Filed 12/3/15 P. v. Helton CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C074393

                   Plaintiff and Respondent,                                     (Super. Ct. No. 04F11425)

         v.

RICHARD HELTON,

                   Defendant and Appellant.




         In 2004, defendant Richard Helton, who had been drinking, assaulted his live-in
girlfriend Karen Demetrio, threatened to kill her, and strangled her until she passed out.
Both defendant and Demetrio have histories of serious mental illness. In the more than
eight years of litigation prior to his conviction by jury, defendant at times represented
himself and at times was represented by various counsel, both appointed and retained.
His first trial, in 2005, ended prematurely in a mistrial due to his own misbehavior.
         The trial court twice found defendant incompetent to stand trial and committed
him to Napa State Hospital (NSH). Eventually, despite multiple doctors opining that he

                                                             1
was unlikely to regain competency to stand trial in the foreseeable future, a jury found
him competent based on his recorded telephone conversations regarding trial strategy.
        In 2013, a jury found defendant guilty of attempted murder (Pen. Code,
§§ 664/187, subd. (a))1 with a great bodily injury enhancement (§ 12022.7, subd. (e)),
related assaultive crimes, and criminal threats (§ 422). Defendant admitted four prior
convictions; three were serious felonies, brought and tried together, that qualified as one
5-year prior (§ 667, subd. (a)) and three strikes (§§ 667, subds. (b)-(i), 1170.12), and the
fourth as a one-year prior (§ 667.5, subd. (b)). The trial court sentenced defendant to the
upper term on the attempted murder conviction for an aggregate unstayed sentence of 27
years to life plus 11 years.
        On appeal, defendant challenges aspects of three different phases of the
proceedings. As to the trial on guilt, he contends there was instructional error as no
evidence supported the instruction on mutual combat (CALCRIM No. 3471). We agree
that there was error, but find it harmless for reasons we explain. Next, defendant argues
the trial court abused in its discretion (during pre-trial proceedings) in failing to hold a
(third) competency proceeding when his new counsel declared a doubt. Finally, he
contends he received ineffective assistance of counsel at the competency jury trial. We
find no merit in these contentions and shall affirm the judgment.
                                           FACTS
        The Crimes
        Defendant met Karen Demetrio at a group therapy session for alcoholics at the
Veterans Administration (VA). They first were roommates and then became physically
involved. Although defendant was on parole with a condition that he not drink alcohol,
he still drank it. When defendant drank a lot of alcohol, he became verbally abusive and




1   Further undesignated statutory references are to the Penal Code.

                                               2
threatened to kill Demetrio. After one such incident in July 2004, she called the police
and defendant was sent to prison for five months on a parole violation.
       On December 28, 2004, defendant was drinking heavily. He was very angry and
accused Demetrio of sleeping with someone else and threatened to kill her. He grabbed
her hair and started to strangle her. She bit his finger and grabbed a glass ashtray which
she used to hit him on the head twice. She tried to use a phone but he pushed it out of her
hand. In the struggle, she pushed back on the chair she was in and it tipped over. She
crawled to get the ashtray again. Defendant grabbed the ashtray and hit her in the head
very hard. He pulled her towards him by her legs, then grabbed her by the neck and
strangled her until she passed out.
       When she woke up, defendant was sitting on the floor looking at her. He told her
to clean up the blood. She tried to but she was very weak. She asked defendant for
permission to lie down and soon fell asleep. When she awoke the next morning,
defendant was asleep in the bed. Both were bleeding from their heads.
       Demetrio called a friend and left, first going to the emergency room at the VA
hospital. As she waited for the doctor, she heard a “code blue” on the intercom and left,
concerned defendant would get away during the wait. She went to her friend’s, where
she called defendant’s parole officer, who told her to call the police. After calling the
police, Demetrio took a shower and lay down. When the police officer arrived, Demetrio
appeared nervous and shaken. The whites of her eyes were red. She had bruising around
her eyes, her neck was swollen and bruised, and she had a laceration on the top of her
head. An officer took photographs of her injuries.
       Demetrio gave the officer the keys to the apartment. The officer went to the
apartment and knocked twice with no answer. He entered and saw defendant on the
couch, smelling of alcohol and with glassy eyes. Defendant had a laceration on his head
and a scratch or cut on his finger. There was blood on his sweatpants and on a pair of
jeans in the bedroom. There was blood on a glass ashtray.

