Filed 11/25/15 P. v. Hayes CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


PEOPLE OF THE STATE OF                                               A136366
CALIFORNIA,
       Plaintiff and Respondent,                                     (San Francisco City & County
                                                                     Super. Ct. No. SCN 217763)
vs.
GREGORY HAYES,
         Defendant and Appellant.


         This appeal presents the question whether at any time after defendant and
appellant Gregory Hayes was restored to competency by Napa State Hospital there was
substantial evidence of doubt that he was competent to stand trial. If there was such
evidence, the trial court had a sua sponte duty to suspend the proceedings, appoint
counsel for defendant and experts to evaluate him, hold a competency hearing and
determine whether he was competent to stand trial.
         We conclude the trial court had substantial evidence to doubt that Hayes, who had
been diagnosed with and treated for serious mental illness, was competent to stand trial.
In failing to hold a competency hearing prior to or during the trial of Hayes on charges of
stalking, making criminal threats and repeatedly violating a restraining order, the trial
court abused its discretion. This error is prejudicial per se. We also conclude that this
case does not fall within the rare category of cases in which it is feasible for the trial court
on remand to determine retrospectively whether the defendant was competent to stand
trial. For these reasons, we reverse the judgment and remand for further proceedings.


                                                             1
       We do not reach Hayes’s other assertions of error because our opinion here
renders them moot. Our opinion here also disposes of—and renders moot—additional
errors asserted in this appeal and in Hayes’s separate petition for habeas corpus, case
number A141842, which we deny in a separate order this day.
                                    BACKGROUND
       We relate the procedural and factual background of this case at length, given the
unusual nature of the proceedings and resultant sentence.
                                             I.
                           The Basis for the Criminal Charges
       In August 2008, Hayes lived around the corner from Meredith Crawford
(Crawford). Crawford saw Hayes walking with a cane and wearing a neck brace, so she
gave him some flowers “because he was obviously in a hurt position.” On about
August 15, 2008, Crawford met Hayes again in a neighborhood postal center and they
spent the day together. Over the next two weeks, they spent some time together and had
sexual relations. Altogether, they saw each other no more than eight times over a two-
week period.
       Crawford had ended a relationship with her boyfriend about six weeks before
meeting Hayes, but was not ready to begin a new relationship, so she told Hayes she was
not interested in spending so much time with him. Hayes became angry and accused her
of “messing with him emotionally.” Crawford then told Hayes she did not want to see
him anymore. She found it alarming that he “became accusatory at [her] so quickly.”
       Hayes responded by sending Crawford text messages and e-mails that “accused
[her] of messing with him, calling [her] names.” In several e-mails, he said Crawford’s
friends were outside talking about him, singing his songs and threatening him. He wrote
that he would be outside her house and she could send out her friends to beat him up.
Crawford testified her friends were not aware of her brief relationship with Hayes, and
she considered it impossible that her friends “would be sitting outside in a shared yard
talking about it.”



                                             2
       One day, Hayes sent Crawford about 15 text messages, and she agreed to meet
with him. They were on speaking terms again briefly and would go to a coffee shop.
However, Hayes then sent “another barrage” of messages asking, “Why did you do this to
me?” After October 4, 2008, Crawford stopped responding to Hayes’s e-mails. In a final
e-mail to him, she asked him to stop contacting her and informed him she would not
communicate with him. She made no further attempt to contact him.
       Hayes continued to send e-mails to Crawford, so she filed complaints with the
police. She considered his behavior “alarming” and “unreasonable,” “especially when
he was talking about my friends being involved and things that weren’t true.” The police
advised her not to block his e-mail so she could continue to document his contacts.
Sometime later in 2008, Hayes stopped e-mailing her.
       Hayes resumed e-mailing Crawford in October 2009. Some messages were
“cordial and inviting,” but others were “derogatory,” accusing her of “messing with him
emotionally.” She filed another police report. The e-mails continued into 2010, and
some contained songs. One song, sent repeatedly, was titled “Stalker Song.” Its lyrics
included: “You’ll never be able to get away, I’ll always be there, you’ll be in my head.”
The song alarmed Crawford. In January 2010, Crawford was in a cafe and saw Hayes
outside, walking back and forth outside staring at her.
       On June 2, 2010, Crawford obtained an order restraining Hayes from having any
contact with her. Hayes attended the hearing but did not oppose the request. An hour
after he was served with the restraining order, however, he sent her an e-mail. His e-
mails became even more frequent thereafter. Crawford received about 100 e-mails from
Hayes between issuance of the restraining order and the time she later “filed charges.”
       In some e-mails, Hayes apologized to Crawford “for all the terrible things” he said
to her. He told her he had sent her songs because he thought she would like them. In
some messages, he talked about getting married to Crawford and having grandchildren.
He referred to her as his “girlfriend.” He invited her for Thanksgiving dinner with his
family. He sent her a song about being with her and said people wanted them to be
together so he could write more songs. Hayes also sent Crawford messages asking her to


                                             3
stop others from reporting him to the police. He wrote: “It’s not going to stop until I
have someone who is in love with me. That person is you.” Crawford continued to file
police reports until 13 or 14 were on file.
       One of Hayes’s e-mails stated: “I send you a picture of my cat. She’s so pretty.”
The email contained a photograph of an erect penis with a cat in the background.
Another e-mail said he was tired of writing to Crawford and wanted to hold her.
       Hayes’s e-mails became more erratic in content. He indicated there was a
conspiracy engineered by Crawford’s friends to damage him socially and economically.
He threatened harm to Crawford if she became involved in the conspiracy. He sent
pictures of knives. In one e-mail contained, he wrote: “Fuck you, cunt bitch” and
accused her of wanting to “jerk me around and hurt my feelings.” In another, he told her:
“You are not giving me the sex I need to have power,” and “[t]he restraining order will
not be enforced.” He wrote: “You are killing me by not being with me” and “If we
cannot be together, I prefer this to death.” In one e-mail, Hayes wrote: “This guy
harassed me when I was pretty obviously suicidally depressed and then worked to take
my life away. Now I’m about to take his life away. . . . You stand by him, you are in the
cross hairs.” Hayes invited Crawford to have him arrested and asked why she never
bothered to block his messages. Other messages continued to refer to Hayes and
Crawford getting married and being together.
       Hayes sent Crawford a message telling her: “There are many, many things to be
frightened of.” In another, he attached a photo of a knife and stated: “Admiring my
beautiful blade. Seeking city where they make the samurai swords. We are going there
when we tour Japan.” In another, he stated: “We’re killing your mom. That’s the way to
get out of pretty much anything jack ass can come up. Okay, fucktard, we’re killing your
mom. How’s that gonna feel? Not so good. Probably pretty bad. But don’t worry cause
then we’re killing you. Now what were you saying?” He repeated threats against
Crawford and her mother in a subsequent e-mail. Several of his other e-mails had content
Crawford regarded as threatening. She decided to press charges.



                                              4
       On June 18, 2011, the police arrested Hayes. The felony complaint arrest warrant
alleged 95 counts: one felony count of stalking in violation of a restraining order (Pen.
Code, § 649.9, subd. (b))1; four felony counts of making criminal threats (§ 422); and 90
misdemeanor counts of disobeying a domestic relations court order (§ 273.6, subd. (a)).
                                               II.
                               The Initial Competency Hearing
       On June 24, 2011, the court appointed Deputy Public Defender Randall Martin as
Hayes’s counsel. Hayes’s appointed counsel in a separate misdemeanor case, Evan
Budaj, expressed doubt as to Hayes’s competency and the court suspended criminal
proceedings in that case and this one.
       On June 29, 2011, Judge Wong appointed Doctors Lisa Jeko and David Kessler to
examine Hayes and report to the court on his competence to stand trial. Kessler’s report,
dated July 19, 2011, reflects, based on his interview with Hayes, that Hayes first
underwent psychiatric treatment in 2008, was seen at a clinic and was twice involuntarily
committed at San Francisco General Hospital, and left San Francisco thereafter. Hayes
saw a psychiatrist in Georgia who prescribed an antipsychotic, Risperdal, which Hayes
stopped taking because it was too “powerful.” In 2009 he was back in San Francisco and
suicidal. He made a suicide attempt in Florida by cutting himself and was hospitalized
for six days and diagnosed with Manic-Depressive Disorder. Thereafter he was again
back in San Francisco where he was treated for Major Depression and prescribed
Lexapro, which he later discontinued.
       Kessler’s report stated: “[Hayes’s] history and account of his involvement in the
current alleged offenses are consistent with the presence of a psychotic paranoid disorder,
based on symptoms including persistent persecutory delusions together with prominent
accusatory and command auditory hallucinations.” Kessler noted that Hayes “has
undergone brief psychiatric hospitalizations in the past, with apparent prompt, although
probably superficial, recompensation.” As to Hayes’s competency to stand trial, Kessler

       1
           All further statutory references herein are to the Penal Code.


                                               5
wrote: “Mental competency to stand trial is a legal, rather than a psychiatric
determination. The defendant clearly understands the nature of the charges against him,
and their possible consequences. He is alert, and in good contact, with intact intelligence
and concentration. His responses are relevant and coherent, and his behavior is
appropriate. He asserts that he has confidence in his current attorney, who reportedly
believes his client to be mentally competent for trial. While the defendant’s thoughts
about the alleged offenses may be founded on irrational premises, they are not manifestly
bizarre, in the sense that they are not wholly outside the realm of possibility. In addition,
as noted, defense counsel is said to be prepared to represent him on this basis.” 2
Kessler’s report does not directly state an opinion that Hayes was competent to stand trial
but implies that was his opinion.
       Jeko’s report, dated July 22, 2011, noted that Hayes, who was 39 years old, had a
history of psychiatric hospitalization starting at age 14. Hayes initially denied having any
mental health incidents in San Francisco or prior suicide attempts, but San Francisco
police reports indicated otherwise. Hayes told Jeko he had been hospitalized for
“depression” when he was 14, again when he was 17, again in 2008 in Florida after a
suicide attempt and again in San Francisco General the same year. Hayes had been
arrested for DUI in 1992 and reckless driving in 2000, and had contacts with police for
“Suspicious Occurrence” on one occasion and “Mentally Disturbed Aided Case” on two
occasions in 2008. His mother had reported to Jail Psychiatric Services (JPS) that
defendant had been diagnosed with Bipolar Disorder. Hayes admitted receiving
outpatient treatment at a mental health clinic in 2009, where he was prescribed the
antipsychotic Risperidone and the antidepressant Lexapro, but stated he had stopped
taking these medications in 2010. Jeko reported that JPS had not prescribed any
psychotropic medications but that its clinicians had “suspected a paranoid thought

       2
         Kessler had not spoken with Martin. At the July 27, 2011 hearing when
Kessler’s report was received, Martin observed: “Dr. Kessler’s opinion would seem to be
based on his reference that Mr. Hayes told him that I believed him to be competent. I
have never informed Dr. Kessler that that was my opinion.”


                                              6
process.” JPS’s primary diagnosis was Personality Disorder, and ruled out diagnoses of
Bipolar Disorder, Mood Disorder, Schizoaffective Disorder or Substance-Induced
Disorder.
       Jeko stated that Hayes “clearly evidenced fixed paranoid delusions.” She
observed that Hayes’s “thought process was intact, save when there were manifestations
of his paranoid, delusional ideation. When his fixed delusions were revealed, he became
increasingly animated and determined to describe, in great detail, his reasoning.” Hayes
was not currently taking any psychotropic medication. Jeko believed “antipsychotic
medications appear necessary in order to loosen [Hayes’s] fixed delusions,” and
medication would likely help him regain competency. In contrast to Kessler, who
disposed of Hayes’s ability to rationally assist counsel in a few sentences that assumed
the truth of Hayes’s representation that Martin believed Hayes was competent, Jeko
devoted two pages of observations and evaluation to the topic. Jeko had spoken with
Martin, “who expressed concern that Mr. Hayes suffered from paranoia and believed in a
‘conspiracy theory’ that others had been hacking into his email, and waging his self-
defense based upon this theory in the case pertaining to the charges of stalking and
repeatedly violating the conditions of the restraining order placed upon him in June
2010.” Jeko concluded Hayes could not assist counsel in a rational manner: His
“paranoid delusions impinge on his ability to adequately assist counsel in his own
defense. . . . He refuses antipsychotic medication, or, for that matter, any psychotropic
medication that would serve to loosen paranoid delusions . . . [which] are both relevant
and necessary in restoring him to competency, an understanding that he does not share.
This combination of factors contribute to his inability to adequately assist his attorney in
his own defense.”
       The discrepancy between Kessler’s and Jeko’s reports led the court to order a third
evaluation. Dr. Brad Novak’s 16-page report dated August 5, 2011, describes
information contained in records he reviewed. It indicates that Hayes repeatedly denied
having mental health or psychiatric issues and had declined medications. Jail medical
records indicated that Hayes’s mother reported that her son “is a high functioning


