Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed with directions and remanded. Petition for writ of habeas corpus, Super. Ct. No. 03CF1100.
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Lilia Garcia, Rhonda Cartwright-Ladendorf and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Terry Lance Wolfe of second degree murder. He argues on appeal that the court erred by failing to instruct on imperfect self-defense, failing to initiate proceedings to review his competency to stand trial, and imposing a restitution fine in excess of the statutory minimum. In a consolidated petition for writ of habeas corpus, he complains the trial court violated his due process right to a fair trial because his trial competence depended on taking the medication Paxil, which authorities withheld during trial. For the reasons expressed below, we affirm the judgment and deny the petition.
I
Factual And Procedural Background
In March 2003, defendant, after being released from prison, began living with Chuck Henry, a former prisoner who worked for a Christian group that ministered to inmates. On Sunday morning, March 23, defendant called a friend, Manuel Rovira, and said he needed money to move out of Henry’s residence. They agreed to meet for breakfast in Huntington Beach. Defendant had previously complained to Rovira that Henry was controlling and dominating. After breakfast, Rovira withdrew money from his bank and gave it to defendant. Defendant mentioned he had a fight with Henry and thought he might have hurt him. Rovira recalls defendant may have used a Spanish word for “killing.” Defendant asked Rovira to drop him off near Angel Stadium, explaining it was better if Rovira did not know where he was going. Rovira did not notice any injuries on defendant.
Worried that defendant may have harmed Henry, Rovira telephoned the police. When officers arrived at Henry’s residence, they found Philen Bolden standing outside the home. He explained he was worried because Henry had not shown up for church services the previous day. The officers forced entry into Henry’s trailer and found his supine body draped with a washcloth over his face. Henry’s feet were elevated and rested against the bathtub. His long sleeve shirt was unbuttoned and pulled over his head. Investigators observed dried blood on his face, a bruised left eye, a laceration over the left eyebrow, a bruise on the right shoulder, abrasions around the chin and throat, and a laceration to the throat. A business card from a crematorium had been placed in Henry’s mouth. It appeared there had been a struggle in the master bedroom. Investigators found blood on a bedspread and a man’s necklace on the floor. There was no sign of forced entry. A week later, defendant telephoned Rovira, who asked defendant to surrender. Defendant, emotionally distraught, did so.
A pathologist found various injuries indicative of manual strangulation and death by asphyxiation. Henry had an enlarged heart that may have prevented him from struggling with his assailant.
Henry’s son testified his father had gone to prison for offenses involving minors. This and Henry’s correspondence with defendant had caused problems in the family and led to his parents’ divorce.
A jailhouse informant, Eric Eugene Stevens, testified that he shared a cell with defendant while the case was pending. Stevens claimed defendant revealed he and Henry had had a sexual relationship in prison, but defendant wanted to discontinue the affair. Defendant told him there had been altercations before the incident resulting from Henry’s controlling and demanding behavior and unwanted sexual advances. Defendant explained he had been on the phone making arrangements to move when Henry knocked the receiver out of his hand. Responding, defendant choked Henry and dragged him into the bathroom. Defendant began drinking and watching television. When the phone rang, he heard Henry’s voice on the answering machine, which so upset him that he took a steak knife and stabbed Henry in the throat. Defendant admitted placing a cremation card in Henry’s mouth, viewing this gesture as “‘ironic.’”
Defendant did not testify. Following trial in December 2005, the jury convicted defendant of second degree murder. In February 2006, the court found defendant had previously suffered a violent felony conviction within the meaning of the Three Strikes law and imposed a sentence of 30 years to life in prison.
II
Discussion
A. No Duty to Instruct on Imperfect Self-Defense Manslaughter
The trial court instructed the jury on the lesser included offense of voluntary manslaughter, which it defined as the unlawful killing of a human being without malice “upon a sudden quarrel or heat of passion.” (CALJIC Nos. 8.37, 8.40, 8.42.) But defendant did not request, and the court did not give, an instruction on “imperfect self-defense,” which provides that a homicide committed in the actual but unreasonable belief in the need to defend against imminent peril to life or great bodily injury is voluntary manslaughter rather than murder. (CALJIC No. 5.17; CALCRIM No. 571.)