                                              3
       Demetrio returned to the emergency room. She reported pain in her neck. Blood
vessels in the sclera (whites) of her eyes had broken. She was bruised and had a
laceration on the back of her head. The People called an expert in strangulation who
defined strangulation as external compression of the neck until consciousness is altered.
Based on his review of Demetrio’s medical records, he found evidence of strangulation.
He testified it would be “exceedingly difficult” to self-inflict the injuries reflected by the
medical records.
       Defendant’s Other Crimes
       The parties stipulated that defendant had been convicted in 1978 of burglary,
sodomy, and rape while armed with a weapon. He served his entire sentence and was
released in 1993.
       In 2000, defendant was staying in a trailer on the property of Beth Finder.2 In
August, she called the police, reporting threats by defendant. Officers arrived, found a
rifle in defendant’s trailer and arrested him for being a felon in possession of a firearm.
In a signed statement introduced at trial, Beth declared that defendant had been explosive
for a week and his anger was escalating. He was out of control and she was fearful,
especially since he had a gun. She believed defendant needed “mental help desperately.”
On the stand, Beth denied the incident and claimed she was told what to write in the
statement; it was “dictated” to her. She asserted she had called the police only to turn in
some “decrepit” guns. Medical records showed that in May 2000, Beth had sought
medical treatment for pain, claiming she was hurt in an altercation with a roommate. At
trial, when confronted with these records, she stated, “That’s not possible.”




2 The witness stated her name as Beth Finder Manning, but the court and parties referred
to her as Miss Finder. Previous defense counsel, who was the witness’s counsel, referred
to her as Ms. Harris. For purposes of clarity and convenience, we adopt the parties’
practice and refer to this person as Beth.

                                               4
       On July 3, 2004, police responded to a domestic violence call at defendant and
Demetrio’s apartment. Defendant had been on a three-day alcohol binge. He smelled of
alcohol and had an unsteady gait and glassy, bloodshot eyes. He alternated between
being very polite to verbally abusive and hostile. He was arrested for violating his parole
by drinking alcohol.
       The Defense
       Defendant claimed self-defense. He contended that Demetrio--who had a history
of violence and dishonesty and 20 years of psychiatric issues--had attacked defendant
with the ashtray and he had responded with a “control hold” to immobilize her. When he
let go, she hit him in the back of the head with the ashtray.
       In statements to the court during his 2005 trial (while representing himself),
defendant admitted he “put [his] hands around [Demetrio’s] neck to cutoff (sic) her
oxygen to stop her from hitting [him] with that glass ashtray.” He asserted it was self-
defense and Demetrio was the initiator. He claimed that only Demetrio touched the
ashtray. Her wounds were self-inflicted and she washed the ashtray. He never hit her.
He claimed Demetrio had brought in a replacement ashtray.
       In the 2013 trial, the defense strategy was to discredit Demetrio and attack her
credibility in large part due to her mental health issues. She had been raped while in the
Air Force and suffered from posttraumatic stress disorder. She had also been diagnosed
with bipolar II disorder, alcohol dependency, marijuana dependency, and borderline
personality disorder. She did not always take her medication, missed appointments, and
had a history of harming herself. She had reported hearing voices. In February 2004, she
was suicidal, scared, and paranoid. She had delusional thoughts, grandiosity, and
extremely negative thinking. According to her treating psychiatrist, Demetrio sought
help and was working hard to correct her problems and become healthy. By the time of
the 2013 trial, she had been employed by the state for eight years. The defense presented



                                              5
several witnesses, including Demetrio’s ex-husband, who testified about her previous acts
of violence and her dishonesty. Defendant did not testify.
                                      DISCUSSION
                                             I
                        Instructional Error: CALCRIM No. 3471
       Defendant contends the trial court prejudicially erred in instructing the jury with
CALCRIM No. 3471, which described determining self-defense if defendant was the
initial aggressor or there was mutual combat. He claims there was no evidence of mutual
combat, as defined in People v. Ross (2007) 155 Cal.App.4th 1033. He argues the error
was prejudicial because it allowed the jury to deny his claim of self-defense because he
did not stop fighting and communicate his intent to do so to Demetrio, as required by the
mutual combat portion of the instruction.
       A. The Instruction and the Definition of “Mutual Combat”
       Without objection from either party, the trial court (Goodman, J.) instructed the
jury with the full language of the 2013 version of CALCRIM No. 3471 as follows: “A
person who engages in mutual combat or who starts a fight has a right to self-defense
only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] 2. He indicated,
by word or by conduct, to his opponent in a way that a reasonable person would
understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND
[¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these
requirements, he then had a right to self-defense if the opponent continued to fight. [¶]
However, if the defendant used only non-deadly force, and the opponent responded with
such sudden and deadly force that the defendant could not withdraw from the fight, then
the defendant had the right to defend himself with deadly force and was not required to
try to stop fighting, communicate the desire to stop the opponent, or give the opponent a
chance to stop fighting. [¶] A fight is mutual combat when it began or continued by