                                              7
bipolar” with a “history of manic and depressive symptoms,” that he “is in ‘crisis’ now in
a similar fashion that he was in during the 2008 hospitalization timeframe,” and that
“ ‘He has some serious delusions. He believes his charges are related to a conspiracy that
is targeting him.’ ” Hayes’s mother also said she thought Hayes “ ‘needs medications.’ ”
His mother reported “periods of clarity but also episodes of agitation and lack of touch
with reality.” According to Novak, Hayes “seemed motivated to minimize his history of
mental illness and therefore it is not known if his stated history is completely accurate.”
Novak “was left with the impression that he was hospitalized [in 2008] in the context of
delusional paranoia involving his belief that he is ‘harassed.’ ” Hayes said he had a
history of depression, but what he described was “not . . . a clear history of depression but
rather was . . . paranoia.” Novak reported that Hayes “does not think he has a history of
paranoia but rather that he has been the victim of harassment by multiple people.” Hayes
“denied a history of other potential psychotic symptoms” though he admitted a history of
being prescribed with “risperidone (antipsychotic medication)” and that “his past
psychiatrist . . . thought that he was delusional.” Hayes reported having stopped the
psychiatric medications.
       Novak stated: “Although he was very articulate, as the interview went on [Hayes]
became more and more focused on what I thought was delusional material. He gave a
somewhat confusing account of how he has been ‘harassed’ by a variety of people
including the alleged victim in his case. [¶] . . . He believes that people associated with
[a woman he briefly dated] have been harassing him by hacking into his computer and
email and tapping his phones. He even thought they were able to ‘blow up’ his computer
via the hacking. [¶] He says people harass him by saying he will never pass the bar
exam.3 He rambled about how he was being harassed because of his herpes virus. He
said he was being harassed by his neighbors who say he is spreading ‘the herpes around.’
[¶] He explained that his harassers are rather sophisticated; as he has been set up to get
arrested when in fact he is the victim. He is no longer sure if the alleged victim is

       3
           Hayes reported that he has a law degree from JFK University.


                                              8
involved in the harassment. He never gave a rational or articulate explanation regarding
why so many people would be conspiring to harass him.” Hayes told Novak he wanted
to enter a plea of not guilty based on self-defense, but Novak considered this decision to
be “based on his delusional beliefs.” “He said that under no circumstances would he
allow an attorney to present a defense based on [his] mental illness. He explained
because he knows that his beliefs regarding his harassment are not delusional, that he
‘absolutely’ will not allow his attorney to present evidence that he is mentally ill.”
       Like Jeko, Novak believed treatment with psychotropic medication could help
Hayes regain competency.4 He also stated: “It is highly unlikely that [Hayes] is
currently malingering (faking or fabricating his symptoms of psychosis). In fact, he is
very much minimizing his current impairment as he insists that he is not delusional.
Moreover, his displayed delusional thoughts were very consistent with mental illness.
The reviewed mental health records also provide support that he has genuine impairment
and is not malingering.”
       Novak opined that Hayes was not currently competent to stand trial. Specifically,
he observed that Hayes’s “reasoning of his decision to enter a not guilty plea was
primarily based on his delusional beliefs. He was preoccupied with his belief that he has
been the victim of an elaborate conspiracy involving many people who have harassed
him. He talked about his phones being tapped, his email being hacked and his computer
being hacked and then ‘blown up.’ [¶] Based on his above beliefs regarding
‘harassment’ and based on his belief that the evidence against him is ‘circumstantial,’ Mr.
Hayes expressed the belief that the case against him is not strong. He said the charges
against him are ‘outrageous.’ ” Novak opined that despite Hayes’s “ability to understand
his legal process, he does not have the ability to assist counsel in a rational manner. This
is a direct result of his ongoing delusional thoughts regarding him being a victim of a
conspiracy of harassment. . . . [¶] These beliefs render him unable to rationally assist his


       4
          Kessler’s opinion was that “treatment with anti-psychotic medications may not
readily result in appreciable change.”


                                              9
attorney because he insists that his attorney not be allowed to present evidence that these
beliefs are evidence of mental illness. . . . [¶] Instead, he wants his attorney to enter a
plea of not guilty on his behalf and take the case to trial where Mr. Hayes hopes to prove
his innocence in part by showing that he has been the victim of harassment. In essence
then, he wants his attorney to present an irrational defense that Mr. Hayes’ delusional
beliefs are not in fact delusional but rather actual evidence of his innocence. . . . [¶] . . .
[¶] Although Mr. Hayes did not endorse delusional thoughts towards his current
attorney, there is evidence that he has had delusional paranoia directed towards other
members of the legal process. His letter to the district attorney’s office dated 7/21/11
displays evidence of paranoia toward the district attorney’s office. Therefore he is at risk
of incorporating members of the legal process involved in his case into his delusional
thinking regarding his harassment.”
       At a hearing before Judge Wong on September 14, 2011, Martin read into the
record a rambling letter Hayes had written to San Francisco District Attorney George
Gascón. The letter stated Hayes was incarcerated for criminal threats and stalking, would
be “going to trial soon and expect[ed] to be found not guilty.” Hayes advised Gascón
that once he was found not guilty, he “expect[ed] the D.A. to bring charges against the
people who have harassed me for the last three years or so. This is an organized group of
people, some of whom may be attorneys and investigators and who also may have
contacts with the district attorney’s office and the police. Their actions have been
extremely abusive and destructive to my life, and I believe I am not their first or only
victim. In short, these people are a serious threat to our community.” The letter further
advised that Hayes had “already contacted Supervisor Mirkarimi in regards to this matter
and will contact all of the other supervisors, the Mayor’s office, and possibly the F.B.I. or
other federal offices.”
       In the letter, Hayes demanded that “the D.A. take action that file charges against
this gang, for lack of a better word,” stating this matter would be “highly publicized.” He
claimed there were “apparently licensed attorneys, investigators who are behaving
completely unethically,” “they [were] apparently involved with trafficking cocaine,


                                               10
particularly to local restaurants,” and “they use[d] hacking technique to monitor and
harass victims.” Hayes claimed his phone, e-mail and home computer “were all
compromised. Work and social e-mails regularly disappeared. Some of the evidence
against me consists of e-mails I did not compose or send or which have been modified.”
There had been an “abuse of process” involving “setting people up, framing them, setting
them up to be charged by the police, et cetera. In my case, they seem to have encouraged
someone to put a restraining order on me and continue to harass me, leaving contacting
the protected party as the only way I had to find out what was going on, since she is the
only person whose identity I actually know. I was arrested when I started to threaten
them for harassing me, not her.” The letter described “third-party sabotage as in
instigating conflicts with others so as to overwhelm the victim’s life and resources. In
my case, multiple simple, easily-resolved disputes were blown completely out of
proportion, I believe due to the third-party activity, really outrageous, irrational behavior,
all seemingly caused by the third party’s influence, intensified civil disputes, angry
confrontations, et cetera.” Hayes believed he was being subjected to “serious ongoing
harassment” that was “designed to be difficult to trace and detect.” The letter again
demanded “that the D.A. take action against these people.”
       Counsel submitted the matter on the reports of Drs. Kessler, Jeko and Novak.
The court was “persuaded by Dr. Novak’s and Dr. Jeko’s evaluations. They are
internally and largely consistent and they both concur with the fact that defendant is
unable to assist counsel in the conduct of the defense in a rational manner as a result of a
mental disorder.” The court also found Hayes lacked the capacity to make a decision
regarding antipsychotic medication.
       Hayes addressed the court, strongly objecting to the competency proceeding,
particularly when there had been “absolutely no investigation as to my claim that was
outlined in this letter.” Judge Wong told Hayes he appreciated his remarks but believed
they were “consistent with what has been said by Dr. Novak. It is clear that you
understand the nature of the charges, the court proceedings, and legal terms. But it’s also
clear that you do not have the ability to assist counsel in a rational manner at this time.


                                              11
And it appears to be the direct result of ongoing thoughts regarding your feeling that you
are a victim of a conspiracy of harassment.”
       On October 5, 2011, the court committed Hayes to Napa State Hospital for
treatment to restore his competency and authorized the hospital to involuntarily
administer antipsychotic medication.
                                             III.
        The Certification That Hayes Had Regained Competence to Stand Trial
       Hayes was admitted to Napa State Hospital on November 30, 2011. On
February 7, 2012, the medical director of Napa State Hospital certified that Hayes was
presently competent to stand trial. The accompanying report (hereafter “restoration
report”) diagnosed Hayes as suffering from Bipolar I Disorder, with the most recent
episode being “Manic Severe with Psychotic Features.” According to the report: “At the
time of this letter, Mr. Hayes no longer shows signs and symptoms of an active Manic
Episode. His speech is within normal limits, he is much less irritable (although
irritability is notable in discussions regarding his perceived treatment during the legal
proceedings and issues of medication) and his thought processes [are] within normal
range. His thoughts do not appear to race and he presents them in a more controlled
manner.”
       The report also considered a diagnosis of “Delusional Disorder, Persecutory
Subtype” and reported: “Mr. Hayes continues to report a belief system that has been
considered delusional by previous evaluators. He states that a group of individuals
associated with a woman he dated for a brief period in 2008 have colluded to make his
life as difficult as possible by harassing him and sabotaging him in various areas of his
life. He said that he believes the individuals began bothering him after he and this
woman stopped dating. He said they began bothering him because they are immature and
enjoyed bullying people. As he responded to them by yelling at them, disparaging them,
and attempting to out maneuver them, the harassment intensified. Mr. Hayes reports that
these individuals hacked into his computer and tampered with emails and important
documents he had created. He reported that at times he could hear them yelling at him


                                             12
and mocking him from the neighboring home where they lived and he could tell [by]
looking at people whether or not they were involved or had been privy to his emails. Mr.
Hayes provided examples of how he believes they interfered with his life ranging from
talking to people with whom he had become friends to discourage them from maintaining
the relationship to changing his internet passwords and spreading rumors about him
throughout the neighborhood. He states that the individuals involved are well-educated
and, over time, constructed and executed a plan to place him in a situation where his
claims against them appear to be delusions.”
       Hayes had been prescribed risperidone “for psychosis and mood stability” but was
only partially compliant with his medication. The report stated: “Mr. Hayes has been
resistant to medication from the outset of his admission to [the hospital]. Upon
admission he agreed to take 1 mg. of [risperidone] after 2 mg. was initially
recommended.” The hospital recommended Hayes continue his medication after
discharge “for continuity of care.”
       However, the report could not conclude that Hayes was delusional: “Without
collateral information regarding what actually occurred during the period when Mr.
Hayes felt harassed, it becomes difficult to conclude that Mr. Hayes’[s] beliefs are in fact
delusions.” The report concluded that “even if his beliefs are delusional, . . . Mr. Hayes
has the capacity to assist in his defense in a rational manner” for four reasons: (1) He
had demonstrated that he can think flexibly about how others may perceive “his proposed
legal strategies,” understood “that his reports of being harassed may be difficult for others
to believe and difficult for him to prove,” and indicated he would abandon a defense that
relied on his being harassed if he could not obtain evidence sufficient to support his
argument. (2) Hayes had reported that he wanted to represent himself with the assistance
of advisory counsel. “The reasons for this decision to represent himself appear
reasonable and rational. He said that he wants to have more control over his case and
was dissatisfied with what he perceived to be inadequate representation prior to his
finding of incompetency.” (3) Hayes had declined an opportunity to expedite his
competency evaluation and demonstrated to his treatment team a capacity to work with


                                             13
others in a rational manner. (4) Hayes had “demonstrated that he has the ability to
advocate for his rights in multiple aspects of his treatment during this hospitalization.”
       After Hayes returned from Napa, Martin declared a conflict to the court, which
relieved him as Hayes’s counsel. The court then appointed Peter Furst as conflict counsel
for Hayes. At a hearing before Judge Wong on March 14, 2012, Furst told the court:
“There is a report that came back . . . which says that Mr. Hayes is competent. So I’m
not going to challenge that report, your Honor. I would have liked to have seen what the
original evaluators would say after the fact. But I don’t think that’s going to happen.
And so I’m not going to challenge that report.” Furst and the People submitted the issue
of restored competency on the state hospital report, the court found Hayes competent, and
criminal proceedings were reinstated.
                                             IV.
                          Hayes’s Motion to Represent Himself
       On March 15, 2012, Hayes sought the court’s permission to represent himself.
Judge Chan questioned whether Hayes could “carry out the basic tasks to conduct your
defense” and asked him to describe his educational background. The court asked Hayes
whether he was aware of the risks of self representation, understood he might do himself
more harm than good and would receive no special treatment, understood he would face
an experienced prosecutor, and understood the elements of the crimes with which he was
charged. None of the court’s questions addressed whether he intended to mount a
defense based on his delusions. After Hayes answered the court’s questions
affirmatively, the court granted Hayes’s motion for self-representation.
       The court asked whether Hayes wanted advisory counsel, and Hayes responded
that he did. Although Hayes indicated that he would work with Furst as advisory
counsel, when the court asked Furst to assume that role Furst stated he would do so if
ordered but was disinclined to do so. Hayes stated he was prepared to proceed without
waiving time and without advisory counsel. The preliminary hearing was set for
March 26, 2012. The court did not appoint advisory counsel but granted Hayes’s request
for a private investigator. On March 20, 2012, Judge Chan relieved Furst of his duties