Defendant now argues the trial court erred by failing to instruct sua sponte on imperfect self-defense. According to defendant, the court had a sua sponte duty to give the instruction “because evidence was introduced that the killing occurred after several days of altercations in which Henry had been sexually aggressive toward [defendant], who no longer wanted a sexual relationship, was controlling and dominating towards [him], and when [defendant] had tried to use the phone to make arrangements to leave, Henry knocked the phone out of [his] hand. . . . Evidence of domestic-type violence is relevant for determining whether the actual but unreasonable belief requirement has been met . . . .” We disagree.
It is well-settled a trial court must give instructions on lesser included offenses if there is some question as to whether all of the requisite elements of the charged crime are present. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Put another way, absent evidence the offense was something less than that charged, the court has no obligation to give instructions on lesser included offenses. (Ibid.) To warrant an instruction on imperfect self-defense, there must be some evidence defendant entertained an actual fear of imminent harm. (In re Christian S. (1994) 7 Cal.4th 768, 783.) As Christian S. explains: “Fear of future harm –– no matter how great the fear and no matter how great the likelihood of the harm –– will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. ‘“[T]he peril must appear to the defendant as immediate and present and not prospective or even on the near future. An imminent peril is one that, from appearances, must be instantly dealt with.”’” (Ibid., original italics.)
Here, no evidence supported defendant’s theory he strangled the victim out of fear or imminent danger to life or great bodily injury. Defendant argues the informant’s testimony furnished the evidentiary support for the imperfect self-defense instruction, but the informant did not testify defendant harbored an actual fear of imminent harm when the victim knocked the phone from defendant’s hand. Defendant’s reliance on People v. Humphrey (1996) 13 Cal.4th 1073 and People v. Jaspar (2002) 98 Cal.App.4th 99 are distinguishable. In both cases, the defendants testified concerning their actual fear of imminent harm. Defendant offered no evidence on this score. Accordingly, the trial court did not err when it omitted instructions on imperfect self-defense.
B. Mental Competency
1. Background Facts
On the day of trial, January 18, 2005, defense counsel reported difficulty communicating with defendant and expressed concern about his client’s mental competence. At the hearing, the bailiff informed the judge that defendant had deliberately injured his hand or wrist in the holding cell with a sharp instrument, requiring hospitalization. The trial court continued the trial and six days later, appointed two psychiatrists to evaluate defendant’s competency under Penal Code section 1368. In March, the parties submitted the issue of competence on the reports of Drs. Sharma and Greenzang.
All further statutory references are to the Penal Code.
Dr. Sharma reported that after a few questions, defendant refused to speak to him. Sharma noted that during the time they conversed, defendant “did not express any fixed delusions, did not appear to be hallucinating, and did respond to questions even though most of his answers were that he could not talk about it.” Sharma opined that “defendant’s presentation in the interview does not allow me to overcome the presumption of competency to stand trial. Therefore, I believe the defendant should be considered competent . . . .”
Defendant also failed to cooperate with Dr. Greenzang, who found it difficult to provide a definitive diagnosis because of defendant’s abbreviated responses. Based on defendant’s bizarre mannerisms and behavior, however, Greenzang concluded defendant likely suffered from a psychotic disorder, perhaps paranoid schizophrenia. Greenzang opined that “based upon his presentation he lacks the ability in his present emotional state to understand the nature of the charges against him or to cooperate with counsel in his own defense,” and that treatment with antipsychotic medication was warranted. On March 11, 2005, the court found defendant incompetent to stand trial and committed him to Patton State Hospital (Patton).
