Filed 4/2/13 P. v. Wolf CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B233289

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA063264)
         v.

DAVID WAYNE WOLF,

         Defendant and Appellant.




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


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


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.


                                         ________________________
          Appellant David Wayne Wolf appeals from the judgment of conviction following
a jury trial in which he was convicted of one felony count of grand theft auto (Pen. Code,
§ 487, subd. (d)(1))1 (count 1) and two felony counts of attempted carjacking
(§§ 664/215, subd. (a)) (counts 2 and 3). He was sentenced to the middle term of two
years six months on count 2, with the same sentence on count 3 and the middle term of
two years on count 1, both to run concurrently. On the date of his sentencing on
November 19, 2008, he received 713 days of custody and work credit.2
          Appellant contends the trial court violated his due process rights by not
conducting a competency hearing postverdict and prior to sentencing. We disagree and
affirm.
                                       BACKGROUND
          On July 24, 2007, prior to trial, defense counsel declared a doubt as to appellant’s
competency to assist her, and stated that she had received an inconclusive psychologist’s
report. The trial court suspended criminal proceedings and ordered another psychologist
to examine appellant pursuant to Evidence Code section 730.
          On August 14, 2007, the trial court found appellant incompetent to stand trial
based upon the two reports. The court ordered the criminal proceedings to remain
suspended and that appellant be committed to Patton State Hospital until his competence
was restored. The court also ordered that the hospital was authorized to involuntarily
administer antipsychotic medication to appellant when and as prescribed by his treating
psychiatrist.
          Patton State Hospital eventually declared appellant to be competent. On
January 25, 2008, the trial court approved the certificate of mental competence and
reinstated criminal proceedings.



1
          All further statutory references are to the Penal Code unless otherwise indicated.
2
       We granted appellant’s request for relief from default for failure to file a timely
notice of appeal. It would appear that appellant has finished serving his sentence by now.
However, because he raises constitutional challenges, we reach the merits of his appeal.

                                                2
       After the jury was selected, on March 27, 2008, defense counsel submitted an
emergency request for a conference with a psychologist regarding appellant’s
competence, but stated that she had witnesses present and was willing to proceed. The
court ordered the trial to proceed. Later that day, defense counsel informed the court that
the psychologist had evaluated appellant and found him to be competent.
       Appellant testified at trial, stating that on the date of the crimes he was hearing
voices, he believed that people could read his mind and he thought he was in a “movie.”
On April 4, 2008, the jury found appellant guilty on all three counts.3
       On the original date set for sentencing, April 21, 2008, defense counsel stated that
she did not believe appellant was able to assist in his defense, and asked to continue
sentencing. Appellant, however, asked to be sentenced that day and to represent himself.
After the trial court granted appellant’s request to represent himself and appellant
addressed the court, the court declared a doubt as to appellant’s competence, suspended
proceedings, reappointed defense counsel to represent appellant, and appointed two
psychologists to evaluate appellant. In the meantime, the court denied two more requests
by appellant for self representation.
       On September 17, 2008, the trial court noted that both appointed psychologists had
found appellant competent. The court reinstated proceedings and granted appellant’s
request to represent himself.
       On October 28, 2008, appellant appeared for sentencing. He stated that he had
been refusing medication, but that he was ready to be sentenced. Both the prosecutor and
the trial court noted that appellant did not appear to be lucid or awake. The court noted
that while two psychologists had found appellant to be competent for sentencing, the
court found that appellant was not competent to represent himself at sentencing. The
court revoked appellant’s pro per status, reappointed defense counsel, and continued the
sentencing hearing.


3
        Because the issue on appeal involves appellant’s posttrial competence, we do not
set forth the evidence presented at trial.

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       At the continued sentencing hearing on November 19, 2008, defense counsel
stated that she had discussed sentencing options with appellant, who was adamant that he
wanted to be sentenced to prison and not to a treatment program. Defense counsel stated
that she did not join in appellant’s request and that appellant “is, in fact, competent,
though he might be mentally ill.” The court then proceeded to sentencing.
                                       DISCUSSION
       Appellant contends the trial court violated his state and federal due process rights
by failing to conduct a competency hearing prior to his sentencing. We disagree.
I.     Applicable Law.
       “Trial of an incompetent defendant violates the due process clause of the
Fourteenth Amendment to the United States Constitution [citation] and article I, section
15 of the California Constitution. Those protections are implemented by statute in
California.” (People v. Hayes (1999) 21 Cal.4th 1211, 1281.) “Our state statute provides
that a person is mentally incompetent to stand trial if, as a result of mental disorder or
developmental disability, the 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.
(§ 1367.)” (People v. Welch (1999) 20 Cal.4th 701, 737; § 1367, subd. (a).) The right to
be both physically and mentally present extends through sentencing. (§ 977, subd. (b);
People v. Jones (1997) 15 Cal.4th 119, 157; People v. Rogers (2006) 39 Cal.4th 826, 847
[“The court’s duty to conduct a competency hearing may arise at any time prior to
judgment”].)
       “‘When the accused presents substantial evidence of incompetence, due process
requires that the trial court conduct a full competency hearing.’” (People v. Koontz
(2002) 27 Cal.4th 1041, 1063.) Substantial evidence is “evidence that raises a reasonable
or bona fide doubt concerning the defendant’s competence to stand trial.” (People v.
Rogers, supra, 39 Cal.4th at p. 847; People v. Frye (1998) 18 Cal.4th 894, 952.)
“Evidence of incompetence may emanate from several sources, including the defendant’s
demeanor, irrational behavior, and prior mental evaluations. [Citations.] But to be
entitled to a competency hearing, ‘a defendant must exhibit more than . . . a preexisting