                                             6
mutual consent or agreement. That agreement may be expressly stated or implied and
must occur before the claim to self-defense arose.”3
       In Ross, the trial court gave an earlier version of this instruction that did not define
“mutual combat.” (People v. Ross, supra, 155 Cal.App.4th at p. 1042 & fn. 9.) When the
jury asked for clarification and the legal meaning of “mutual combat,” the trial court
responded there was no legal definition and to use the common, everyday meaning of
those words. (Id. at pp. 1042-1043.) The appellate court found this response was error.
(Id. at p. 1047.) In the context of self-defense, “ ‘mutual combat’ means not merely a
reciprocal exchange of blows but one pursuant to mutual intention, consent, or
agreement preceding the initiation of hostilities.” (Id. at p. 1045, original italics.) To
give an instruction on mutual combat, “there must be evidence from which the jury could
reasonably find that both combatants actually consented or intended to fight before the
claimed occasion for self-defense arose.” (Id. at p. 1047, original italics.)
       Unlike the instruction given in Ross, the 2013 version of CALCRIM No. 3471
includes this definition of mutual combat. “A fight is mutual combat when it began or
continued by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claim to self-defense arose.”
       B. Analysis
       We agree with defendant that here there was no evidence of a mutual consent or
intent to fight between defendant and Demetrio. Thus there was no evidence of mutual
combat. The People assume the same for purposes of argument. From this evidence,




3  Initially, we note that that CALCRIM No. 3471 is not intended to be given in full.
Rather, the pattern instruction contains alternative language and bracketed portions. Just
as the instructing court selects the proper pronoun based on defendant’s gender, the court
should select only those portions of the pattern instruction--relating to one who starts the
fight, mutual combat, or the initial use of non-deadly force--that apply to the case and are
supported by the evidence.

                                              7
either defendant or Demetrio started the fight and the other responded in self-defense.
The trial court should not have instructed the jury on mutual combat.
       “It is error to give an instruction which, while correctly stating a principle of law,
has no application to the facts of the case. [Citation.]” (People v. Guiton (1993) 4
Cal.4th 1116, 1129.) Such error is not of federal constitutional dimension, but an error of
state law subject to the traditional test of People v. Watson (1956) 46 Cal.2d 818, at page
836. (Guiton, at p. 1129.) In determining whether the error was prejudicial, we examine
the entire record, “including the facts and the instructions, the arguments of counsel, any
communications from the jury during deliberations, and the entire verdict. [Citation.]
Furthermore, instruction on an unsupported theory is prejudicial only if that theory
became the sole basis of the verdict of guilt; if the jury based its verdict on the valid
ground, or on both the valid and the invalid ground, there would be no prejudice, for
there would be a valid basis for the verdict. . . . The appellate court should affirm the
judgment unless a review of the entire record affirmatively demonstrates a reasonable
probability that the jury in fact found the defendant guilty solely on the unsupported
theory.” (Id. at p. 1130.)
       Here there is no reasonable probability that the jury based its verdict on mutual
combat precluding self-defense; accordingly, the error was harmless.
       Other than the instruction, there was no mention of mutual combat at trial. Unlike
in Ross, the jury did not ask any question about mutual combat and the instruction
provided the legal definition. The jury was presented with two starkly different views of
the evidence and was asked to decide who started the fight. The People’s argument was
that self defense was not available to defendant because he started the fight: “A person
doesn’t have the right to self-defense when you provoke the fight. [¶] That’s what he did
in this case. He was the provoker. He was the one who started this. He disabled the
phone. He came at her.” Jurors are well-equipped to analyze evidence and reach a



                                               8
rational conclusion. Their own intelligence and experience prevents them from relying
on a factually inadequate theory. (People v. Guiton, supra, 4 Cal.4th at p. 1131.)
       Defendant argues Guiton does not apply because this is not a case of a factually
inadequate theory being presented to the jury, but rather foreclosure of defendant’s only
defense--self-defense. We disagree. The court instructed on defendant’s right to defend
himself (CALCRIM No. 3470); specifically, the court instructed the jury that defendant
would act in lawful self-defense if he “reasonably believed that he was in imminent
danger of suffering bodily injury or was in imminent danger of being touched
unlawfully”; he “reasonably believed that the immediate use of force was necessary to
defend against that danger”; and he “used no more force than was reasonably necessary
to defend against that danger.” The court also instructed the jury, “Some of these
instructions may not apply, depending on your findings about the facts of the case. Do
not assume just because I give a particular instruction that I am suggesting anything about
the facts. After you have decided what the facts are, follow the instructions that do apply
to the facts as you find them.” (CALCRIM No. 200.)
       We presume the jury was able to understand and correlate all of the court’s
instructions and follow them. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
Since there was no evidence of mutual combat, we presume the jury followed the
instruction to disregard that portion of the instruction. Nothing in the instructions,
however, prevented the jury from considering evidence of self-defense, on which the
court also instructed. The instructions given did not eliminate defendant’s claim of self-
defense. Rather, the jury rejected the defense based on the evidence.
                                              II
                              Denial of Competency Hearing
       Defendant contends the trial court abused its discretion in denying him yet another
competency hearing in March 2013 (before trial). Defendant contends the trial court
erred by conjoining the disjunctive standard for such a hearing and requiring that there be

