Filed 4/2/13 P. v. Wolf CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID WAYNE WOLF,

Defendant and Appellant. B233289

(Los Angeles County Super. Ct. No. SA063264)

APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia Rayvis, Judge. Affirmed.

Joy A. Maulitz, under appointment by th e Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Lawrence M. Daniels and Allison H. Chung, De puty Attorneys General, for Plaintiff and Respondent.

_____________ ___________2 Appellant David Wayne Wolf appeals fro m the judgment of conviction following a jury trial in which he was co nvicted of one felony count of grand theft auto (Pen. Code, § 487, subd. (d)(1)) 1 (count 1) and two felony co unts of attempted carjacking (§§ 664/215, subd. (a)) (counts 2 and 3). He was sentenced to the middle term of two years six months on count 2, with the same sentence on count 3 and the middle term of two years on count 1, both to run concurre ntly. On the date of his sentencing on November 19, 2008, he received 713 days of custody and work credit. 2 Appellant contends the trial court vi olated his due proc ess rights by not conducting a competency hearin g postverdict and prior to se ntencing. We disagree and

affirm.

BACKGROUND On July 24, 2007, prio r to trial, defense counsel declared a doubt as to appellant’s competency to assist her, and stated that she had received an inconclusive psychologist’s report. The trial court suspended criminal proceedings and ordere d another psychologist to examine appellant pursuant to Evidence Code section 730. On August 14, 2007, the trial court found appellant incompetent to stand trial based upon the two reports. The court orde red the criminal proceedings to remain suspended and that appellant be committed to Patton Stat e Hospital until his competence

was restored. The court also ordered that the hospital was authorized to involuntarily administer antipsychotic medication to appella nt when and as prescribed by his treating psychiatrist. Patton State Hospital eventu ally declared appellant to be competent. On January 25, 2008, the trial court approved the certificate of mental competence and reinstated criminal proceedings.

1 All further statutory references are to th e Penal Code unless otherwise indicated.

2 We granted appellant’s request for relief fr om default for failure to file a timely notice of appeal. It would appear that appella nt has finished serving his sentence by now. However, because he raises constitutional cha llenges, we reach the merits of his appeal.3 After the jury was selected, on March 27, 2008, defense counsel submitted an emergency request for a conference with a psychologist regarding appellant’s competence, but stated that she had witnesses present and was willing to proceed. The court ordered the trial to procee d. Later that day, defense co unsel informed the court that the psychologist had evaluated appellant and found him to be competent. Appellant testified at trial, stating that on the date of the crimes he was hearing voices, he believed that people could read his mind and he thought he was in a “movie.” On April 4, 2008, the jury found appellant gu ilty on all three counts. 3 On the original date set for sentencing, April 21, 2008, defense counsel stated that she did not believe appellant was able to assi st in his defense, and asked to continue sentencing. Appellant, however, asked to be sentenced that da y and to represent himself. After the trial court granted appellant’s re quest to represent himself and appellant addressed the court, the court declared a do ubt as to appellant’s competence, suspended proceedings, reappointed defense counsel to represent appellant, and appointed two psychologists to evaluate appellant. In the meantime, the court deni ed two more requests by appellant for self representation. On September 17, 2008, the trial court no ted that both appointed psychologists had found appellant competent. The court rein stated proceedings and granted appellant’s request to represent himself. On October 28, 2008, appellant appeared for sentencing. He stated that he had been refusing medication, but that he was ready to be sentenced. Both the prosecutor and the trial court noted that appellant did not app ear to be lucid or awake. The court noted that while two psychologists had found appella nt to be competent for sentencing, the court found that appellant was not competent to represent himself at sentencing. The court revoked appellant’s pro per status, reap pointed defense counsel, and continued the sentencing hearing.

3 Because the issue on appeal involves appe llant’s posttrial competence, we do not set forth the evidence presented at trial.4 At the continued sentencing hearing on November 19, 2008, defense counsel stated that she had discussed sentencing optio ns with appellant, who was adamant that he wanted to be sentenced to prison and not to a treatment program. Defense counsel stated that she did not join in appellant’s request and that appellant “is, in fact, competent, though he might be mentally ill.” Th e court then procee ded to sentencing.