In August, Patton reported that defendant, who was taking Wellbutrin and Paxil, had been only “somewhat compliant with the hospital routine,” “exhibited ineffective coping skills,” and engaged in “self-abusive behavior,” including burning himself with cigarettes. Defendant had frequent conflicts with peers and staff leading to verbal and physical altercations. His medication appeared to reduce his agitation and he recognized that “[b]ad things happen when I don’t take my meds,” but occasionally still refused to take his medication. Defendant could identify the principal figures in a courtroom, but insisted the role of the judge was “‘to give the death penalty.’” He demonstrated awareness of the current charges, basic trial processes, available pleas and consequences of the pleas, and stated he was ready to return to court, but he proclaimed he would not work cooperatively with defense counsel. The consensus of the treatment team was that defendant had made only slight progress and had not regained his competency to stand trial.
By October, the Patton treatment staff came to a different conclusion and certified defendant’s competency had been restored. The hospital reported that “[i]n contrast to his time in jail in which his behaviors were perceived to be the result of psychiatric problems, [defendant] has appeared to be exaggerating and/or feigning behaviors indicative of psychiatric symptoms, especially when he is cognizant of being observed by staff.” When unaware he was being observed, defendant engaged in normal activities and socialized with his peers. But when he knew he was being observed by staff, defendant “presents with increased drowsiness and stooped posture, depressed affect, discusses previous suicide attempts . . . .” Defendant tended to “endorse very severe symptoms with psychotic content that occur infrequently in bon[a] fide psychiatric patients.” He “over-reported” an unlikely number of extreme symptoms covering “a wide range of symptoms that are obvious signs of multiple mental disorders.” Defendant understood “exit criteria and appreciates that not understanding court material will keep an individual at Patton . . . .” He selectively displayed court knowledge and it was “clear that [he] understands important court related information.” Any information he did “not know is by his choice,” and he had the “ability to work [in] a cooperative manner” with legal counsel when “he so chooses and can also choose to be very resistant and uncooperative.” The report observed that defendant “was attempting to portray himself as an individual with exaggerated psychiatric deficits and chose not to cooperate with his treatment plan,” and “is motivated by external incentives to present with grossly exaggerated psychological symptoms.” In sum, the report concluded defendant was “competent to stand trial and is exaggerating symptoms of severe mental illness and chooses not to cooperate with legal counsel . . . . Experiencing such extreme psychiatric symptoms and/or having suicidal ideations does not constitute one as incompetent to stand trial.” The treatment team anticipated that he would continue to report extreme symptoms, exhibit suicidal ideas and behaviors, and choose not to discuss his crime and court-related material in an attempt to return to the hospital. “It is strongly recommended that a copy of this report be made available for future evaluators.”
The treatment team observed defendant surreptitiously discarding his medication, leading them to determine that “[defendant’s] behavioral presentation appears the same whether he is compliant with medications or refuses them.” Finally, perhaps somewhat contradictorily, the report noted that while defendant was “clearly exaggerating symptoms of mental illness, the symptoms of any underlying mental illness at this time appear to be well controlled with his current medications. It is important that [he] continue to take his medications as prescribed in order to keep his psychiatric symptoms under control and to maintain trial competency.”
On October 21, 2005, the trial court reinstated criminal proceedings and scheduled trial for November 28. On that date, the court postponed the trial when it learned jail officials had transported defendant to the hospital for an undisclosed emergency. The court again delayed the trial to December 5 because defendant was subject to a “medical hold.”
On December 5, counsel informed the court defendant refused to talk with him and demanded to represent himself. The court conducted a Marsden hearing. After the hearing, the court reported defendant wanted to represent himself, but remarked, “it seems that he is just playing games with the court.” Later that day, defendant withdrew his self-representation demand. Counsel reported he and his client were communicating and could proceed to trial.
We have reviewed the Marsden transcript. The court asked defendant why he was dissatisfied with counsel, and defendant asserted “I think [counsel] is trying to kill me.” Asked whether he would wear civilian attire at trial, defendant responded “I think you want me to go along with my own execution. And I cannot cooperate with being executed, sir.” Defendant refused to answer several follow up questions. When asked why he answered the first questions and then stopped, defendant said, “I am not going along with my own execution. If you want to execute me, execute me. Kill me. Do it quick. Do it clean. That’s all I have to say.” The court asked why he thought he should be executed, defendant responded “I think you’re trying to . . . why are you trying to trick me?” Defendant refused to respond to questions concerning whether he was trying to avoid going to trial. Finally, asked what his complaint was with his lawyer, defendant said, “Well, I represent myself. Nobody represents me.” He then said he wanted to represent himself.