                                             14
and appointed John Murphy as Hayes’s investigator. The court did not appoint advisory
counsel until the middle of trial, after the People rested their case.
                                              V.
                                  The Preliminary Hearing
         At the preliminary hearing before Judge McCabe on March 26, 2012, Hayes
represented himself. The prosecution’s case consisted of the testimony of John Keane,
the lead investigator in the case, and numerous exhibits, including e-mails Hayes sent to
Crawford. In cross-examining Keane, Hayes repeatedly asked about the connection of
persons named Steve and Jason to Crawford and to the case. Keane knew of a person
named Steve only as someone Crawford said Hayes had ranted about and who might be
in law school with Hayes.
         Hayes testified on his own behalf. We quote this testimony at length as evidence
of the beliefs underlying his self-representation at the preliminary hearing and later at
trial:
         “In October 2008, after briefly dating, [Crawford] and I broke up. . . . Shortly
after, I ended up with friends of hers very seriously harassing me for over one week.
This harassment was so severe that I left the city, dropped out of law school, lost my
housing, and attempted suicide. It was all coordinated by someone named Steve. I
returned to San Francisco and I resumed my studies in early 2009. I was extremely
depressed and isolated and didn’t do much except school and an internship.
         “In late 2009, I contacted [Crawford] again because weird things were constantly
happening and I had the ongoing sense of slander, which I assume originated with this
Steve person. So I wrote to her and asked her to tell me who was involved in the events
of 2008. She didn’t write back, but immediately I started to be very seriously harassed
again. People would say odd things to me in my neighborhood. People I was just getting
to know would suddenly stop talking to me, and this harassment became so intense I
dropped out of school again. . . .
         “So I started writing songs to [Crawford] because she didn’t seem like the sort of
person who would constantly slander someone for something that had happened a full


                                              15
year before. I wrote some really good songs and in early 2010 [t]hings were looking
good. I started volunteering at local community gardens and playing out at open mikes in
town and feeling better. Then, very suddenly and without warning, in June of 2010,
[Crawford] put a restraining order on me, which I did not oppose.
        “So I told her I was trying to apologize and stopped contacting her completely.
But the harassment intensified and it was constant. Constant slander and sabotage.
Things just going suddenly wrong. People I didn’t know trying to start fights with me,
acting totally unreasonable towards me in local cafes and bars and Hayes Valley Farm.
All the time. So I just kept on going and tried to ignore this.
        “I got back into school for my last semester before graduation, but it was really
intense. People were constantly starting conflicts with me and demeaning me. A
business deal I worked on for months went suddenly wrong. Then, in late 2010, I got
tired of it all and I started to make fun of [Crawford] and write her more songs and tell
her I love her and call her my girlfriend and tell her stories about our international super
band.
        “Then the same thing went on—wait. I sent her lots of stories, songs, and
pictures. Basically, a unified work that I later placed under copyright called “Letters to
Girlfriend.” Then the same thing went on. I was constantly being abused by people in
ways that seemed inspired by very pervasive slander. I just kept moving.
        “Then I graduated from law school. I started making plans to take the July 2011
bar exam. Then, in late February of 2011, [Crawford] walks up to me in the street, Hayes
Valley, near my apartment. She says she wants to talk to me, so we go near the mini park
near [Page] and Laguna, and she told me that she is in a relationship with Steve, and that
he is an attorney who deals coke and works with the cops and beats her up, and that he is
the one harassing me, along with his friend Jason, and that they have hacked into my
computer, e-mail, and phone, and are constantly slandering me. She says it’s like a game
to them.
        “I just don’t know what to think. So I asked her to come stay with me and get out
of the situation, but she won’t even tell me either of their last names. I end up getting


                                             16
kind of annoyed, because it’s really negatively affecting my life, but then she just leaves,
and then the harassment starts to get really, really intense. E-mails are being erased,
songs are being erased, legal work product is disappearing from my laptop. Then I start
to realize that my computer processing chip was blown out just a couple weeks before,
and those are the exhibits of the MAC store bills.” 5
       “Then it all becomes extremely overt. I meet a woman, get her number, go home,
and then the number is gone. Constantly. I’m actually looking for a real girlfriend, so
this is very disruptive and damaging to my life. Then the business deal that went wrong
turns into a lawsuit, and that’s still an ongoing lawsuit. . . .
       “Songs were disappearing, legal work product is disappearing, my computer is
turning on and off, the password is being changed back and forth. My access to bar-
based study site is being changed back and forth. All kinds of stuff. It was just total
communications chaos. And this was going on—along with this, like, I was constantly
getting into, like, you know, just disputes with other people that seemed to be instigated
by a third party who was not physically involved. . . .
       “So I’m writing legal theories to [Crawford] about how I’m going to sue Steve,
and we, her and I, are going to sue him because I’m trying to instigate him or him and her
to do something to reveal themselves or just get me arrested so I can have some justice.”
       “Then in April of 2011, people from Hayes Valley Farm suddenly demand that I
leave the farm for no reason. This starts a dispute that leads to misdemeanor battery
charges against me, and they file three restraining orders against me in one week while
I’m attempting to study for the bar exam. They refuse to attend scheduled mediation.
And like other disputes that I was involved in, it was just completely unreasonable,
completely instigated by a third party.”
       “So then coming into May, I just start talking trash to Steve constantly in
[Crawford’s] e-mail, Steve being, you know, this person who I don’t know who he is or
what’s going on. I know I was told that name by her.”

       5
           Hayes introduced receipts for computer repair into evidence.


                                               17
       “And then things start happening after my arrest that I believe are related. I
believe that my misdemeanor battery attorney, Evan Budaj . . ., knows Steve and Jason
and/or [Crawford], and that he intentionally suspended my proceedings with absolutely
no factual or legal investigation eight working days after my arrest, while not—or no
longer my attorney of record. He intentionally suspended my proceedings and referred
me as incompetent under these facts with no investigation . . . .”
       “Then he directly diagnosed me . . . as suffering from a fixed hallucination,
incapable of understanding the nature of this offense, even though he’s not a licensed
psychiatrist or psychologist. [¶] . . . [¶] In doing so, caused my unnecessary illegal
commitment to Napa State Hospital. Because when I told the competency evaluators to
review my—only prosecution evidence, none of the defense evidence, my side of the
story, they assumed that what I told him was a delusion. That’s why I’ve been
incarcerated for nine months with no actual representation, denied representation, denied
any and all due process.
       “This is the background for the situation of my charges. I thank this [c]ourt for
hearing me and respecting my right to self-representation, as this has been a very
frightening and troubling experience. I have been in jail for nine months with absolutely
no due process. I’ve been denied my right to self-representation, which is absolutely
ridiculous.”
       After presentation of evidence, the court found probable cause to hold Hayes on
the charged offenses. The court did not raise the question of Hayes’s competency to
stand trial.
       On April 6, 2012, the People filed an information charging Hayes with the same
95 counts alleged in the initial complaint. Hayes was arraigned on April 9, 2012. Hayes
did not waive time for trial.
                                            VI.
                 The Period Between the Preliminary Hearing and Trial
       On April 11, 2012, at a hearing before Judge Lam on Hayes’s motion to be
released on his own recognizance, Hayes repeated the core components of his conspiracy


                                             18
theory, including his contention that his attorney in the battery case, Evan Budaj, had
played an active role in “the conspiracy against me which has caused the felony charges
to falsely be brought, unnecessary competency proceedings to be maintained against me,
and justice to be severely perverted.” Hayes said he didn’t oppose the restraining order
Crawford sought “because if she didn’t want to talk to me, I wasn’t going to talk to her.
But at about six months after that harassment, really intensive harassment on the part of
her and her associates which would lead me to believe that the restraining order is
essentially part of a set up. There is, like, over, you know, 13 something police reports
that she’s filed against me, none of which are really saying anything besides that I’m
contacting her via e-mail which I was doing to try to determine who is harassing me and
why. In the end of this when I was arrested, my computer was blowing up, passwords are
changing on my computer. I was trying to study for the state bar exam. Crawford and/or
her associates had been harassing me for over three years extremely, severely. And
this—Evan [Budaj] is very likely one of their associates because of the extremely suspect
nature in which he referred me. And if you look at what happens, Evan [Budaj] said I
was delusional. What’s the delusion? The delusion is that I am being harassed. So that
sets me up in a situation where anything I say to a competency evaluator is considered to
be an aspect of delusion if I say people are hacking into my computer, people are
harassing me, et cetera, et cetera, et cetera. This is an absolute perversion of justice. It is
a part of a conspiracy to unlawfully arrest me and maintain false proceedings against
me.” The court repeatedly asked Hayes to focus on his request to be released on his own
recognizance.
       Hayes stated: “And then I would like to directly ask ADA Nathan Quigley on the
record if he knows or associates with any of the persons I’ve mentioned today,
[Crawford] and Jason Crawford, Steve Capalini, or Evan [Budaj].”6

       6
         It is unclear how, after the preliminary hearing, Hayes came to believe that
Jason’s last name was Crawford and Steve’s last name was Capalini (or, as it is
subsequently spelled in the record, Cappellini). During the entire course of the
proceedings, it was never demonstrated that there are people with these names.


                                              19
       The court refused to permit the question and denied the motion. But despite the
obviously delusional nature of Hayes’s statements to the court, including his statements
that his attorney and the competency proceedings were part and parcel of a broader
conspiracy against him and his apparent suspicion that the assistant district attorney was
also a participant in that conspiracy, the court did not raise the question of Hayes’s
competence to stand trial.
       On May 23, 2012, Hayes wrote to Judge Lam complaining about a missing Brady
motion which had been filed a month earlier. He accused his appointed investigator,
Murphy, of lying to him and unlawfully giving him legal advice that turned out to be
incorrect. He further accused Murphy of “acting in conspiracy with ADA Quigley” and
requested a new investigator. On May 25, 2012, Hayes told Judge Lam that he wished to
“delete” Murphy as his investigator and needed the services of a paralegal. On the same
date, he again wrote to Judge Lam apologizing “for appearing to be disrespectful in your
courtroom,” and explaining that “[i]t is the conspiracy’s strategy to make this happen, in
attempt to deny me my right to self-representation as happens to me for over 9 months.”
He accused Murphy of “not working in my interests,” reiterated that he was “not waiving
time” and accused Quigley and Murphy of “working together to try to get me to waive
time.” In a second letter on the same date, Hayes accused Murphy of not maintaining
Hayes’s confidentiality and of having a conflict of interest, and asked that the court
relieve him and either provide a new investigator or allow Hayes to hire one. Hayes
submitted a proposed order appointing Stanley Goff as his paralegal to assist him in filing
a “motion to disqualify the District Attorney’s office from his case,” appointing Hayes a
new investigator and ordering Murphy to turn over Hayes’s file to the new investigator.
       At a hearing on May 29, 2012, Hayes again told Judge Lam that he had a conflict
of interest with Murphy. He sought appointment of a new investigator. “I want an
investigator who works for me and is not working with the DA.” Hayes also indicated
that he wished to subpoena his former attorney Randall Martin to testify at his trial
because “he has been participating in the conspiracy with the complainant and her



                                             20
associates to cause this action.” He indicated that Quigley was also involved, and he
would seek to disqualify Quigley on that basis.
       On May 30, 2012, Judge Lam declined to relieve Murphy but assigned Stanley
Goff to provide paralegal assistance to Hayes. Despite Hayes’s obvious delusions of an
ever-broadening conspiracy that now included the assistant district attorney prosecuting
his case, a former attorney representing Hayes in the criminal battery case, his former
attorney in this case, and the court-appointed investigator assisting him in this case, the
court did not question either Hayes’s competency to stand trial or his competency to
represent himself.
       On June 6, 2012, the case was assigned to Judge Dekreon for trial. At a pre-trial
hearing that day before Judge Dekreon, Hayes sought “the admission that Mr. A.D.A.
Quigley acted in conspiracy against Mr. Hayes” on the ground that “Mr. Quigley
conspires with Jason and [Crawford], Steve Cappellini, George Gascon, Randall Martin,
Evan Budaj and others against Mr. Hayes.”
       On June 7, 2012, during discussion of the prosecution’s motions in limine (Hayes
made none of his own), the court ordered that during jury voir dire, neither defense nor
prosecution could “talk about a third person being responsible for the crimes.” Hayes
made clear that his defense would involve theories of entrapment and conspiracy:
       “MR. HAYES: So long as it’s clear I have entrapment defenses, conspiracy.
       “THE COURT: I’m not talking about the trial itself. I’m talking about voir dire
and I’m talking about opening statement.
       “Do you understand? Whether you agree with me or not, that’s my order.
       “Do you understand?
       “MR. HAYES: I need to clarify. I do intend to ask the jurors whether they
understand the concept of conspiracy.
       “THE COURT: There is no conspiracy in this case, sir, and I will preclude you
from asking that question.
       “MR. HAYES: There is a conspiracy.
       “THE COURT: I am ordering you not to ask that question.