                                              9
both a substantial change in circumstances and a serious doubt as to the previous finding
of competence, when only one is required. Defendant emphasizes his long-standing
mental health issues and the previous findings that he was incompetent to stand trial.
       A. Background
              1. Defendant’s First (2005) Criminal Trial
       After the preliminary hearing, the trial court relieved defendant’s retained attorney
and granted defendant pro per status. During the extensive in limine motions and
Evidence Code section 402 hearings, defendant was often disruptive. During jury
selection, defendant disclosed personal information about a juror in violation of a court
order. The trial court eventually found defendant “out of control” for shouting and
making disparaging comments. Defendant declared a “state of war” against the trial
court and refused to recognize the court’s authority. The court revoked defendant’s pro
per status and declared a mistrial.
              2. Competency Proceedings
       In January 2007, defendant’s counsel declared a doubt as to defendant’s
competence to stand trial based on his inability to cooperate with counsel. (§ 1368.) The
People claimed that defendant was only unwilling to cooperate, not unable. Defendant
was evaluated by a psychiatrist and three psychologists. The psychiatrist and two
psychologists found defendant was able to understand the proceedings but unable to
rationally assist counsel due to his mental illness, specifically his delusions. The third
psychologist found defendant’s “difficulty or refusal to work with his attorney is more a
matter of manipulation oppositional traits, as opposed to emotional interference or
cognitive limitations.”
       The trial court (Smith, J.) found defendant incompetent to stand trial and
committed him to NSH.
       In September 2008, NSH certified that defendant was restored to mental
competency.

                                             10
        Two years later, in 2010, defendant’s appointed attorney (Kenneth Rosenfeld)
declared a doubt as to defendant’s competence following defendant’s unsuccessful
Marsden motion.4 The People took the position that defendant was malingering. The
trial court (Winn, J.) had observed a change in defendant and questioned his ability to
work with his attorney. The court appointed two experts to evaluate defendant. Both the
psychiatrist and the psychologist found defendant incompetent to stand trial. Defendant
was able to understand the criminal proceedings but unable to assist his attorney in a
rational manner. Defendant had a delusional belief that the defense attorney and the
district attorney were in collusion against him.
        The parties submitted the matter on the doctors’ reports. The court found
defendant incompetent to stand trial and committed him to NSH. In January 2012, NSH
reported to the court that defendant was unlikely to regain trial competence in the
foreseeable future. His diagnoses included a delusional disorder. The treatment team
recommended initiation of conservatorship proceedings.
              3. Defendant’s Competency Trial
        The People requested a competency trial. Defendant, now represented by retained
counsel Ellen Dove, requested a jury trial.
        The defense called four expert witnesses: a psychiatrist who had previously
evaluated defendant, a staff psychiatrist and a staff psychologist from NSH, and a
psychiatrist who had been recently retained to evaluate defendant. They all opined that
defendant was incompetent to stand trial due to his delusional disorder. Defendant
believed all departments of the legal system were in collusion against him and he refused
to work with an attorney who was not willing to accept his version of events. This
response was not voluntary.




4   People v. Marsden (1970) 2 Cal.3d 118.

                                              11
        The defense also called Robert Cassinelli. Cassinelli is a lecturer in humanities at
California State University Sacramento. He spent 20 years in the Air Force, much of it in
intelligence. He works as a trial consultant and Dove had previously hired him as a
“human lie detector.” Cassinelli worked for defendant and held a durable power of
attorney for him; Cassinelli testified that defendant was his client, not his friend. On
occasion, Cassinelli transmitted information from Dove to defendant. The People
successfully objected to Cassinelli’s opinions about defendant’s trial competency. The
People questioned Cassinelli about telephone calls with defendant in which defendant
discussed the competency trial. The announcement that preceded acceptance of these
calls said: “These conversations will be recorded and monitored.”
        The People’s case for defendant’s trial competency was based on excerpts of
recorded telephone calls defendant made while in jail before the competency trial. In the
calls, defendant discusses trial strategy with both Cassinelli and defendant’s girlfriend
Beth.
        There are excerpts of two calls between defendant and Cassinelli. In the first,
Cassinelli tells defendant that Dove was “spot on” in her recommendations about
defendant’s demeanor during trial. He told defendant “we’re going to win this thing my
friend” and “we’re going to get you out.” They discussed the prosecutor and defendant
did not understand why he did not “just let me go out the back door nice and private
like.” Cassinelli said the prosecutor was a “jerk.” Defendant just wanted to go home and
questioned how committed his attorneys were. Cassinelli assured defendant they were
committed. In the second call defendant indicated that if he was found competent, he
hoped “the team” would be “resilient.” He indicated he was making notes, drawing
diagrams, and making lists of witnesses.
        There are excerpts of three calls to Beth. In the first, defendant does almost all the
talking. He tells Beth the district attorney is challenging NSH’s findings on competence
and the matter is set for trial, and that Judge Winn did not recuse himself and that issue is