At this point, the court stated it had reviewed the Patton certification and the antecedent psychiatric reports to determine whether there had been a change in circumstances. The court found there had been no change in circumstances and no substantial new evidence that would prevent trial. And “that was reinforced to the court in the exchange this morning on the record, where Mr. Wolfe was inquiring as to whether or not the court was trying to trick him.”
Defense counsel did not raise an issue as to defendant’s competency, or seek a hearing on the issue. Counsel noted for the record that, on the preceding Monday, defendant had intentionally injured his foot, requiring stitches. The court observed this incident occurred on the day set for defendant’s trial, which “certainly bears on the opinions of Patton and the court,” and noted in “making competency determinations, there can be great fraud in the matter. And it would be a reproach to justice if a guilty man postpones his trial upon a feigned condition . . . .” The court had “confidence in the report as it was filed with the court by the medical director of Patton.” The matter proceeded to trial.
During rebuttal argument on December 13, 2005, defendant jumped from his seat and moved toward the prosecutor. Court bailiffs tackled him before he reached counsel, and removed him from the courtroom. The court moved the trial to another courtroom, where defendant remained confined behind a glass barrier for the remainder of proceedings.
2. No Substantial Evidence of Substantial Change of Circumstances Triggering Need for Subsequent Competency Hearing
Defendant argues the trial court violated his due process right to a fair trial when it did not renew proceedings to determine his mental competence to stand trial. We disagree.
A person cannot be tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).) A defendant’s trial while incompetent violates state law and federal due process guarantees. (Pate v. Robinson (1966) 383 U.S. 375, 385 (Pate); People v. Pennington (1967) 66 Cal.2d 508, 516-517.) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pennington, at pp. 516-517; People v. Marks (2003) 31 Cal.4th 197, 215 (Marks).) A defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against him. The focus of the inquiry is defendant’s mental capacity to understand the nature and purpose of the proceedings against him. (People v. Blair (2005) 36 Cal.4th 686, 711.)
As a matter of due process, the trial court must conduct a section 1368 hearing to determine a defendant’s competency whenever substantial evidence of incompetence has been introduced. (People v. Frye (1998) 18 Cal.4th 894, 951-952 (Frye).) Substantial evidence means evidence that raises a reasonable doubt about the defendant’s competence to stand trial. The competence issue may arise at any point in the proceedings. (People v. Ramos (2004) 34 Cal.4th 494, 507 (Ramos).) All proceedings are suspended until competency is determined. (§ 1368, subd. (c).)
In deciding whether there is substantial evidence of incompetence, a court must consider all of the relevant circumstances, including counsel’s opinion. Determining whether a defendant is incompetent or malingering may complicate the inquiry. Mere bizarre statements or actions are generally insufficient to constitute substantial evidence raising a doubt as to the defendant’s competency. “‘[M]ore is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [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].’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 742.)
When a defendant has been found competent to stand trial, a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that earlier finding. (People v. Jones (1997) 15 Cal.4th 119, 150, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Jones (1991) 53 Cal.3d 1115, 1153.) The trial court may appropriately take its personal observations into account in determining whether there has been a significant change in the defendant’s mental state. (People v. Jones, supra, 53 Cal.3d at p. 1153; People v. Jones, supra, 15 Cal.4th at pp. 149-150; People v. Lawley (2002) 27 Cal.4th 102, 136.) In such circumstances, the court’s decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. (Ramos, supra, 34 Cal.4th at p. 507.) Reviewing courts give great deference to a trial court’s decision whether to hold a competency hearing. (Marks, supra, 31 Cal.4th at p. 220.) But while great deference is given to the trial court’s decision, the trial court must not weigh the evidence to determine if a secondary hearing is required. The court should only look to whether substantial evidence exists in the record showing a change of circumstances supporting another competency hearing, regardless of whether contrary evidence also exists in the record. (People v. Kaplan (2007) 149 Cal.App.4th 372, 384 (Kaplan).)
