1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 
2

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.
3

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, 
4

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.’
5

“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.1In 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.
6

“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
7

(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 
8

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.
9

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.
11

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. 
12

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.
13

“‘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, onthe-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 
14

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.
15

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 
16

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.)
17

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 
18

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 
19

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 
20

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 
21

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 
22

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 
23

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.
24

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 
25

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 
26

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 
27

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. 
28

[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.
29

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 
30

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.