                                              12
being preserved for appeal.5 He explains a finding of competence puts them back to
“square one” and the delay will cause problems with witnesses. Defendant discusses
Demetrio and her testimony and how he thought the district attorney would not challenge
the finding of his continued incompetency, but would “bow out gracefully and just accept
[NHS’s] finding and I go on conservatorship.” He discusses the hiring and payment of
the psychiatrist to evaluate him. In both the second and third calls defendant explains to
Beth the process for conservatorship and why it is better to have Cassinelli, who has the
power of attorney, as his conservator rather than her. Defendant also discusses the
possibility of a plea deal.
       The jury found defendant competent to stand trial. The court (White, J.) indicated
it was impressed with defendant’s level of competency and denied defendant’s motion for
a judgment notwithstanding the verdict, stating: “I think the jury got it right.”
              4. Subsequent Request for Competency Hearing
       About a year later in March 2013, defendant’s public defender requested an in
camera hearing on defendant’s competency. Counsel stated defendant was incompetent
to stand trial as he was unable to assist counsel rationally and asked the court to appoint a
psychiatrist to evaluate defendant. Counsel claimed there was a substantial change in
circumstances; over the past six months defendant had become increasingly irrational,
delusional, and paranoid. Counsel’s supervisor concurred that defendant’s mental state
appeared to be decompensating and deteriorating. Dove, who was now representing
defendant on civil matters, voiced similar concerns.
       Counsel stated that defendant had a delusion of persecution; defendant believed
everyone was working with the district attorney to secure his conviction and withhold
exculpatory evidence. Defendant believed the entire system was corrupt and everyone



5 Judge Winn denied a defense motion to disqualify him pursuant to Code of Civil
Procedure section 170.4, subdivision (b) as untimely and without legal basis.

                                             13
was conspiring against him. He was fixated on the prosecutorial misconduct conspiracy
and could not stay focused. Counsel reported that defendant was becoming
uncontrollably angry.
       The People, not present at the in camera hearing, told the court they were unaware
of any substantial change in circumstances or new evidence. The trial date had been set
and it was the People’s position that this was defendant’s “last ditch effort” to avoid trial.
       The trial court (Winn, J.) indicated that after a defendant had been found
incompetent and then restored to competency, the standard to suspend criminal
proceedings was “a substantial change in circumstances casting serious doubt on the
previous finding that defendant was competent. I’m not there yet.” The court recalled its
previous concerns about defendant’s competency, but noted it had not observed anything
this time that raised serious questions about defendant’s ability to cooperate with counsel.
It denied the request to suspend proceedings.
       B. The Law
       A defendant who, as a result of mental disorder or developmental disability, is
“unable to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner,” is incompetent to stand trial. (§ 1367.) “To
be competent to stand trial, defendant must have ‘ “ ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding’ and ‘a rational as
well as factual understanding of the proceedings against him.’ ” ’ [Citation.]” (People v.
Ramos (2004) 34 Cal.4th 494, 507 (Ramos).) When a defendant presents substantial
evidence of incompetence, due process requires that the trial court conduct a full
competency hearing. (People v. Stankewitz (1982) 32 Cal.3d 80, 92.)
       “When a competency hearing has already been held and the defendant has been
found competent to stand trial, however, a trial court need not suspend proceedings to
conduct a second competency hearing unless it ‘is presented with a substantial change of
circumstances or with new evidence’ casting a serious doubt on the validity of that

                                              14
finding. [Citations.]” (People v. Jones (1991) 53 Cal.3d 1115, 1153, italics added.) In
such circumstance, “the trial court may appropriately take its personal observations into
account in determining whether there has been some significant change in the defendant’s
mental state.” (Ibid.)
       “The court’s decision whether to grant a competency hearing is reviewed under an
abuse of discretion standard.” (People v. Ramos, supra, 34 Cal.4th at p. 507.) “ ‘ “An
appellate court is in no position to appraise a defendant’s conduct in the trial court as
indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or
sheer temper.” ’ [Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 33.)
       C. Analysis
       Defendant contends the trial court abused its discretion because it misstated the
applicable standard for holding a subsequent competency hearing, requiring defendant to
satisfy both prongs of the disjunctive test. “Generally, the reason a trial court gives for its
ruling is irrelevant on appeal because ‘we review the trial court’s actual ruling, not its
reasons,’ and ‘[a] judgment or order correct in theory will be affirmed, even where the
trial court’s given reasoning is erroneous.’ [Citation.]” (Kennedy v. Superior Court
(2006) 145 Cal.App.4th 359, 368.) Thus, we consider whether defendant presented
evidence of either substantial changed circumstances or new evidence that cast a serious
doubt on the validity of the previous finding of competence.
       As set forth ante, this defendant had a considerable history of competency issues.
Most relevant here, the court that heard the 2013 request for competency hearing had
previously (2010) observed a change in defendant and questioned his ability to work with
his attorney. Following evaluations by two appointed doctors, the court found defendant
incompetent to stand trial and committed him to NSH. Subsequently, a jury found
defendant competent, based on his telephone conversations involving trial strategy that
showed defendant both understood the proceedings and was able to assist counsel in a
rational manner.

