Filed 7/21/21; Certified for Publication 8/11/21 (order attached)
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
1 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.
2 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,
3 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.’
4 “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.
5 “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
6 (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
7 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.
8 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
9 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.
10 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.
11 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.
12 “‘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
13 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.
14 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
15 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.)
16 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
17 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
18 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
19 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
20 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
21 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
22 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.
23 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
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.
28 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
RAMIREZ P. J.
We concur:
MILLER J.
McKINSTER J.
30 Filed 8/11/21 CERTIFIED FOR PUBLICATION
ORDER CERTIFYING OPINION FOR PUBLICATION
THE COURT
The opinion in the above-entitled matter, filed on July 21, 2021, was not certified for publication in the Official Reports.
A request has been made, pursuant to California Rules of Court, rule 8.1120(a), for publication of the opinion. It appears that the opinion does meet the standard for publication as specified in California Rules of Court, rule 8.1105(c).
We therefore GRANT the request and ORDER that the opinion is certified for publication.
CERTIFIED FOR PUBLICATION RAMIREZ P. J. We concur: