advisory counsel should be permitted to declare a doubt as to his or her

client’s competence. [Citation.]” (Ibid.) What we did not address at that time was

26
whether there was substantial evidence of petitioner’s incompetence to compel the trial

court, sua sponte, to express a doubt.

In Murdoch, “the reviewing court based its decision on ‘“all the relevant facts in

the record.”’” (Murdoch, supra, 194 Cal.App.4th at p. 238) That record included

evidence of defendant’s long history of severe mental illness and the court’s knowledge

of the fact that the defendant had discontinued his medication, which would make him

decompensate. (Ibid) Those are almost the identical circumstances present here, as we

recognized in In re Sims, supra, where we stated that “the judge was aware of

defendant’s long history of severe mental illness, the fact she was not compliant with her

medication, and that Dr. Kania [the examining medical expert] had predicted this would

make her decompensate. Additionally, the court was confronted with objectively

observable evidence of defendant’s bizarre legal defense and heard her statements in

open court. Even to a casual observer, the manner in which defendant conducted her

defense was not rational.” (In re Sims, supra, 27 Cal.App.5th at p. 209.)

In Rodas, the California Supreme Court adopted the same reasoning, declaring,

“[b]ut when a formerly incompetent defendant has been restored to competence solely or

primarily through administration of medication, evidence that the defendant is no longer

taking his medication and is again exhibiting signs of incompetence will generally

establish such a change in circumstances and will call for additional, formal investigation

before trial may proceed. In the face of such evidence, a trial court’s failure to suspend

proceedings violates the constitutional guarantee of due process in criminal trials.

27
[Citation.]” (People v. Rodas, supra, 6 Cal.5th at p. 223.) There, at least, the trial court

asked the defendant how he was feeling when counsel expressed a doubt as to his

competence, something the trial judge in the present case did not, despite the bizarre

defense proffered by petitioner. Not so in the present case.

In Rodas, the court discussed the court’s duty in light of conflicting evidence on

the question of competence: “When faced with conflicting evidence regarding

competence, the trial court’s role under Penal Code section 1368 is only to decide

whether the evidence of incompetence is substantial, not to resolve the conflict.

Resolution must await expert examination and the opportunity for a full evidentiary

hearing. [Citation.] Had the issue of defendant’s competence been tried to the court

under Penal Code section 1369, the trial court might legitimately have weighed

defendant’s demeanor and the nature of his responses to the court’s questioning against

the experts’ reports and other available evidence relating to his condition. But in the face

of substantial evidence raising a doubt about defendant’s competence, defendant’s

demeanor and responses supplied no basis for dispensing with further inquiry.” (People

v. Rodas, supra, 6 Cal.5th at p. 234.)

The Supreme Court also noted that that the duty to suspend is not triggered by

information that substantially duplicates evidence already considered at an earlier, formal

inquiry into the defendant’s competence, and that when faced with evidence of relatively

minor changes in the defendant’s mental state, the court may rely on a prior competency

finding rather than convening a new hearing to cover largely the same ground. (People v.

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Rodas, supra, 6 Cal.5th at pp. 234-235.) In this respect, the court agreed that when a

defendant has already been found competent to stand trial, “‘a trial court need not

suspend proceedings to conduct a second competency hearing unless it “is presented with

a substantial change of circumstances or with new evidence” casting a serious doubt on

the validity of that finding.’” (Id. at p. 234, quoting People Jones (1991) 53 Cal.3d 1115,

1153.)

Here, there were more than “minor changes” in petitioner’s mental state; there was

substantial evidence as to her incompetence and inability to conduct a rational defense.

When substantial evidence demonstrates a reasonable doubt as to a defendant’s

competence and the trial court erred in not conducting a hearing to determine his

competence, the correct procedure is to reverse the judgment of conviction rather than

conduct a retrospective competency hearing test. (Murdoch, supra, 194 Cal.App.4th at p.

239; see also, People v. Rodas, supra, 6 Cal.5th at pp. 239-241 [discussing the

inadequacy of retrospective competency proceedings in many circumstances].) That is

the only appropriate course left, in light of the referee’s failure to consider the trial record

or Dr. Kania’s report in the evidentiary hearing.

Petitioner established changed circumstances affecting her competence both to

represent herself and to stand trial, of which the trial court was or should have been aware

and the referee should have considered. Even if Mr. DeFrank did not, as he testified in

the evidentiary hearing, attempt to express a doubt as to her competence in the homicide

case, he most certainly made a contemporaneous expression of doubt in the trailing

29
assault case before the same judge. Combined with the court’s own observations, and the

knowledge she was not taking medication, there was evidence of substantially changed

circumstances.

The trial court was therefore aware of changed circumstances raising a doubt as to

petitioner’s competence creating a situation in which she was convicted and sentenced

while incompetent. This was not a situation in which the court could consider petitioner

a malingerer who might be trying to infuse the proceedings with reversible error. Instead,

the trial court had knowledge of her mental illness, as well as the fact she refused to take

medication, and that these circumstances would lead to her incompetence. The failure to

suspend proceedings for an evaluation of her competency was a violation of her due

process rights. (People v. Rodas, supra, 6 Cal.5th at p. 223.)

DISPOSITION

We grant the petition and reverse the judgment of conviction. Defendant may be

retried on the charges for which she was convicted if she is presently competent to stand

trial.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.

We concur:

MILLER
J.

McKINSTER
J.

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