                                              15
       This time, the same court (Winn, J.) had not observed a change in defendant. The
court’s observation is an appropriate factor in determining whether there has been some
significant change in the defendant’s mental state. (People v. Jones, supra, 53 Cal.3d at
p. 1153.) (New) counsel’s reasons for declaring a doubt focused on defendant’s
delusional belief that everyone was colluding against him. At the competency jury trial,
this same delusional belief had been offered as the basis for defendant’s alleged
incompetency by prior counsel. The manifestation of earlier problems, such as delusional
beliefs, is not a substantial changed circumstance. (People v. Dunkle (2005) 36 Cal.4th
861, 904-905, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22 (Doolin); People v. Lawley (2002) 27 Cal.4th 102, 136-138.) Counsel
claimed defendant was deteriorating and becoming more irrational, but defendant had a
history of increasingly irrational and uncooperative behavior as the trial date grew closer.
       Defendant claims he did not seek a finding of incompetence and wanted to
proceed to trial to prove his innocence. Although defendant consistently stated this
position to his attorneys and the various doctors who evaluated him, the recorded calls
revealed that he sought something else entirely. In the calls, defendant made clear his
wish to “go out the back door nice and private like” and get a conservatorship with
Cassinelli as his conservator. He expressed his annoyance with the People’s position.
“[T]his is ridiculous. I mean I thought they would want to bow out gracefully and just
accept [NSH’s] finding and I go on conservatorship.”
       Defendant contends there was new evidence of his trial incompetence as no
defense attorney had testified at the competency jury trial. Both his current public
defender and his previous counsel (Dove) declared a doubt as to his competence. While
defendant offered new witnesses on the issue of his competence, he did not indicate that
such witnesses would offer new evidence. Rather they would discuss the same evidence
of irrational delusions and uncooperative behavior that was presented at the competency
jury trial and refuted by defendant’s own words in recorded telephone calls.

                                             16
       The trial court did not abuse its discretion in denying another competency hearing.
                                             III
                Ineffective Assistance of Counsel at Competency Hearing
       Defendant contends he was denied effective assistance or conflict-free assistance
of counsel by Dove at the competency hearing. He points to several areas where he
asserts her representation was deficient or hampered by a conflict of interest. “A
defendant claiming ineffective assistance of counsel under the federal or state
Constitutions must show both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable probability of a
different outcome. [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 664.) As to
each claim, defendant has failed to establish either deficient performance or prejudice.
       A. Background
       Dove’s involvement in this case and her representation of defendant was unusual
so we set it out at some length to give context to the claim of ineffective assistance of
counsel.
       In 2010, when defendant’s appointed attorney Rosenfeld declared a doubt as to
defendant’s competency, attorney Dove wanted to represent defendant at the section 1368
hearing. The record is unclear as to precisely what Dove’s interest in the case was at this
point. She told the court she would second chair Rosenfeld, but Rosenfeld refused that
arrangement: “Ms. Dove’s reputation would preclude that.” The People asserted that
defendant should have the panel attorney (Rosenfeld) or retained counsel (Dove), but
there was no middle ground. Dove represented that she was a civil law attorney and
could handle the section 1368 hearing, but she was not prepared to take the entire case.
The court ruled Rosenfeld should handle the matter.
       Dove stated defendant could ask her to represent him and relieve his appointed
counsel. Defendant said that was what he wanted to do. The People wanted a
representation from Dove that she would handle the entire case with no delays. Dove

                                             17
made that representation, but the People also wanted her to associate competent criminal
law counsel as she had stated she was not competent to handle the criminal trial. The
court ruled Rosenfeld would remain as sole counsel, prompting an outburst from
defendant, and a motion to disqualify by Dove (see footnote 4, ante). As we previously
detailed, the court found defendant incompetent to stand trial.
       In 2012, at the time of the jury trial on competency, Rosenfeld was relieved and
defendant retained Gloria Martinez-Senftner as counsel, who then associated Dove as
counsel. Dove represented defendant at the competency trial. Dove told the court that
even though she was retained, “I’m substantially pro bono here and I don’t have a
budget.” She said she thought it was unfair that because defendant no longer had a panel
attorney, he was now expected to pay for everything when his ability to pay had not
increased. She had “no wish to subsidize the case out of my pocket.” The court told her
to contact the panel about funding assistance.
       Before the witnesses were called, the court and the parties discussed the admission
of the recorded telephone calls that defendant made from jail. Dove objected to the
admission of the calls. As to those made to Beth, Dove objected because Beth was her
client and she would have to cross-examine her own client. The court pointed out that
Dove had listed Beth as a potential witness. Dove believed the calls were hearsay. As to
the calls to Cassinelli, Dove raised the attorney-client privilege because Cassinelli
conveyed messages from Dove to defendant. Dove noted that although she had been
provided with the recordings the previous week, she had not been able to listen to them
yet because of computer problems. She later noted that Cassinelli was unwilling to take
the time to listen to the recordings.
       At the beginning of Cassinelli’s testimony, there was a sidebar conference. The
People later put on the record that there was a waiver of any attorney-client privilege
before Dove proceeded to elicit substantive testimony from Cassinelli.