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psychiatric condition that has little bearing on the question . . . whether the defendant can
assist his defense counsel.’” (People v. Rogers, supra, 39 Cal.4th at p. 847.) If the
evidence is not substantial, “[i]t is within the discretion of the trial judge whether to order
a competence hearing.” (People v. Welch, supra, 20 Cal.4th at p. 742.) “A trial court’s
decision whether or not to hold a competence hearing is entitled to deference, because the
court has the opportunity to observe the defendant during trial.” (People v. Rogers,
supra, 39 Cal.4th at p. 847.)
       “‘“When a competency hearing has already been held and 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
finding. [Citations.]”’” (People v. Taylor (2009) 47 Cal.4th 850, 864, quoting People v.
Kelly (1992) 1 Cal.4th 495, 542–543.)
II.    The Evidence Did Not Require Another Competency Hearing.
       Appellant argues that the following factors constitute substantial evidence that a
competency hearing should have been conducted prior to his sentencing: (1) Both the
trial court and the prosecutor noted that appellant did not appear to be lucid or awake at
the presentencing hearing on October 28, 2008; (2) appellant stated at the October 28,
2008 hearing, against his own interest, that he was willing to submit to the maximum
sentence, and made misstatements at the hearing; (3) the trial court had been informed at
least three times after the verdict that appellant was on suicide watch at the jail; (4) the
trial court knew that appellant was suffering from “a major mental illness” and that he
was currently refusing his medications; and (5) a psychologist had testified at trial that
appellant was a paranoid schizophrenic with bipolar disorder and did not appear to be
malingering. We find appellant’s arguments unpersuasive.
       A. October 28, 2008 Hearing
       The prosecutor’s statement at the October 28, 2008, presentence hearing that “I’m
not quite sure the defendant is awake or is lucid at the time. It looks like he’s go [sic]
ready to go to sleep,” was not a change in circumstance casting doubt on the previous

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

                                               6
self-destructive emotional approach to self-representation does not equate to substantial
evidence of incompetence to stand trial.” (People v. Halvorsen (2007) 42 Cal.4th 379,
406; see also People v. Lewis (2008) 43 Cal.4th 415, 526 [“a defendant’s preference for
the death penalty does not invariably demonstrate incompetence”]; People v. Blair,
supra, 36 Cal.4th at p. 718 [“we have rejected the notion that a defendant’s choice not to
present a defense, even at the penalty phase, amounts to substantial evidence of
incompetence”].) If anything, appellant’s willingness to receive the maximum term of
imprisonment indicated his awareness of wrongdoing: “I’m ready to accept everything
that’s coming to me.”
       B. Suicide Watch
       Appellant also asserts that being on suicide watch at the jail was a new
circumstance alerting the trial court that he was no longer competent. But on September
17, 2008, appellant expressly told the trial court that he was not suicidal: “Now, the
situation is I am in county jail, they have me on suicidal watch, but I am not suicidal. I
told them I would sue them, because they had to protect me.” Additionally, our Supreme
Court has found that evidence of a defendant’s “death wish” and planned suicide attempt
do not amount to substantial evidence of incompetence requiring a competency hearing.
(See People v. Ramos (2004) 34 Cal.4th 494, 508–511.)
       C. Mental Illness
       Appellant also points out that he was suffering from a major mental illness and
that a psychologist had testified at trial that he was a paranoid schizophrenic with bipolar
disorder and did not appear to be malingering. But “even a history of serious mental
illness does not necessarily constitute substantial evidence of incompetence that would
require a court to declare a doubt concerning a defendant’s competence and to conduct a
hearing on that issue.” (People v. Blair, supra, 36 Cal.4th at p. 714; People v. Ramos,
supra, 34 Cal.4th at pp. 508–511 [defendant’s death wish, history of psychiatric
treatment, planned suicide attempt, propensity for violence, and psychiatric testimony
that defendant was physically abused as a child and suffered from a paranoid personality



                                             7
disorder did not constitute substantial evidence of incompetence requiring court to
conduct a competency hearing].)
       Appellant asserts that certain of his own testimony at trial was “nonsensical and
disturbing.” Even assuming appellant is correct that his testimony indicated some form
of mental illness, our Supreme Court has repeatedly recognized that “more is required to
raise a doubt than mere bizarre actions [citation] or bizarre statements [citation]. . . .’”
(People v. Halvorsen, supra, 42 Cal.4th at p. 403, quoting People v. Laudermilk (1967)
67 Cal.2d 272, 285.)
       Despite his own testimony and the other factors discussed above, the record does
not show that appellant lacked an understanding of the nature of the proceedings or the
ability to assist in his defense. (People v. Koontz, supra, 27 Cal.4th at p. 1064.)
Accordingly, we are satisfied the evidence was insufficient to require a reexamination of
appellant’s competency before proceeding with sentencing.
                                       DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                            ______________________________, J.
                                                  ASHMANN-GERST


We concur:



_______________________________, P. J.
           BOREN



_______________________________, J.
           CHAVEZ

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