                                             21
       “MR. HAYES: Well, do I get to address that at trial? [¶] . . . [¶]
       “THE COURT: If the evidence comes up as a conspiracy, you can address it in
your closing argument only.
       “MR. HAYES: Well, how do I prove it?
       “THE COURT: That’s your job. That’s your job.”
       Hayes said he planned to call Martin and Budaj to testify concerning “why they
suspended my proceedings illegally”—a part of a “major conspiracy” against him and “a
setup to railroad me into Napa.” Judge Dekreon informed Hayes that such testimony
would not be relevant to the charges against him. Later in the hearing, Hayes asked:
“When is the last day to do a preemptory [sic] challenge against the judge?” The court
informed Hayes, “That’s passed.”
       On June 8, 2012, Hayes wrote a letter to Judge Dekreon, stating: “[T]he D.A.,
Quigley, etc. are aiding in an extreme state of conspiracy. The D.A. has been working
with private operators and the police to cause/instigate domestic violence situations and
then charge and prosecute as a means of political takedown. I am assuming you are
acting within what I am now percieving [sic] to be a generalized prejudice and abuse of
pro-per litigants. If you are further involved please remove yourself and proceed as you
seem to be a fair judge likely unduly influenced by Quigley’s antics. He is just scared of
the truth. Because it will mean his disbarment. It was nice to meet you. Thanks, Greg
Hayes.” Enclosed with the letter is a handwritten “Pre-emptory [sic] challenge relieving
Judge Dekreon.” The court denied the motion. A jury was selected on June 11, 2012.
That day, Hayes filed requested jury instructions on the following defenses: entrapment,
necessity, voluntary intoxication, “[d]efendant victim of conspiracy,” defense of property
and “1st Amendment Free Speech.” All but one of Hayes’s proposed defense
instructions were predicated on the jury accepting his delusions as reality. For example,
his requested conspiracy instruction was: “To prove that the defendant is in fact the
victim of a criminal conspiracy, the defense must present substantial evidence of an
agreement, or mutual understanding, or common goal to falsely cause Mr. Hayes’[s]
arrest, subject him to unnecessary competency proceedings, defraud him of his liberty,


                                            22
professional reputation and property and obstruct and pervert justice.” He filed a witness
list containing 26 names “and all police officers listed on all police reports.” The list of
names included Jason Crawford, Steve Cappellini, Budaj, Martin, Quigley “(after
disqualification),” San Francisco District Attorney George Gascón, Sheriff Ross
Mirkarimi, John Avalos, Christine Olague (members of the San Francisco Board of
Supervisors) and Matt Gonzalez (Chief Deputy Public Defender).
       Judge Dekreon did not raise the question of Hayes’s competence to stand trial
during any of the pretrial proceedings before her.
                                            VII.
                             The Prosecution’s Case at Trial
       Presentation of evidence began on June 12, 2012. Crawford was the first witness
for the prosecution, and she testified to the facts we summarized above. She denied
knowing people named Steve Cappellini or Jason Crawford.
       Hayes began his cross-examination by introducing into evidence one of the e-
mails he had sent to Crawford. The e-mail referenced “Iowa library privatizers” and “the
king of Saudi Arabia” and Crawford did not know what that was about. It also contained
lyrics to a song that Crawford found “disconcerting and frightening.” Hayes asked
Crawford “You support the privatization of Iowa libraries?” and the court sustained an
objection.
       Hayes then had Crawford read an e-mail he sent her that said: “Hi, Mom. Please
download and place on a disk ASAP. Someone has hacked into my account and is
erasing songs. People have been telling me that [Crawford’s] new boyfriend . . . .” The
prosecutor objected that the e-mail was “self-serving hearsay” and the court told Hayes:
“You cannot testify during cross-examination. You cannot elicit your testimony during
cross examination.”
       Although Hayes cross-examined Crawford for several hours, the primary points he
attempted to make were that his e-mails contained works of fiction and that they were
really addressed to persons other than Crawford, the persons he believed were harassing
him. For example:


                                             23
         “Q: So you recognize what’s fiction?
         “A: Potentially.
         “Q: Literary devices? [¶] . . . [¶]
         “A: Devices, yes.
         “Q: Allegory? [¶] . . . [¶]
         “A: Yeah.
         “Q: [A]llusion, metaphor and that kind of thing?
         “A: Potentially, yes.
         “Q: So Mr. Hayes[7] called you Angelshine; is that correct?
         “A: I can’t remember if that’s consistently throughout your e-mails, but yes, at
times.
         “Q: Sometimes he calls himself the Songwriter?
         “A: Correct.
         “Q: And he also calls himself Mr. Haze with a z; is that correct?
         “A: Correct.
         “Q: And you the Librarian?
         “A: Correct.
         “Q: So Mr. Hayes had been sent by English as a songwriter; is that correct?
         “A: I don’t recall specifically the contents of all the e-mails. Sorry. [¶] . . . [¶]
         “Q: So assuming that Mr. Hayes is supposed to bring the songwriter back to the
international superman; is that correct? [To which an objection was made and sustained.]
[¶] . . . [¶]
         “Q: So are you an angel?
         “A: Not to my knowledge.
         “Q: Are you in an international superman?
         “A: I am not.
         “Q: Do you know anything about inter dimensional psychic disturbances?

         7
             Hayes often referred to himself in the third person when questioning witnesses.


                                                24
       “A: No.
       “Q: Do you know anything about quantum entanglement?
       “A: No.
       “Q: Is Mr. Hayes a songwriter?
       “A: Yes.
       “Q: Is he a love songwriter?
       “A: I do not know.
Hayes concluded this line of questioning with the question: “Would you appreciate these
characters being an aspect of a literary work?” He later asked: “About that time, he
started to fictionalize past events in e-mails to you; is that correct?”
       Hayes also had Crawford read into the record an e-mail in which Hayes related
that he had problems with computer security and something had “disappeared from [his]
account.” Crawford read another e-mail that said: “The police are possibly reading my
e-mail without a warrant. I think one or more of the people involved is harassing me,
may have worked as investigators in the county before. The harassment is intensifying.”
A further e-mail stated that a third party may have “blow[n] out” Hayes’s computer
processor.
       Hayes also asked Crawford about Steve:
       “Q: Did you ever have sex with Steve?
       “A: No.
       “Q: Did you have a relationship with him?
       “A: We were just friends.
       “Q: Did Steve try to get Mr. Hayes to kill himself?
       “A: No.
       “Q: Did Steve tell a bunch of people in the neighborhood that Hayes had herpes
and was HIV positive?
       “A: No.
       “Q: Did Steve and his friends threaten to break or re-break Greg Hayes’[s] neck?
       “A: No.


                                              25
Hayes asked Crawford if her husband’s name was Jason, and she answered “No.”
       The second witness for the prosecution was Mari Pellegrino.8 Pellegrino met
Hayes at Hayes Valley Farm in April 2011. Hayes invited Pellegrino to his apartment,
which was across the street from the farm. Pellegrino went to Hayes’s apartment and
they kissed. Hayes tried to take her shirt off, but she told him, “We’re not having
intercourse and everyone needs to keep their pants on.” Pellegrino testified: “He kept
trying to take my pants off. He was holding me with his hand on my neck. I had bruises
on my neck and on my wrist. And he was becoming very physically agitated and
aggressive. [¶] I was able to keep my pants on. He took his pants off and put his hand
on my wrist and basically forced me to give him a hand job. [¶] Several times I
unclenched my hand. I did not want to be doing this, and he was aggressive, and he
wanted me to continue, and I was afraid and thought this is the only way I can get
through this situation is for him to relieve himself and hopefully it will be over.” An e-
mail exchange between Hayes and Pellegrino ensued. Pellegrino stated in one e-mail
message: “Greg, let me be very clear. I do not want you to contact me again.” Hayes
continued to send e-mail and Pellegrino consistently responded that she did not
appreciate the contact, finally writing to him that she had filed a police report and that if
he tried to contact her in the future, she would obtain a restraining order. Hayes sent
Pellegrino two more e-mails, but then his contact ceased. That Hayes continued to send
her e-mail after she told him to stop made her feel “[i]gnored and bullied and afraid.”
Hayes sent Pellegrino between 12 and 15 e-mails in total.
       During his cross-examination of Pellegrino, Hayes asked if he had ever referred to
her as Angelshine or Librarian, whether he had ever told her “about his international
superman,” and whether he had any knowledge of quantum entanglement, or she had
“any knowledge of international psychic disturbances.” Hayes asked her about borage,
“the leafy green vegetable that you really, really liked that we picked and then took over

       8
          Hayes did not make a motion in limine to exclude Pellegrino’s testimony or
object to it at trial (though he did object to documents the prosecution asked Pellegrino to
look at).


                                              26
to my house before the incident,” questioning about the color of its flowers and whether
they tasted good.
       The prosecution’s third witness was Sergeant Marty Lalor, the police officer who
arrested Hayes. When Hayes was arrested he had a knife in his pocket. He also had a
cell phone that contained photographs of a knife like the one seized from him. On cross-
examination, Lalor agreed that the knife was legal and could be used for legitimate
purposes.
       The prosecution’s fourth and final witness was Keane, who testified concerning
his interviews with Crawford. It was Keane who obtained a warrant for Hayes’s arrest.
On cross-examination, Hayes tried to elicit testimony that would confirm his conspiracy
theory:
       “Q. Are there any confidential informants involved in this case? [To which an
objection was raised and sustained.] [¶] . . . [¶]
       “Q: Who is Steve Cappellini?
       “A: I don’t know.
       “Q: And who is Jason Crawford?
       “A: I don’t know.
       “Q: Isn’t Jason Crawford [Crawford’s] husband?
       “A: I don’t know.
       “Q: No? Was anybody else involved in this investigation with you besides
[Crawford]? [¶] . . . [¶] Any other non-police personnel.
       “A: The district attorney, a judge, clerk who typed up the warrant.
       “Q: Well, any other private citizen basically?
       “A: No.
       “Q: Were you in contact with Evan Budaj? [¶] . . . [¶]
       “A: No.”
       Hayes repeated this line of questioning later in his cross-examination of Keane.
Hayes also cross-examined Keane concerning complaints that had been made against him



                                              27
by individuals associated with Hayes Valley Farm. Hayes had altercations with these
individuals, and additional restraining orders against Hayes had resulted.
                                            VIII.
    Trial Proceedings Regarding Hayes’s Attempts to Subpoena Defense Witnesses
       After the prosecution rested, the court considered motions from the public
defender’s office to quash Hayes’s subpoenas of his former appointed attorneys Budaj
and Martin, and of Chief Deputy Public Defender Gonzalez. Hayes argued that Martin
and Budaj “conspired to pervert justice” in his case “by suspending . . . proceedings
without any factual or legal investigation six days” after Hayes’s arrest. Hayes then
proceeded to address the court concerning injustices he perceived to have taken place in
connection with the competency proceedings and ensuing proceedings, including the
trial—an address that takes about 24 pages in the reporter’s transcript. All of these
injustices were part of his perception of a conspiracy: “What happened is this is a
designed prosecution, and what it is you like build up a bunch of police reports about
somebody by slandering them and setting them up and instigating conflicts, and then
those police reports are put into the record, and then if they say somebody’s doing this to
them, you refer them as incompetent, and then when they say that they are found to be
incompetent because it seems delusional because it fits into delusions which would be
found in the DSM-IV such as like paranoid persecutory delusion.” “This is classic crazy,
crazy kind of things that are like—that have some, I mean, obvious conspiracy
characteristics. This is a classic maneuver of intelligence agencies to harass someone till
they seem insane or become insane and get them committed. It’s classic. It totally
diverts you and completely takes away all your due process. [¶] So you’re hanging out,
the computer’s blowing up, you got people getting in fights all over the place, and
everything is going crazy, right? You know. [¶] And you decide that the only person
you have any connection to this, you know, is just going to start talking shit into her e-
mailing, sending pictures of your dick and drunk, fucking knives and all this stuff.
Whatever, you know. [¶] Before it was just writing stories to kind of like try to figure
out what’s going on, you know. It’s a pretty good setup. Pretty frickin’ good setup.”