                                             18
       After defendant’s witnesses had testified, the issue of the recorded calls arose
again. Dove represented that she had not listened to the calls as she was expecting to call
Beth to explain them, and continued to object that the calls to Beth were hearsay. The
court ruled defendant’s calls to Beth fell under the party opponent exception to the
hearsay rule and Beth’s statements were offered only to provide context. Dove stated she
was electing not to call Beth as a witness.
       After the verdict of competency, Dove moved orally for a judgment
notwithstanding the verdict. Dove complained the trial “went too quickly” and she was
unable to put the recorded calls “into context.” The trial court interrupted Dove’s
rambling and required a written motion. In the written motion, Dove explained at length
her problems in dealing with defendant, arguing he was incompetent to stand trial. She
explained she considered serving a subpoena on Rosenfeld to testify, but decided not to
because calling Rosenfeld to testify would have alienated defendant.
       The court denied the motion for judgment notwithstanding the verdict.
       As the case proceeded to trial, the trial court was faced with Dove’s
“uncontroverted” representation that she was “not qualified to represent [defendant] in a
three-strikes criminal case.” The Office of the Public Defender would not accept
appointment if there was to be joint representation. The court appointed that office to
represent defendant in the criminal trial
       B. Permitting Telephone Calls with Cassinelli and Beth
       Defendant contends he was denied effective assistance of counsel because Dove
permitted both Cassinelli and Beth to transmit privileged information to him over
recorded telephone calls that were played at the competency trial. Citing the various
portions of the calls where they discussed his competency trial, defendant argues
Cassinelli “unreasonably permitted waiver of the attorney-client privilege” and Dove was
responsible because Cassinelli was her jury “consultant/team member/transmitter.” He
contends Dove was responsible for the calls with Beth because Beth was Dove’s client.

                                              19
       “The attorney-client privilege, set forth at Evidence Code section 954, confers a
privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a
confidential communication between client and lawyer. . . .’ The privilege ‘has been a
hallmark of Anglo-American jurisprudence for almost 400 years.’ [Citation.] Its
fundamental purpose ‘is to safeguard the confidential relationship between clients and
their attorneys so as to promote full and open discussion of the facts and tactics
surrounding individual legal matters. [Citation.]’ ” (Costco Wholesale Corp. v. Superior
Court (2009) 47 Cal.4th 725, 732.) “Communication by a client retains its confidential
nature, though made to an agent of the attorney, if the disclosure to that agent is
reasonably necessary for the transmission of the information to the attorney.” (National
Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 483.)
       Dove had “very carefully informed” both defendant and Cassinelli that their
conversations might not be covered by the attorney-client privilege. At the beginning of
each call, a recording disclosed the call was both recorded and monitored. Defendant
chose to speak with Cassinelli anyway. While speaking to Beth, defendant indicated his
awareness that the calls were monitored: “I’m not going to say why right now ‘cause of
these phones.” Although both Cassinelli and defendant knew about the recording and
monitoring, there was no evidence that Dove knew of their phone calls in advance; in the
excerpts played to the jury Cassinelli is not transmitting messages from Dove to
defendant. There was evidence that Dove had hired Cassinelli in the past, that Cassinelli
considered himself “part of that team,” and that he occasionally transmitted messages
from Dove to defendant. There was no evidence, however, that Dove had hired
Cassinelli in connection with defendant’s case or that he was Dove’s agent. There was
evidence that defendant had hired Cassinelli, but only to research defendant’s background
and identity, not to act as his agent with respect to his attorney. The record shows
Cassinelli acted independently and not under Dove’s control. He had called the court
directly about getting a restraining order or something similar (the court referred the call

                                             20
to legal staff). Dove reported that Cassinelli was “unwilling” to listen to the two hours of
recorded calls for her. Defendant has failed to show that Dove had any involvement or
knowledge of the calls between defendant and Cassinelli or that Cassinelli was the agent
of Dove, so he failed to show that Dove was deficient in “permitting” the calls to take
place.
         Nor has defendant shown that Dove was deficient in her performance because
defendant spoke with Beth about his case. We presume counsel acted within the wide
range of professional competence (People v. Jones (2003) 29 Cal.4th 1229, 1254), and
defendant has provided no evidence to rebut that presumption on this issue. Again, the
record does not show that Dove was aware of these calls. Nor is there evidence as to
what, if anything, she advised Beth and defendant about their conversations.
         C. Failure to Review and Investigate Tapes
         Defendant contends he received ineffective assistance of counsel because Dove
failed to listen to and properly investigate the recorded calls. Dove stated more than once
that she had not listened to the tapes and later complained that she did not have time to
put the excerpts in context. Although the People respond that the record does not
establish that Dove never listened to the tapes, we need not resolve this dispute because
regardless of whether Dove’s performance in this regard was deficient, defendant has
failed to show prejudice.
         “[A] court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
. . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.” (Strickland
v. Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674, 699].) “It is not sufficient to
show the alleged errors may have had some conceivable effect on the trial’s outcome; the
defendant must demonstrate a ‘reasonable probability’ that absent the errors the result