DISCUSSION Appellant contends the trial court violat ed his state and federal due process rights by failing to conduct a competency hearing prior to his sentencing. We disagree. I. Applicable Law. “Trial of an incompetent defendant vi olates the due process clause of the

Fourteenth Amendment to the United States Constitution [cita tion] and article I, section

15 of the California Constitutio n. Those protections are implemented by statute in California.” ( People v. Hayes (1999) 21 Cal.4th 1211, 1281.) “Our state statute provides that a person is mentally incompetent to stand trial if, as a result of mental disorder or developmental disability, the defe ndant is unable to understand the nature of the criminal proceedings or to assist counsel in the co nduct of a defense in a rational manner. (§ 1367.)” ( People v. Welch (1999) 20 Cal.4th 701, 737; § 1367, subd. (a).) The right to be both physically and menta lly present extends through sent encing. (§ 977, subd. (b); People v. Jones (1997) 15 Cal.4th 119, 157; People v. Rogers (2006) 39 Cal.4th 826, 847 [“The court’s duty to conduct a competency hearing may arise at any time prior to judgment”].) “‘When the accused presents substantia l evidence of incomp etence, due process requires that the trial court conduc t a full competency hearing.’” ( People v. Koontz (2002) 27 Cal.4th 1041, 1063.) Substantial evidence is “e vidence that raises a reasonable or bona fide doubt concerning the defe ndant’s competence to stand trial.” ( People v. Rogers, supra, 39 Cal.4th at p. 847; People v. Frye (1998) 18 Cal.4th 894, 952.) “Evidence of incompet ence may emanate from several s ources, including the defendant’s demeanor, irrational behavior, and prior ment al evaluations. [Citations.] But to be entitled to a competency hearing, ‘a defendant must exhibit more than . . . a preexisting5 psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.’” ( People v. Rogers, supra , 39 Cal.4th at p. 847.) If the evidence is not substantial, “[i] t is within the discretion of th e trial judge whether to order a competence hearing.” ( People v. Welch, supra , 20 Cal.4th at p. 742.) “A trial court’s

decision whether or not to hold a competence hearing is entitle d to deference, because the court has the opportunity to observ e the defendant during trial.” ( People v. Rogers,

supra , 39 Cal.4th at p. 847.) “‘“When a competency hearing has alrea dy been held and defendant has been found competent to stand tria l, however, a trial court need not suspend proceedings to conduct a second compet ency hearing unless it ‘i s presented with a substantial change of

circumstances or with new evidence’ casti ng a serious doubt on the validity of that finding. [Citations.]”’” ( People v. Taylor (2009) 47 Cal.4th 850, 864, quoting People v. Kelly (1992) 1 Cal.4th 495, 542–543.) II. The Evidence Did Not Require Another Competency Hearing. Appellant argues that the following factor s constitute substantia l evidence that a competency hearing shou ld have been conducted prior to his sentencing: (1) Both the trial court and the prosecutor noted that appella nt did not appear to be lucid or awake at the presentencing hearing on October 28, 2008 ; (2) appellant stated at the October 28, 2008 hearing, against his own interest, th at he was willing to submit to the maximum sentence, and made misstatements at the heari ng; (3) the trial court had been informed at

least three times after the verd ict that appellant was on suic ide watch at the jail; (4) the trial court knew that appellant was suffering fro m “a major mental illness” and that he was currently refusing his medications; and (5) a psychologist had testified at trial that appellant was a paranoid schizophrenic with bipolar disorder and did not appear to be malingering. We find appellant ’s arguments unpersuasive.