                                             28
       The court ruled that “the information in the offer of proof or showing as to what
the testimony would be elicited from these three potential witnesses all goes to conduct
that occurred after June 18, 2011 [the final date covered by the information]” and granted
the motions to quash. The court informed Hayes: “The purpose of the subpoena is to put
on evidence of a conspiracy, which is not a defense to these charges and is not allowed.”
Hayes objected: “I want to clarify it’s relevant because it’s basically the result of the
conspiracy. That’s how it was designed. [¶] It was specifically designed for that
purpose for committing me without any due process immediately, and that’s specifically
what happened. [¶] So I think your ruling is faulty in that regard, . . . —you’re just
saying the result of the setup isn’t evidence of the setup, and that’s kind of like just like I
don’t know. [¶] Like can you explain any of these facts that happened here?”
       On Friday, June 15, 2012, the court told Hayes, “Today is the day for you to
present witnesses and/or for you to testify.” Hayes said, “I don’t have witnesses today,
and I’m not prepared to testify myself because nobody is here. [¶] Mr. Murphy has not
delivered all the subpoenas.” Murphy reported to the court on his attempts to serve
subpoenas. Hayes said he wanted to recall Crawford as a defense witness: “I want to
question her about like the abusive process that was evidenced in the initial restraining
order and whether she’s aware of the sort of liability she faces for that, and just pretty
much whether she’s aware of what she’s doing. Because it’s really extreme abuse of my
life essentially in a situation where I don’t have any other option but to figure out who is
harassing me, and I think it’s completely unreasonable to answer somebody who is
asking for you to contact an attorney, who is asking you to contact their mother saying
my computer is blown up and please do something when they have no other option
except act out of necessity to contact you.” The court refused to recall Crawford because
“[n]one of those questions are relevant.”
       The prosecutor questioned whether any witness on Hayes’s witness list could offer
relevant evidence. The court then proceeded to ask Hayes for an offer of proof for each
of the witnesses named. Hayes responded, but the court had to repeatedly tell him to
calm down and stop yelling. The court ruled that none of Hayes’s proposed witnesses


                                              29
had relevant evidence to offer and reminded Hayes that conspiracy was not a defense and
“evidence of conspiracy will not be allowed.” Again, the court did not question Hayes’s
competency to stand trial.
                                               IX.
                    The Defense Case, Closing Argument and the Verdict
       Hayes testified on his own behalf. He introduced receipts for computer repairs to
support his belief that computer “was being hacked into. He then explained the song that
was contained in one of his e-mails to Crawford and began singing it. The court told
him: “Please testify, sir. [¶] Singing is not testifying.”9 Hayes then proceeded to testify
to substantially the same account he gave at the preliminary hearing, from which we
quoted extensively above. The court frequently admonished Hayes to testify about
something relevant to the case. The prosecutor made numerous objections that were
sustained. At one point, the court told the jury to “disregard Mr. Hayes’[s] testimony,” at
which point the reporter inserted into the transcript: “(Please note that the judge, Mr.
Hayes and Mr. Quigley were all speaking (yelling) at the same time. This reporter did
the best she could under these extremely difficult and out of control circumstances.)” A
great deal of Hayes’s testimony consisted of his commentary on e-mail that he had sent to
Crawford, such as the following: “So what I was doing is I was like reading this fictional
construct into the reality of rounding, particularly in situations where, you know, things
have gone kind of wrong. [¶] So like—or to even kind of like see what would happen.
[¶] Because the way people responded to me gave me indications about the kind of
standard that was going on. [¶] One example, my friend got kicked out of the Hotel
Utah.” [At which point the court told Hayes to return to relevant matters.]
       During cross-examination, the prosecution asked Hayes about his perceptions of
harassment:
       “Q: [Restraining orders filed in April 2011 were] [p]art of harassment from your
perspective, right?

       9
           The court had to tell Hayes to stop singing again, at a later point in his testimony.


                                               30
       “A: Yes. You overload somebody with like conflicts that they’re not actually
involved in. It’s game theory. [¶] You zap their resources, overload them with conflicts,
put other people on them. [¶] It’s classic CIA kind of stuff.
       “Q: Right. You’re talking about how overwhelmed that harassment made you
feel, right?
       “A: That’s the purpose of that kind of tactic is to overload the person, to zap their
resources and distract them so they’re just kind of like dealing with all this stuff instead
of living their lives and doing what they could be doing that would make them potentially
a more politically active, productive person in society.
       “Q: And the only—and you didn’t understand how this was coordinated, this
harassment, correct?
       “A: I was gaining an understanding of it because I was doing like kind of like—
you know, listening to people, and I was sending out e-mails to see how people would
react. [¶] Like Jay would say certain things, and I’d be kind of like, you know—that
would indicate to me that he was reading private e-mails that weren’t sent to [Crawford].
       “Q: So you’re sending out e-mails to people to try to instigate some kind of
response?
       “A: That and to like re-spin what had happened.”
       Following Hayes’s testimony, the defense rested.
       During closing argument, Hayes argued that the conspiracy of harassment
targeting him left him with no choice but to act as he did. “The design is I get harassed,
react angrily at [Crawford], I’m arrested and then fed into the machine. [¶] But even if
you are caught up in this group mentality, what do you do with someone who instead
spins a fictional universe into your e-mail? [¶] What do you say when the characters
start playing around in the real world revolving around in curiosity talking about drag
queens and library privatizers and wanting to be a cop and singing songs? [¶] What do
you think? What do you do with somebody who starts singing on the witness stand one
minute and screaming at life and death fury at the D.A. the next? [¶] You realize people
want to live and people want to sing. [¶] I never threatened [Crawford]. I never


                                             31
physically harmed her in any way. [¶] I needed her to be a reasonable person to tell me
what was going on. [¶] I never hit her. I had sex with her four times. [¶] Then instead
of telling me who her friends are, who literally ran me out of the city in 2008, who caused
me thousands and thousands of damages and then did not stop harassing me, did not stop
harassing me at any time since 2008, she put a five-year restraining order on me. [¶]
Then it still didn’t stop. And she would not contact me like a human being. [¶] Instead,
she let people hide behind her and use her as a medium through which to attack me.”
       Despite Hayes’s testimony and closing argument, there was still no question by
the trial court concerning Hayes’s competency to stand trial.
       The jury reached a verdict on the morning of June 20, 2012, finding Hayes guilty
on all counts, except count 83, one of the 90 misdemeanor section 273.6, subdivision (a)
counts. Hayes declined to waive time for sentencing.
                                             X.
                      Competency Evaluations Prior to Sentencing
       JPS submitted a report to the court dated July 12, 2012, stating Hayes was
currently diagnosed with a delusional disorder and was refusing psychiatric medications.
It advised: “JPS suspects that the client is not competent to stand trial and strongly
recommends the court pursue a [section] 1368/1369 evaluation.” On July 16, 2012, for
the first and only time, Judge Dekreon declared a doubt as to Hayes’s competency.
       At a hearing before Judge Wong on July 18, 2012, Hayes told the court Judge
Dekreon didn’t “have jurisdiction” to express a doubt and that “[e]verything’s going
pretty well.” The court appointed Daniel Byrne to represent Hayes during the
competency proceeding. Doctors Jeko and Kessler were appointed to reevaluate Hayes
and again render their opinions.
       Kessler’s report again expressed doubt that Hayes’s belief system was actually
delusional. He commented: “Of some interest is his testimony at [the preliminary
hearing] that at one point he had met with the alleged female victim who had told him
that there indeed was a concerted campaign of harassment directed against him, as he has
consistently claimed, although his statements have been viewed as evidence of


                                             32
persecutory delusions.” Kessler further opined, “his claim that the female victim in the
current charges admitted to him that there was in fact a concerted campaign to harass him
would obviously, if true, cast some doubt as to the validity of a current psychotic
diagnosis.” He believed Hayes was competent to be sentenced. Kessler’s report did not
address Hayes’s ability to approach his sentencing hearing in a rational manner, either on
his own behalf or with assistance of counsel.
       Jeko’s report stated that when she attempted to interview Hayes, “he repeatedly,
and rather incessantly stated ‘I refuse to speak. . . . This is against my rights. . . .’ ” The
attempt to interview Hayes ended after about five minutes. The report further states:
“Due to insufficient information, the undersigned is not able to render a fully informed
opinion regarding Mr. Hayes’[s] competency to stand trial.” She did observe, however,
that “[r]ecent records document Mr. Hayes’[s] harboring the paranoid delusions
regarding entities in the legal system that include the judge, district attorney and his own
investigator. Recent records also document his exhibiting mild hypomania, guardedness
and irritability consistent with one suffering from an untreated Bipolar Disorder. He
refuses antipsychotic medication or, for that matter, any psychotropic medication that
have decreased his paranoid delusions and increased his mental flexibility in the past.”
       A competency hearing was held before Judge Wong on August 15, 2012. Based
on the reports, Byrne and Quigley stipulated that Hayes was competent. The court agreed
and reinstated the criminal proceedings.
                                             XII.
                                          Sentencing
       The court appointed Andrea Hartsough as advisory counsel to Hayes for
sentencing. The probation department submitted an initial report on July 12, 2012,
recommending that Hayes be granted probation. On July 16, 2012, the court ordered a
new report because the probation department had reviewed only one of 13 police reports.
The court concluded the probation department was “not fully informed.” The second
presentence report recommended that probation be denied. The People filed a sentencing
memorandum, recommending a sentence of six years, eight months in state prison (for


                                               33
the felony counts), consecutive to six years in county jail (for six of the misdemeanor
counts).
       The court sentenced Hayes on October 17, 2012. Hayes repeatedly told the court
that he “refuse[d] to appear.” Finally Hayes said: “I refuse to appear, I will be removed
from the courtroom at this time. I refuse to appear. I refuse to appear. I cannot be
sentenced by force. I do not have the trial transcripts. Why isn’t the court reporter taking
this down? I refuse to appear. I will be removed from the courtroom now. I refuse to
appear. You cannot do this.” The court replied: “Let the record reflect Mr. Hayes is
yelling at the top of his voice, four sheriffs deputies are forcing him to sit down.”
       On counts 1 through 5, the court sentenced Hayes to a total state prison term of six
years, eight months.10 On each of counts 6 through 50, the court sentenced Hayes to six
months in county jail, for a total of 22 years, six months, to be served consecutive to the
state prison term. Hayes also received six-month concurrent terms for the remaining
misdemeanor counts on which he was convicted. Thus, the court sentenced Hayes to 29
years, two months of confinement, well beyond double the 12-year, 8-month sentence
recommended by the assistant district attorney. The court ordered that Hayes register as
a sex offender, pursuant to section 290.006.
       Hayes filed a notice of appeal on August 13, 2012, before a final judgment had
been entered in his case. We ordered that Hayes’s premature notice of appeal be treated
as having been filed immediately after the rendition of the October 17, 2012 judgment.
Hayes filed a petition for writ of habeas corpus on May 20, 2014, which we ordered
would be considered with this appeal.
                                       DISCUSSION
       In his appeal (as well as his petition for habeas corpus), Hayes argues that the
criminal proceedings in his case violated his due process rights11 because he was

       10
         This included four years on Count 1, and four consecutive eight-month
sentences on counts 2 through 5.
       11
          Hayes also contends that the court’s failure to address his incompetency and its
decision to allow him to represent himself violated his Sixth and Eighth Amendment

                                               34
incompetent to stand trial and incompetent to represent himself. We agree. The trial
court had a sua sponte duty to hold a competency hearing because there was substantial
evidence before it that Hayes was incompetent to stand trial, but it failed to do so prior to
the verdict. We also agree with Hayes that this error requires reversal of his conviction.12
                                              I.
                                      Legal Standards
       A. Competence to Stand Trial
       “[A] person whose mental condition is such that he lacks the capacity to
understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a trial.” (Drope v. Missouri
(1975) 420 U.S. 162, 171 [95 S.Ct. 896, 903] (Drope)). The right not to be tried while
mentally incompetent derives from the due process clause of the state and federal
constitutions. (Ryan v. Gonzales, supra, 133 S.Ct. at p. 703; People v. Hayes (1999) 21
Cal.4th 1211, 1281; see Pate v. Robinson (1966) 383 U.S. 375, 376–378 [86 S.Ct. 836]
(Pate); People v. Pennington (1967) 66 Cal.2d 508, 517–519 (Pennington).) Trying a
defendant who is mentally incompetent has been compared to trying someone “ ‘in
absentia; the mentally incompetent defendant, though physically present in the
courtroom, is in reality afforded no opportunity to defend himself.’ ” (Drope, supra, 420
U.S. at p. 171.) The Supreme Court has described the prohibition as “fundamental to an
adversary system of justice.” (Id. at p. 172.)

rights. We need not address these arguments in light of our determination that the trial
court denied Hayes due process in violation of the Fourteenth Amendment and article I,
section 7 of the California Constitution. We note, however, that the United States
Supreme Court has held that the right to competence at trial flows from the due process
clause, not the Sixth Amendment. (Ryan v. Gonzales (2013) ___ U.S. ___ [133 S.Ct.
696, 703].)
       12
          We therefore do not reach his arguments that his sentence was vindictive,
violated the Penal Code and constitutes cruel and unusual punishment. Nor do we
address his challenge to the requirement that he register as a sex offender. Our
conclusion and disposition also renders moot similar arguments that Hayes makes on
habeas corpus.