                                              21
would have been different. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000,
1008.)
         Defendant claims the omitted portions of the calls revealed his “illogical,
convoluted, delusional or paranoid expressions” and this evidence would have supported
his lack of competence. But there was already ample evidence of defendant’s delusions
and irrational behavior from the four doctors who testified at the competency trial.
Defendant does not how this additional evidence would have been significantly different.
Despite the expert testimony, the jury was persuaded by the excerpts of recordings in
which defendant’s thorough understanding of the proceedings and ability to rationally
assist his attorney (by making notes, diagrams, and lists) was manifest. Defendant fails
to show a reasonable probability that additional evidence of some delusional or paranoid
statements to Cassinelli or Beth contained in the recordings would have effectively
countered this compelling evidence of his competency.
         D. Conflicts of Interest
         “A criminal defendant is guaranteed the right to the assistance of counsel by the
Sixth Amendment to the United States Constitution and article I, section 15 of the
California Constitution. This constitutional right includes the correlative right to
representation free from any conflict of interest that undermines counsel’s loyalty to his
or her client.” (Doolin, supra, 45 Cal.4th at p. 417.) “For both state and federal
purposes, a claim of conflicted representation is one variety of claim that counsel
provided ineffective assistance. Hence, to obtain reversal of a criminal verdict, the
defendant must demonstrate that (1) counsel labored under an actual conflict of interest
that adversely affected counsel’s performance, and (2) absent counsel’s deficiencies
arising from the conflict, it is reasonably probable the result of the proceeding would
have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009-1010 (Mai).) A
defendant is required to make an “outcome-determinative” showing of prejudice to obtain
relief. (Doolin, at p. 420.)

                                              22
       Defendant contends Dove labored under several conflicts of interest. First, he
contends her financial interest in not “subsidizing” defendant’s case financially caused
her not to spend sufficient resources to be able to listen to the tapes. She claimed it was a
problem with her computer that prevented her listening to them and she could not afford
the expense of a duplicate copy of jail records. He also contends Dove had conflicting
loyalties to him and Beth, as both were her clients. He asserts Dove acted solely to
protect Beth, at his expense, when she failed to call Beth as a witness to explain the calls.
Finally, he contends Dove’s acrimonious relationship with Rosenfeld prevented her from
calling him as a witness to his incompetency to stand trial. Rosenfeld had previously
disparaged Dove’s reputation and at the competency trial Dove expressed concern about
Rosenfeld’s presence in the courtroom (on another case), saying she did not subpoena
him “because I absolutely cannot trust one word he says.”
       Defendant had failed to establish ineffective assistance of counsel based on an
actual conflict of interest. He has failed to establish that Dove’s financial interests were
the reason Dove did not listen to the tapes (assuming she did not). Even if defendant
could establish an actual conflict of interest as to finances, Beth, or Rosenfeld, he has
failed to show “that a different strategy would likely have been adopted by competent,
unconflicted counsel.” (Mai, supra, 57 Cal.4th at p. 1014.) He fails to show that a fuller
preparation and investigation of the tapes, calling Beth to explain their contents, or
calling Rosenfeld to testify about defendant’s incompetency would have resulted in a
different result at the competency trial. After all, four experts opined that defendant was
incompetent to stand trial. Defendant does not explain what evidence Dove could have
produced absent the alleged conflicts of interest or how it would have challenged the
strong evidence of his competency that countered and outweighed four expert opinions.
       Defendant requests that if we determine that the record is not sufficiently
developed to permit adjudication of his ineffective assistance of counsel claims, we
remand for an evidentiary hearing. Defendant cites Williams v. Taylor (2000) 529 U.S.

                                             23
420 [146 L.Ed.2d 435], in which the high court considered the diligence required before a
criminal defendant could receive an evidentiary hearing on a federal habeas claim.
“Diligence will require in the usual case that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the manner prescribed by state law.” (Id. at p. 437
[146 L.Ed.2d at p. 452], italics added.) Where a claim of ineffective assistance of
counsel cannot be resolved on the appellate record, the proper procedure in California is a
habeas corpus proceeding. (Mai, supra, 57 Cal.4th at p. 1009; People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267 [“A claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.”].) Accordingly, we deny
defendant’s request for remand for an evidentiary hearing.
                                     DISPOSITION
       The judgment is affirmed.



                                                       /s/
                                                 Duarte, J.



We concur:



     /s/
Nicholson, Acting P. J.



     /s/
Hoch, J.




                                            24