A. October 28, 2008 Hearing The prosecutor’s statement at the October 28, 2008, presentence hearing that “I’m not quite sure the defendant is awake or is lucid at the time. It looks like he’s go [sic] ready to go to sleep,” was not a change in circumstance casting doubt on the previous6 finding of competency. The prosecutor’s statement merely indicated that appellant appeared drowsy. Although appellant had stat ed that he was refusing his medication, the trial court observed that appellant appeared to be medicated based on his drowsiness in court: “I asked Mr. Wolf if he was medicated because he appears to be medicated.” “[T]the mere fact that the petitioner was taki ng medications during hi s trial does not raise a ‘bona fide doubt’ as to his comp etence to stand trial.” (See Contreras v. Rice (C.D. Cal. 1998) 5 F.Supp. 2d 854, 864 [citing Sturgis v. Goldsmith (9th Cir. 1986) 796 F.2d 1103, 1109–1110 [failure to present evidence of medica tion petitioner was taking or “how [the medication] might have affected hi s competence at trial” did not raise a bona fide doubt as to the petitioner’s competency to stand trial]; U.S. v. Fernandez (9th Cir. 2004) 388 F.3d 1199, 1251 –1252 [finding no substantial evidence of in competence where trial court commented on defendan t’s sleepiness apparently caused by medication].) In any event, appellant ther eafter participated in the proceedings and answered the court’s questions. Appellant next asserts that he miscalcu lated the maximum term of imprisonment at the October 28, 2008 hearing. But he made clear that his calculation was based on “what [he] read in the Penal Code book.” As the People note, this shows that appellant had the presence of mind to read the Pena l Code in preparation for his sentencing hearing. Appellant also points to his statemen t, in response to the trial court’s revocation of his right to self-representation, “I object to this on the grounds that of [sic] violation of time restraints before trial, I wasn’t able to file the paperwork.” The court then pointed out that trial had already taken place. A defendant’s lack of technical legal knowledge is irrelevant to any competency inquiry. (See People v. Blair (2005) 36 Cal.4th 686, 718.) And appellant had coherently responded to the trial cour t’s question of whether he wanted a lawyer: “THE COURT: Mr. Wol f, are you sure you don’t want to have a lawyer? [¶] THE DEFENDANT: Positive.” Appellant also argues that his “self-defea ting behavior” of stating that he was willing to accept the maximum term of impr isonment was new eviden ce casting doubt on the trial court’s prior finding of competency. We reject this argument. “[A] possibly7 self-destructive emotional approach to self-re presentation does not equate to substantial

evidence of inco mpetence to stand trial.” ( People v. Halvorsen (2007) 42 Cal.4th 379, 406; see also People v. Lewis (2008) 43 Cal.4th 415, 526 [“ a defendant’s preference for the death penalty does not invari ably demonstrate incompetence”]; People v. Blair,

supra , 36 Cal.4th at p. 718 [“we ha ve rejected the notion that a defendant’s choice not to present a defense, even at the penalty phase, amounts to substantial evidence of incompetence”].) If anything, appellant’s willingness to receive the maximum term of imprisonment indicated his awareness of wron gdoing: “I’m ready to accept everything that’s coming to me.”

B. Suicide Watch Appellant also asserts that being on suicide watch at the jail was a new circumstance alerting the trial court that he was no longer competent. But on September 17, 2008, appellant expressly told the trial court that he was not suicidal: “Now, the situation is I am in county jail, they have me on suicidal watch, but I am not suicidal. I told them I would sue them, because they ha d to protect me.” Additionally, our Supreme

Court has found that evidence of a defendant ’s “death wish” and pl anned suicide attempt do not amount to substantial evidence of incomp etence requiring a competency hearing. (See People v. Ramos (2004) 34 Cal.4th 494, 508–511.)

C. Mental Illness Appellant also points out that he was suffering from a major mental illness and that a psychologist had testifie d at trial that he was a paranoid schizophrenic with bipolar disorder and did not appear to be malingeri ng. But “even a history of serious mental illness does not necessarily constitute substan tial evidence of incompetence that would require a court to declare a doubt concerning a defendant’s competence and to conduct a hearing on that issue.” ( People v. Blair, supra, 36 Cal.4th at p. 714; People v. Ramos,

supra, 34 Cal.4th at pp. 508–511 [defendant’s death wish, history of psychiatric treatment, planned suicide attempt, propens ity for violence, and psychiatric testimony that defendant was physically abused as a child and suffered from a paranoid personality8 disorder did not constitute s ubstantial evidence of incomp etence requiring court to conduct a competen cy hearing].) Appellant asserts that certain of his ow n testimony at trial was “nonsensical and disturbing.” Even assuming appellant is corr ect that his testimony indicated some form of mental illness, our Supreme Court has repe atedly recognized that “more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation]. . . .’” ( People v. Halvorsen, supra , 42 Cal.4th at p. 403, quoting People v. Laudermilk (1967) 67 Cal.2d 272, 285.) Despite his own testimony and the other factors discussed above, the record does not show that appellant lacked an understanding of the nature of the proceedings or the ability to assist in his defense. ( People v. Koontz, supra , 27 Cal.4th at p. 1064.) Accordingly, we are satisfied the evidence was insufficient to require a reexamination of appellant’s competency before proceeding with sentencing.

DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

__________ _______________ _____, J. ASHMANN-GERST

We concur:

________________ _______________, P. J. BOREN

___________________ ____________, J. CHAVEZ