                                             35
       The basic test for competence is well settled. A defendant is deemed competent to
stand trial if he has “ ‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and . . . has a rational as well as factual
understanding of the proceedings against him.’ ” (Dusky v. United States (1960)
362 U.S. 402, 402 [80 S.Ct. 788] (per curiam) (Dusky); accord, People v. Lightsey (2012)
54 Cal.4th 668, 690 (Lightsey); see also § 1367, subd. (a) [“A defendant is mentally
incompetent for purposes of this chapter if, as a result of mental disorder or
developmental disability, the defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational manner”].)13
       The trial court plays a critical role in safeguarding the defendant’s due process
right not to be tried while incompetent. “Whether on motion of the defendant or sua
sponte, the trial court is required to suspend criminal proceedings and hold a hearing to
determine competency whenever substantial evidence of incompetence is introduced.”
(People v. Hayes, supra, 21 Cal.4th at p. 1281; accord, Pennington, supra, 66 Cal.2d at p.
518.) Substantial evidence is “evidence that raises a reasonable or bona fide doubt
concerning the defendant’s competence to stand trial.” (People v. Blair (2005) 36 Cal.4th
686, 711, overruled on another ground in People v. Black (2014) 58 Cal.4th 912, 919.)
Such evidence may be in the form of expert testimony but may also consist in whole or in
part of “ ‘a defendant’s irrational behavior, his demeanor at trial, and any prior medical
opinion on competence to stand trial,’ ” all of which are relevant and any one of which
standing alone may be sufficient. (People v. Ary (2004) 118 Cal.App.4th 1016, 1024
(Ary I), quoting Drope, supra, 420 U.S. at p. 180.) “Once such substantial evidence
appears, a doubt as to the sanity of the accused exists, no matter how persuasive other
evidence—testimony of prosecution witnesses or the court’s own observations of the
accused—may be to the contrary.” (Pennington, supra, 66 Cal.2d at p. 518.) “ ‘Even
when a defendant is competent at the commencement of his trial, a trial court must


       13
          Specific protections against denial of the due process right not to be tried while
mentally incompetent are embodied in the Penal Code. (See §§ 1367 et seq.)


                                              36
always be alert to circumstances suggesting a change that would render the accused
unable to meet the standards of competence to stand trial.’ ” (Lightsey, supra, 54 Cal.4th
at p. 690.) On appeal, “in resolving the question of whether, as a matter of law, the
evidence raised a reasonable doubt as to defendant’s mental competence, we may
consider all the relevant facts in the record.” (People v. Young (2005) 34 Cal.4th 1149,
1217.)
         Because a court must “consider all of the relevant circumstances” in determining
whether there is substantial evidence of incompetency, defense “counsel’s opinion is
undoubtedly relevant.” (People v. Howard (1992) 1 Cal.4th 1132, 1164; Drope, supra,
420 U.S. at p. 177, fn. 13 [defense counsel is person with “ ‘closest contact with the
defendant[;]’ ” thus, her opinion “is unquestionably a factor which should be
considered”].) However, “[t]he opinion of counsel, without a statement of specific
reasons supporting that opinion, does not constitute substantial evidence.” (Cal. Rules of
Court, rule 4.130(b)(2).)
         If a defendant is found to be incompetent at a competency hearing, the court
commits the defendant to an appropriate treatment facility for restoration of competency.
(§ 1370, subd. (a)(1)(B).) When the director of the treating facility certifies that the
defendant has regained competency, the defendant is returned to the court. (§ 1372,
subd. (a).) A further hearing is not required and the trial court may summarily approve
the certification. (People v. Mixon (1990) 225 Cal.App.3d 1471, 1480.) However,
defense counsel may challenge the certification and request a section 1369 competency
hearing. (Id. at pp. 1480, 1482.) Moreover, as already discussed, if substantial evidence
thereafter arises suggesting defendant is incompetent, the court must revisit the issue.
(See Lightsey, supra, 54 Cal.4th at pp. 690–691.)
         B. Competency to Represent Oneself
         A defendant found competent to stand trial may nonetheless be denied the right of
self-representation. In Indiana v. Edwards (2008) 554 U.S. 164, 128 S.Ct. 2379, the
Supreme Court considered the “gray area” between the “minimal constitutional
requirement that measures a defendant’s ability to stand trial and a somewhat higher


                                             37
standard that measures mental fitness for another legal purpose.” (Id. at p. 172.) The
question at issue was whether a state could deny the right of self-representation at trial to
a defendant in the gray area without violating the Sixth Amendment. (Id. at pp. 173–
174.) The Court ruled that a state could do so. (Id. at p. 174.) “[T]he Constitution
permits States to insist upon representation by counsel for those competent enough to
stand trial . . . but who still suffer from severe mental illness to the point where they are
not competent to conduct trial proceedings by themselves.” (Id. at p. 178.) In People v.
Johnson (2012) 53 Cal.4th 519, our Supreme Court concluded that “California courts
may deny self-representation when Edwards permits . . . .” (Id. at p. 525.)14
                                              II.
The Trial Court’s Failure to Hold a Competency Hearing Despite Substantial Evidence
            of Hayes’s Incompetence Violated His Right to Due Process.
       In September 2011, Judge Wong found Hayes was incompetent to stand trial
based on the reports of Doctors Jeko and Novak opining that Hayes harbored “clearly
evidenced fixed paranoid delusions,” his history of mental illness and delusions were
indicative of mental illness, he refused to take antipsychotic medications necessary to
“loosen” his delusional ideation, and he was determined both to pursue a defense based
on his delusional beliefs and not to pursue a mental health-based defense. The trial court
agreed with these mental health professionals that Hayes was “unable to assist counsel in
the conduct of the defense in a rational manner as a result of a mental disorder.” Hayes’s
comments at the mental competency hearing outlining the defense he intended to present
“based upon hacking, based upon third party sabotage, based upon harassment, difficulty
detecting them, setting them up to get caught up in the legal system” were, in the court’s
view, a further indication that he did “not have the ability to assist counsel in a rational


       14
          The federal due process clause is not violated by allowing a defendant to
represent himself so long as he is competent to stand trial; no higher standard of
competency is constitutionally required. (Godinez v. Moran (1993) 509 U.S. 389, 402
[113 S.Ct. 2680].) The California courts have not addressed whether the state
constitutional due process clause (or right to counsel provision) requires a higher level of
competency before a defendant may represent herself. We do not reach that issue here.


                                              38
manner at this time” as “the direct result of ongoing thoughts regarding [Hayes’s] feeling
that [he was] a victim of a conspiracy of harassment.”
       Five months later (and two months after Hayes was admitted to Napa State
Hospital), the court held he was restored to competency based on the hospital’s report
that—while diagnosing him with Bipolar Disorder with recent manic severe psychotic
features, Personality Disorder with antisocial and narcissistic traits and Alcohol Abuse,
observing that he exhibited “beliefs and behaviors . . . consistent with Delusional
Disorder,” and indicating he had been medicated (though had resisted and only been
partially compliant) with Risperidone “for psychosis and mood instability”—stated that
he understood that his conspiracy theories might not be susceptible of proof to or belief
by a jury and that he could think “flexibly” and was willing to abandon those theories if
evidence could not be amassed to support them.
       Even shortly before and shortly after the court held Hayes had been restored to
competency there were red flags indicating that the conditions that had previously led to
the court’s initial decision holding him incompetent (that he was delusional and intent on
presenting a defense based on his delusions) remained, and that the facts on which the
hospital’s recommendation was based (that he was no longer insisting on a delusion-
based defense) were either incorrect or had changed. First, his first appointed counsel,
Martin, did not stipulate to the restoration of competency, instead declaring a conflict,
which led to the court allowing him to withdraw as Hayes’s counsel. When Hayes then
sought to represent himself and indicated he would be content with his second appointed
counsel, Furst, acting as his advisory counsel, Furst demurred, saying he was disinclined
to serve as Hayes’s advisory counsel.
       After the court granted Hayes’s Faretta15 motion, these red flags quickly ripened
into serious evidence of Hayes’s inability to rationally assist in, much less conduct, his
own defense. Beginning with the preliminary hearing, Hayes testified about a delusional
conspiracy specifically designed to harass him. His testimony, which we have already

       15
            Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525].


                                              39
extensively recounted, indicates his delusional thinking was not only continuing but
expanding. It encompassed not only the events underlying the charges against him but
also the events in the legal proceedings themselves; for example, he testified that his
misdemeanor battery defense attorney (Budaj) had participated in the conspiracy against
him by raising a doubt about his competency.
       Hayes repeated and further expanded on his delusions when he argued for release
on his own recognizance, extending the conspiracy to Quigley, the assistant district
attorney. In further pre-trial communications with the court, Hayes accused his court-
appointed investigator, Murphy, of lying and purposefully giving him false legal advice,
adding Murphy to the ever-growing list of people acting in concert against him. In a
further pre-trial letter, he apologized to the court for appearing to be disrespectful,
explaining that it was “the conspiracy’s strategy to make this happen, in attempt to deny
me my right to self-representation.” At a pre-trial hearing, he added his former counsel,
Martin, to the conspiracy, claiming that he had acted in concert with the complaining
witness (Crawford). He stated he would seek to disqualify the entire district attorney’s
office because Quigley and other members of the district attorney’s office were engaged
in misconduct he viewed as part of the conspiracy.
       In pretrial proceedings and at trial before Judge Dekreon, Hayes repeatedly made
it clear that his primary “defense” was that he was the victim of a conspiracy. His
proposed defensive jury instructions—almost all of which the court rejected—left no
doubt about that; nor did his witness list naming, among others, Evan Budaj, Randall
Martin, “Nathan Quigley (after disqualification),” “John Keane, and all police officers
listed on all police reports,” San Francisco District Attorney George Gascón, San
Francisco Sheriff Ross Mirkarimi, San Francisco Supervisors John Avalos and Christine
Olague and Chief Deputy Public Defender Matt Gonzalez. The same is true of his
attempts to subpoena Budaj, Martin and Gonzalez. In ruling on permissible questions
during voir dire and motions to quash Hayes’s subpoenas, the court repeatedly
admonished Hayes that the alleged conspiracy did not constitute a defense and was not
relevant to the case. These admonitions went nowhere, and Hayes’s defense strategy at


                                              40
trial remained focused on the harassment he believed he had been subjected to at the
hands of everyone from his neighbors to his attorneys to government officials, who were
all acting together against him.
       Hayes unabashedly adhered to and relied on his delusions of conspiracy as his
defense in his lines of questioning and in his own testimony. His questions and his own
testimony, as well as the e-mails he had sent to Crawford, were not only bizarre16 but
reflected extreme paranoia.17 Not surprisingly, apart from his own testimony, Hayes was
unable to present any objective evidence—that is, evidence outside his own perceptions
and beliefs—to support his theory of a nefarious and metastasizing conspiracy. It was
painfully apparent that the conspiracy was real in Hayes’s mind, but equally apparent that
it was not real.
       Finally, Hayes’s closing arguments likewise focused on his delusions and in some
respects were incomprehensible. He was “intensively harassed,” his computer was
hacked and blown up, his communications were monitored and intercepted. This was all
part of a grand “design” which entailed him being subjected to harassment, reacting in

       16
          For example, he asked witnesses about the taste of borage and the color of its
flowers, the “international superman,” “quantum entanglement” and “psychic
disturbances.”
       17
          For example, he asked Officer Keane whether he had been in touch with
Hayes’s former attorney Evan Budaj at the time he was investigating this matter and
asked Crawford whether Steve had tried to get Hayes to kill himself and whether Steve
told people in the neighborhood that Hayes had herpes and was HIV positive. On direct
examination, he testified he heard neighbors reading or performing both his e-mails he
sent to Crawford and e-mails he never sent, and “[t]hey were trying to get people to kick
my ass, threaten to re-break my neck again” and “following me around the city saying,
‘See that guy over there, he hit a girl and gave her herpes,’ . . . .” He testified that shortly
before he was arrested, his television started “flashing on and off, and I’m looking up and
there’s a police helicopter hovering up above looking down into my window. . . . [¶]
This was all a plan to make me appear to be crazy. That is what they were doing. That’s
the nature of the type of harassment.” On cross-examination, he testified that the
restraining orders were part of the harassment: “Yes. You overload somebody with like
conflicts that they’re not actually involved in. It’s game theory. [¶] You zap their
resources, overload them with conflicts, put other people on them. [¶] It’s classic CIA
kind of stuff.”


                                              41
anger, being “arrested and then fed into the machine.” Third parties used Crawford “as a
medium through which to attack [him],” he did not threaten her but merely “sp[u]n a
fictional universe” into her email. He asked the jury, “What you do with somebody who
starts singing on the witness stand one minute and screaming at life and death fury at the
D.A. the next?” He answered: “You realize people want to live and people want to
sing.”
         Hayes adhered to his delusions throughout the pre-trial proceedings and the trial—
despite the absence of objective evidence supporting them. Likewise he insisted—
despite the trial court’s repeated rejection of his arguments and exclusion of evidence and
jury instructions based on them—that the conspiracy against him provided a defense to
the charges. This behavior contradicted the central conclusion of the Napa State Hospital
report on which the court’s restoration of Hayes’s competency was based: that Hayes
could “think flexibly” and was prepared to abandon a defense based on his delusions if
they could not be supported by evidence. At no point did Hayes offer the defenses his
prior counsel had suggested (which he had consistently rejected): that his delusional
mental state at the time he engaged in the conduct for which he had been charged negated
the intent element required for the charged offenses or that his mental illness in whole or
in part excused his conduct.
         Hayes’s history of mental illness, the reasons for the court’s initial finding that he
was incompetent, the bases on which he was determined to have been restored to
competency, and the restoration report stating he was only partially compliant with his
medication regimen, in conjunction with the primary defenses Hayes offered throughout
the pre-trial proceedings and trial, should have caused the court to seriously doubt his
competency at numerous points prior to the jury reaching a verdict. Substantial, indeed
considerable, evidence showed Hayes, as a result of his mental disorder and paranoid
delusions, was unable to assist counsel in his defense, much less conduct his own
defense, in a rational manner. Yet, at no time between the restoration of competency
ruling and the verdict did the trial court declare a doubt, suspend the proceedings and
hold a competence hearing. Recognizing the significant deference we afford the trial


                                               42
court on this issue, we nonetheless conclude the court abused its discretion by failing to
declare a doubt as to Hayes’s competence to stand trial during that period of time.
       People v. Murdoch (2011) 194 Cal.App.4th 230 (Murdoch) is analogous.
Murdoch was charged with assault with a deadly weapon and battery with serious bodily
injury. (Id. at p. 233.) On his second court appearance, the magistrate ordered a
competency examination and appointed a psychologist and a psychiatrist to examine him.
(Ibid.) Both found Murdoch suffered from severe mental illness but concluded he was
competent to stand trial because of medication he had been prescribed. (Ibid.) However,
Murdoch had informed the examiners he did not always take the medication or that he
had stopped taking it, and they opined that he could become incompetent if he continued
to refuse medication. (Ibid.)
       The trial court nonetheless found Murdoch mentally competent and reinstated
proceedings. (Murdoch, supra, 194 Cal.App.4th at p. 234.) The public defender declared
a conflict of interest, and the court appointed another public defender to represent
Murdoch. (Ibid.) Defense counsel did not state a doubt as to Murdoch’s competence,
and Murdoch subsequently requested to represent himself. (Ibid.) The court granted his
request. (Ibid.)
       During pretrial proceedings, Murdoch sought to have pages of the Bible marked as
exhibits. (Murdoch, supra, 194 Cal.App.4th at p. 234.) When the court inquired as to
why, he told the judge: “ ‘What I have to do here is I have to demonstrate that there’s
something else going on in this world that people are aware of. I’m going to make
allegations about the plaintiffs in this case that they aren’t even human, and that
they’re—’ ” (Ibid.) The judge interrupted, asking “ ‘The defense is they’re not human?”
(Ibid.) Murdoch confirmed that was his defense. He stated further that he intended to
ask the witnesses if they “ ‘are from Sodom and Gomorra,’ ” asserting that they are “ ‘not
human,’ ” that they lacked shoulder blades and could not shrug their shoulders and that
shoulder blades “ ‘are symbolic of angelic beings.’ ” (Ibid.)
       At trial, the victim of the assault testified that Murdoch had struck the back of his
head with a beer bottle and pummeled him with fists. (Murdoch, supra, 194 Cal.App.4th


                                             43
at p. 235.) When it came time to cross-examine the victim, Murdoch stated he was
unsure whether the witness was “ ‘the imposter.’ ” (Ibid.) Upon instruction from the
court to “ ‘[j]ust ask the question,’ ” Murdoch “asked his only question: ‘Can you shrug
your shoulders like this?’ [The witness] did and defendant stated, ‘That’s all I have. This
isn’t the man that I believe attacked me.’ ” (Ibid.) The defendant was convicted and
sentenced to three years in state prison. (Ibid.)
       On appeal, the court reversed Murdoch’s conviction, holding there was substantial
evidence raising a reasonable doubt about his competence and that the trial court erred in
failing to conduct a competency hearing. (Murdoch, supra, 194 Cal.App.4th at pp. 236-
239.) Citing People v. Rogers (2006) 39 Cal.4th 826, 847, the court recognized that the
federal due process clause and state law “ ‘require a trial judge to suspend trial
proceedings and conduct a competency hearing whenever the court is presented with
substantial evidence of incompetence, that is, evidence that raises a reasonable or bona
fide doubt concerning the defendant’s competence to stand trial.’ ” (Murdoch, at p. 236.)
Recognizing that “ ‘ “ ‘[m]ore is required to raise a doubt [of competence] than mere
bizarre actions [citation] or bizarre statements [citation] . . . or psychiatric testimony that
defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with
little reference to defendant’s ability to assist in his own defense [citation],’ ” ’ ” the court
found “ ‘more’ exist[ed]” in Murdoch’s case. (Id. at pp. 236–237.)
       Specifically, the psychologist and psychiatrist had connected Murdoch’s
competence to his medication, observed that his competence was dependent on his taking
it and reported that he had stopped or was not consistently taking it. (Murdoch, supra,
194 Cal.App.4th at p. 237.) Murdoch’s bizarre statements at trial were not in isolation
but in the context of knowing he had a mental illness and had stopped taking his
medication. (Id. at pp. 237–238.) There was no evidence indicating Murdoch’s bizarre
statements were an attempt to feign incompetence or to delay the proceedings, or were
the product of “ ‘ “ ‘sheer temper.’ ” ’ ” (Id. at pp. 237, 239.) On the contrary, those
statements “w[ere] his defense.” (Id. at p. 239.) Further, the psychologist stated in her
report that Murdoch had an explanation for his conduct that was rational, whereas the


                                               44
defense he revealed at the preliminary hearing and employed at trial was not. (Id. at
p. 238.) In short, the court concluded: “[Murdoch’s] statements taken together with the
experts’ reports provide the substantial evidence necessary to demonstrate a reasonable
doubt as to whether he had in fact decompensated and become incompetent as the experts
had warned. Even if we were to assume this evidence was not enough to demonstrate the
requisite reasonable doubt as to defendant’s competence, given the record before the
court demonstrating defendant’s gossamer competence, the court should have made an
inquiry to determine whether defendant had, in fact, continued to refuse medication.”
(Ibid.)
          Significantly, in Murdoch, the court recognized the absence of any indication that
Murdoch did not understand the nature and purpose of the proceedings. (Murdoch,
supra, 194 Cal.App.4th at p. 239.) However, it observed that competence means the
defendant is able both to understand the proceedings “ ‘and to [assist in or] conduct his
own defense in a rational manner.’ ” (Id.) The evidence “established a reasonable doubt
as to whether [Murdoch] could conduct his own defense in a rational manner,” and “the
trial court erred in not conducting a hearing to determine his competence.” (Ibid.)
          This case is similar in key respects to Murdoch. Beginning with the preliminary
hearing and continuing as proceedings progressed, it became clear that Hayes’s
delusional thinking controlled his approach to the case and that the state hospital’s and
court’s reasons for concluding he had regained competency were no longer (if they had
ever been) valid. Like Murdoch, Hayes’s bizarre statements and inappropriate behavior
in court were not out of the blue; they were in the context of Hayes having suffered from
serious mental illness that had led to repeated hospitalizations and a prior determination
that he was incompetent. Similar, too, is the fact that the initial reports on which the
court relied to hold Hayes incompetent suggested medication would aid in restoring
competence, the court authorized involuntary administration of medication, and the
restoration of competency report indicated Hayes had been on antipsychotic medication
but was not fully compliant. Yet there is no indication that the court, at any time between
the restoration determination and the verdict, questioned whether Hayes was taking the


                                              45
recommended medication despite his repeated expressions of delusional thinking. (And,
as later became apparent, he was not.) Also as in Murdoch, there was no indication that
Hayes sought, through his tactics, to feign incompetence in order to delay or disrupt
proceedings. Indeed, Hayes did not waive time for trial when he had the opportunity,
repeatedly and vociferously denied he was ever incompetent, and objected to the
competency proceedings that did occur—proceedings he regarded as further evidence of
the conspiracy targeting him. Nor did Hayes present his delusional defense out of spite
or anger at the trial judge—he insisted on it from the beginning of his case and never
wavered.18
       The People attempt to distinguish Murdoch, arguing the defense Hayes presented,
unlike that in Murdoch, “was not completely bizarre and outside the realm of
possibilities” and that Hayes even “adduced some evidence of his conspiracy-of-
harassment theory.”19 This argument is fatuous. Indeed, at trial, the assistant district
attorney argued that Hayes had never provided “any actual documentation or any kind of
evidence that would suggest there is any kind of conspiracy.”
       Now, by contrast, the People cite portions of Hayes’s e-mails to Crawford and
Hayes’s own trial testimony to suggest there could have been a conspiracy. Hayes’s
subjective beliefs that there was a widespread conspiracy to make him appear crazy and
have him committed did not prove that such a conspiracy was real any more than
Murdoch’s beliefs, had he testified to them, would have proved that the victims of his


       18
          Indeed, Hayes continued on appeal to assert that he was not incompetent and
was capable of representing himself and that attempts to portray him as incompetent were
part of the harassment and a “maneuver [that was] at the crux of the conspiracy” against
him. We denied his request to represent himself on appeal.
       19
          The evidence the People point to predominantly consists of Hayes’s own beliefs
that he was being harassed, not actual evidence of such harassment, much less of any
conspiracy. That Hayes believed he was being harassed by an ever-expanding group of
people acting in concert tends to prove, not disprove, that he was delusional. To the
extent the People point to evidence that persons Hayes had accosted spoke with others
about his behavior, such facts do nothing to refute the considerable evidence of his
delusional thinking.


                                             46
assault were from Sodom and Gomorrah and not human. Neither set of beliefs were
rational, and neither was supported by any objective evidence.
       Moreover, if the People mean to argue that there was evidence showing Hayes was
not delusional, they are not only unconvincing but off the mark. The question is whether
there was substantial evidence that Hayes was delusional, not whether there was any
evidence to the contrary. The evidence in this case, including Hayes’s e-mails, his
testimony, and other aspects of his defense overwhelmingly demonstrated that his belief
system was delusional, and seriously so. This includes his belief that so many different
people had conspired in an effort to make him appear crazy—from Crawford, her
associates and neighbors, to police, the district attorney’s office (including Quigley), his
own attorneys (Budaj and Martin) and his investigator (Murphy) in the case. It includes
his beliefs that the conspirators had hacked into his computer, were reading his e-mails
and attempting to interfere with his study for the bar examination; that they had caused
his computer to blow up; that they were reading his sent and unsent e-mails and laughing
at him outside his window; that (as evidenced by his letter) the district attorney would
take action to investigate the conspiracy and would involve the FBI; that part of the
conspiracy’s object was to declare him incompetent and send him to the state mental
hospital; and that the conspiracy was part of a political plot and involved tactics used by
the CIA. It was plain from the evidence in this case (or lack of it) that there was no such
conspiracy other than in Hayes’s own mind and that Hayes’s delusion that there was such
a conspiracy deprived him of the ability to rationally comprehend that no jury or judge
would believe there was such a conspiracy, much less accept that it necessitated or
justified his criminal acts.
       Just as in Murdoch, Hayes’s delusions in this case were his defense: he
consistently offered them as such from the preliminary hearing through the trial, just as
he had done at the outset of the case with the result that he was found incompetent. This
could not, or should not, have escaped the notice of Judge Dekreon, who limited Hayes’s
questions to the jury on voir dire, quashed subpoenas (including those directed to political
officials), refused to let him recall Crawford, ruled that other witnesses had no relevant


                                             47
evidence to offer, attempted repeatedly to redirect him to relevant matters on direct
examination, sustained objections to his questions, struck portions of his testimony and
his closing argument and declined to give many of his proffered jury instructions—all
because, as she repeatedly advised Hayes, the conspiracy he was attempting to prove and
argue did not and could not constitute a defense. Hayes’s continued reliance on a
conspiracy defense, despite Judge Dekreon’s repeated warnings and rulings, is further
evidence that he was unable rationally to defend himself.
       The court in Murdoch concluded that the combination of a delusional defense at
trial, in combination with knowledge that Murdoch had a serious mental illness, was
competent when he was taking his medication, and may have ceased or was inconsistent
in taking the medication, constituted substantial evidence that Murdoch was incompetent.
A similar cluster of considerations constitutes substantial evidence that Hayes was
incompetent throughout the criminal proceedings in this case: he mounted a bizarre and
legally untenable defense, was known to have a serious mental illness, had demonstrated
an inability to work cooperatively with counsel, was considered competent only because
the state hospital thought he could think flexibly and would abandon a defense based on
his conspiracy theory absent evidence to support it, and contrary to the state hospital
report insisted on pursuing the delusional conspiracy defense without evidence and in the
face of repeated warnings that it was irrelevant to any viable defense. Further, as the
state hospital report noted, he had been resistant to medications and only partially
compliant even when he was at the hospital.
       Here, there were multiple points at which the court erred in not raising a doubt and
holding a hearing to determine Hayes’s competence. The court should have done so after
the preliminary hearing when it was apparent that Hayes was intent on pursuing his
conspiracy defense. It should have done so following the various pre-trial proceedings
during which his correspondence with the court, purported firing of his investigator,
allegations that the police, district attorney and his own counsel and investigator were
involved in the conspiracy, and arguments about the relevance of certain discovery all
showed that the focus of his defense was a factually implausible and legally untenable set


                                             48
of delusions. Again, the court should have declared a doubt following the early part of
the trial where Hayes’s arguments regarding voir dire, submission of proposed jury
instructions and submission of a witness list made plain that the report leading to the
ruling that his competence was restored was based either on an assessment that was
inaccurate at the time or on circumstances that had changed entirely in the interim.
Hayes was neither flexible nor willing to abandon his factually unsupported delusion-
based defenses, which he was as mired in as he had been at the outset of the case when he
was found incompetent. Indeed, his delusions had expanded to encompass an
investigator and the lawyers on both sides of the case.
       The court should also have declared a doubt when Hayes’s cross-examinations at
trial, his own testimony, his attempts to subpoena witnesses during trial and his closing
arguments all evidenced his continued focus on an irrational and delusion-based defense.
At all of these points, the court could and should have revisited his competence, and its
failure to do so violated Hayes’s right to due process.
       The People argue that Hayes was competent and that, in any event, the trial judge
found him to be competent, and we must defer to her finding. Indeed, the People go so
far as to suggest that because a number of judges presiding over various hearings in the
case failed to declare a doubt, this demonstrates that Hayes was in fact competent. Both
arguments lack merit.
       As to the first, the People focus on the fact that Hayes had attended law school and
was able to prepare and submit jury instructions, make objections (including some that
were sustained), cross-examine witnesses and perform other courtroom tasks in a
competent manner. The People’s argument addresses only the first prong of the
competency standard: that the defendant be able to understand the nature of the
proceedings and his status in the proceedings. While Hayes apparently came to believe
the proceedings themselves were tainted by the conspiracy if not a part of it, we cannot
say that there was substantial evidence that he was unable to understand them. But the
People fail convincingly to address the second prong of the competence standard, which
must also be met: that the defendant be able “to assist counsel in the conduct of a defense


                                             49
in a rational manner.” (§ 1367, subd. (a), italics added.) The defendant must meet both
prongs of the test to be considered competent. (Murdoch, supra, 194 Cal.App.4th at p.
239.) Whether or not Hayes could cross-examine a witness or object to evidence, his
efforts at trial were focused on presenting a defense consisting of a legally irrelevant and
factually nonsensical proposition, rooted in his delusions, that there had been a vast
conspiracy against him by many people that essentially forced him to act as he did.
Because of his delusions, he could not and did not assist counsel, much less himself, in
pro per, in conducting his defense “in a rational manner.” (See Dusky, supra, 362 U.S.
402, 402 [“ it is not enough for the district judge to find that ‘the defendant (is) oriented
to time and place and (has) some recollection of events,’ but that the ‘test must be
whether he has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding’ ”].)
       The People’s second argument—that we must defer to the court’s determination
that Hayes was competent—is incorrect for several reasons. Judge Dekreon stated, at the
time she declared a doubt based on concerns expressed by jail psychiatric staff, that in her
view defendant was “competent during the course of the trial.” However, this was not a
finding based on the kind of evidence and adversarial proceeding to which the statutes
and constitution entitle a defendant when there is a doubt about his competence. Indeed,
no psychologist or psychiatrist had opined on the issue since near the outset of the case.
Nor had counsel even been appointed, much less presented argument, on behalf of Hayes
in regard to his competency during trial.
       It is true, of course, that once Hayes had been restored to competency, the trial
court was not obligated to initiate a second competency proceeding absent “ ‘a substantial
change of circumstances or . . . new evidence’ casting serious doubt [on the finding that
defendant was competent].” (People v. Jones (1991) 53 Cal.3d 1115, 1153.) But by the
time of trial, it should have been obvious to anyone familiar with the prior competency
proceedings that the facts described in the restoration report either had changed or were
inaccurate. The first set of opinions, which indicated Hayes was insistent on presenting a
delusion-based defense, had led to a finding of incompetence. The second—the


                                              50
restoration report by Napa State Hospital—concluded Hayes had been restored to
competency based on the belief that Hayes could be “flexibl[e]” in his approach to the
case and was willing to abandon a conspiracy-based defense if evidence could not be
found to support that theory.
       The trial court did not grapple with the circumstances as they existed at the time of
trial, much less how those circumstances compared to the facts that were the basis for the
restoration of competency determination. The judge did not discuss the elephant in the
room during the trial that belied any contention that Hayes met that standard: i.e., that he
perseverated on his delusions as his core defense; that he did so in the face of having
previously been held incompetent based on those very same delusions, rendering him
unable to assist in a rational defense; that Hayes’s mental state at trial was 180 degrees
different from that described in the state hospital report upon which the restoration of
competency was based. And finally, the judge did not explain how Hayes’s delusion-
based defense or his decision to rely on it—even though the court had repeatedly warned
him it was not a defense to the charges—could possibly have demonstrated Hayes’s
ability to assist in (or present) his defense in a rational manner.
       In short, the trial judge did not follow the statutory procedure, apply the governing
legal standard or address the relevant evidence in stating her view. Under these
circumstances, her conclusionary statement carries no weight.
       Finally, the state asserts that the competency determination made at the time of
sentencing should answer the question before us. It does not. It was only after the trial
that Judge Wong appointed professionals, held a hearing and determined Hayes was
competent. Were the issue Hayes’s competence to be sentenced, we would be required to
defer to Judge Wong. But the issue here is whether Hayes was competent to stand trial,
not whether he was competent to be sentenced. Judge Wong made a finding only as of
the time of sentencing and only as to Hayes’s competence for purposes of sentencing.
Neither the psychiatrists (Kessler and Jeko) nor Judge Wong were engaged in a
retrospective attempt to determine whether Hayes had been competent to defend himself
or assist in his defense prior to or during the trial. There is no indication that they


                                              51
inquired as to Hayes’s defense of himself at trial. Judge Wong’s decision thus simply
does not bear on the question of Hayes’s competency to defend himself (or assist in his
defense) at trial.
                                            III.
The Trial Court’s Violation of Hayes’s Right to Due Process Requires Reversal of His
                                    Conviction.
       The failure to hold a competency hearing when there is substantial evidence that a
defendant is incompetent has rarely, if ever, been held to constitute harmless error. In
People v. Pennington, supra, 66 Cal.2d 508, 521 and People v. Stankewitz (1982) 32
Cal.3d 80, 94, the California Supreme Court held that erroneous denial of a competency
hearing “is per se prejudicial.” (Accord Ary I, supra, 118 Cal.App.4th 1016, 1028 [“it is
certainly the case that the trial court’s error in failing to hold a competency hearing when
one is warranted is not subject to harmless error review”]; cf. Lightsey, supra, 54 Cal.4th
668, 699 [allowing potentially incompetent defendant to represent himself during
competency hearing was structural error and thus reversible per se].) Generally, the
courts have held the appropriate remedy for a trial court’s failure to hold a competency
hearing is reversal of the conviction. (People v. Johnwell (2004) 121 Cal.App.4th 1267,
1280–1281 [citing Pate, supra, 383 U.S. 375, 386–387; Dusky, supra, 362 U.S. at p. 403;
Stankewitz, at p. 94; People v. Superior Court (Marks) (1991) 1 Cal. 4th 56, 70–71; and
People v. Hale (1988) 44 Cal.3d 531, 541].)
       However, in recent years, our court and our sister courts have grappled further
with the remedy for failure to hold a competency hearing, reaching different conclusions
on whether such a due process violation may sometimes be cured through a retrospective
competency hearing. (Compare Ary I, supra, 118 Cal.App.4th at pp. 1028–1029
[remanding for consideration whether retrospective competency hearing was feasible and,
if so, holding such hearing] and People v. Kaplan (2007) 149 Cal.App.4th 372, 387–389
[same] with People v. Johnwell, supra, 121 Cal.App.4th at p. 1280 [holding erroneous
denial of a competency hearing that comported with due process required reversal and
retrial and could not be cured by retrospective determination of defendant’s mental


                                             52
competence during trial].) In People v. Ary (2011) 51 Cal.4th 510 (Ary II), our Supreme
Court suggested, but did not decide, that holding a retrospective competency hearing is
not a constitutionally permissible remedy for the failure to hold a competency hearing.
(See id. at pp. 514, fn.1, 516–517 [noting “correct procedure . . . would [be] to reverse the
judgment of conviction,” and citing People v. Young (2005) 34 Cal.4th 1149, 1217, but
reserving issue as “[n]ot before us”]; see also Ary II, at pp. 521–522 [Werdegar, J.,
concurring] [“[r]eason exists to believe the United States Supreme Court would not
approve the [retrospective competency] procedure,” citing Drope, supra, 420 U.S. 162,
183 and Dusky, supra, 362 U.S. at p. 403].)
       A year later, in Lightsey, our Supreme Court held a deprivation of the defendant’s
statutory right to have counsel to represent him in the competency proceeding could be
cured, in the circumstances before it, by “ordering a limited reversal and remand for the
trial court to determine whether a retrospective competency hearing is feasible and, if so,
to conduct such a hearing.” (Lightsey, supra, 54 Cal.4th at p. 706.) Lightsey
distinguished the flawed competency proceeding in that case from a situation in which a
trial court fails to conduct the competency hearing at all. (See id. at pp. 703, 707–708).
Ary II and Lightsey thus left unresolved the conflict among the Courts of Appeal.
       Fortunately we need not swing our bat on this sticky wicket because even if a
retrospective competency determination could in some circumstances be a constitutional
remedy for failure to hold a competency hearing, it is not an appropriate remedy here.
Courts have indicated that a retrospective remedy is disfavored because of the “difficulty
of retrospectively determining an accused’s competence to stand trial.” (Pate, supra, 383
U.S. at p. 387.)20 In determining whether a meaningful retrospective hearing is possible,
courts consider the availability of evidence relating to the defendant’s mental faculties at

       20
          See Drope, supra, 420 U.S. at p. 183 (“Given the inherent difficulties of such a
nunc pro tunc determination under the most favorable circumstances [citations], we
cannot conclude that such a procedure would be adequate here”); McMurtreys v. Ryan
(9th Cir. 2008) 539 F.3d 1112, 1131–1132 (passage of time, lack of medical records and
absence of doctor who assessed petitioner at time of trial prevented meaningful post hoc
assessment of competency).


                                              53
the relevant time. (See, e.g., Ary I, supra, 118 Cal.App.4th at pp. 1021–1023, 1029; see
also Lightsey, supra, 54 Cal.4th at pp. 682–690, 707.) Among the most important factors
courts consider in assessing whether a defendant is competent are the opinion and
observations of defense counsel. (See Medina v. California (1992) 505 U.S. 437, 450
[112 S.Ct. 2572] [“defense counsel will often have the best-informed view of the
defendant’s ability to participate in his defense”]; Drope, supra, 420 U.S. at p. 177, fn.13
[“expressed doubt” about defendant’s competence by defense attorney, who has “ ‘the
closest contact with the defendant,’ [citation] is unquestionably a factor which should be
considered”]; see also ABA Criminal Justice Mental Health Standards (1989) Std. 7-4.8,
Commentary, p. 211 [“[D]efense counsel may well be the single most important witness
on that dimension of incompetency”].)
       In this case, Hayes was not evaluated by psychiatric or psychological professionals
at any time after he was returned from Napa State Hospital through the time the jury
rendered its verdict. While he was evaluated shortly before sentencing, the sole
professional who actually interviewed him at that time (Kessler) had previously found
him competent to stand trial on grounds that other professionals and the trial court had
previously rejected. Further, Kessler did not address whether Hayes was competent at
the time of trial or competent to assist counsel (or himself) in defense of his case. Rather,
Kessler stated he was informed by the trial court that he need only consider, and therefore
only did consider, whether Hayes was competent to be sentenced.
       But there is an even more fundamental problem in this case. Hayes was not
represented at either the preliminary hearing or at the trial, or at any time in between,
because the trial court granted his Faretta motion shortly after he was returned from
Napa State Hospital. His initial counsel (Martin) declared a conflict and was allowed to
withdraw, his appointed conflict counsel declined to serve as advisory counsel, and the
court did not appoint other advisory counsel until near the end of the trial. And that
belatedly appointed advisory counsel was not present during the remainder of the trial.
As a result, there was no defense counsel present through the relevant proceedings who



                                             54
could potentially testify about Hayes’s competence to assist in or represent himself at
trial.
         Thus, here there is lacking both contemporaneous medical evidence of Hayes’s
mental condition at the time of trial and testimony of defense counsel who would be most
knowledgeable about his ability to assist in his own defense before and during the trial.
Moreover, it has now been three and one half years since Hayes’s trial. In analogous
circumstances, the United States Supreme Court declined to remand for a retrospective
competency determination (see Drope, supra, 420 U.S. at pp. 182–183; Pate, supra, 383
U.S. at p. 387). We also decline to do so here.
         For these reasons, we reverse the conviction and remand the case for a new trial, if
and when the court determines Hayes has the ability to assist counsel in a rational defense
and is otherwise competent to stand trial.
                                             IV.
                                        The Sentence
         The sentence imposed on Hayes is highly unusual and exceptionally harsh and was
more than double the 12 years and eight months requested by the People, who earlier in
the case were prepared to accept probation. The trial judge’s annoyance with Hayes, who
repeatedly disregarded her admonitions about the irrelevance of his arguments and the
evidence he sought to present, failed to immediately accept her evidentiary rulings and
frequently interrupted her and the witnesses, is evident from the transcript, and the judge
apparently imposed the sentence over Hayes’s yelling and screaming in the courtroom
during the sentencing proceedings. In any evesnt, we need not decide whether the
sentence imposed was an abuse of the court’s discretion because we reverse for the
reasons set forth above.
                                       DISPOSITION
         The judgment against Hayes is reversed. We remand this matter to the trial court
for further proceedings consistent with this opinion.




                                              55
                            STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.




                       56
People v. Hayes (A136366)




                            57