Kaplan illustrates the point. There, the defendant had a long history of mental illness. To determine the defendant’s competency, the court suspended criminal proceedings before the preliminary hearing and appointed two mental health experts to examine him. Based on their reports, the court found the defendant competent and reinstated criminal proceedings. During the defendant’s trial, the court learned he had been hospitalized after jumping off the jail’s second tier. When defense counsel expressed doubt about his client’s competence, the court solicited updated opinions from the mental health experts that had examined the defendant earlier. One expert found him mentally ill but competent and recommended he continue his prescribed psychotropic medications. The second expert reported the defendant had been taken off lithium two weeks earlier, and his prescription for Paxil had been reduced. The jail psychiatric team had warned any reduction in the defendant’s medication created a good likelihood that his mental condition would “‘decompensate,’” which the psychiatrist opined had “‘indeed . . . occurred.’” (Id. at p. 380.) She stated he had “‘decompensated for reasons that would have undoubtedly destabilized him anyway and it is most unfortunate that this change in medications was necessitated for medical safety reasons and took place concurrent with the start-up of his trial. There has not been sufficient time to achieve a level of management and control that would support him going forward into trial.’” (Ibid., some original italics omitted.) The trial court denied counsel’s request for a second competency hearing. We concluded substantial evidence required a new competency hearing, and the trial court erroneously weighed conflicting evidence in rejecting defendant’s request for a section 1368 evaluation. (Id. at pp. 386.)
Here, the trial court did not abuse its discretion in failing to renew competency proceedings. Patton’s mental health professionals believed defendant was malingering and had the ability to understand the nature of the criminal proceedings and to assist counsel in the conduct of his defense in a rational manner. Unlike Kaplan, counsel here did not report that his client could not understand the nature of the criminal proceedings or assist in the conduct of the defense. No evidence suggested defendant had “decompensated,” rendering him incapable of understanding the proceedings or assisting his lawyer. Rather, defendant’s behavior supported the court’s view defendant sought to delay his trial by feigning incompetence. In sum, the record amply supports the court’s conclusions.
Defendant also contends the trial court violated his due process rights by failing to inquire whether defendant had been receiving his medication. We disagree. Defendant cites no authority placing a sua sponte duty on a court to inquire during trial whether a defendant has received his or her prescribed medication. We conclude imposing such a duty on a trial court is unwarranted where a defendant is represented by competent counsel and the circumstances do not otherwise raise a doubt as to competency. Defendant makes a related argument in conjunction with his writ petition for habeas corpus, which we address below.
C. Restitution/Parole Revocation Fines
The minute order from the sentencing hearing reflects defendant was ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and an identical parole revocation fine (§ 1202.45), which was suspended unless parole was revoked. The abstract of judgment also lists both fines. But the transcript of the sentencing hearing does not reflect the court made these orders.
The Attorney General agrees with defendant the court did not properly impose these fines and that we should direct amendment of the minute order and abstract to reflect a restitution fine of “no more than $200.” We believe the proper resolution is to direct amendment of the minutes to delete reference to the fines and remand to the trial court to determine whether to impose the fines and in what amount. (People v. Zackery (2007) 147 Cal.App.4th 380, 388-389.)
D. Petition for Writ of Habeas Corpus –– Deprivation of Paxil During Trial
Defendant as petitioner asserts his due process right to a fair trial was violated because his trial competence depended on taking his prescribed medication, Paxil, and evidence outside the trial record reflects the drug was withheld during trial. We issued an order to show cause and consolidated the petition with the direct appeal for oral argument and decision. The Attorney General filed a formal return and defendant filed a traverse. We hereby grant defendant’s motion to judicially notice the appellate court file in the consolidated appeal (G036847).
Defendant relies on the declaration of Dr. John Coyle, a neurologist with nearly 40 years experience working with mentally disordered offenders, including 18 and one-half years as a staff neurologist at Atascadero State Hospital. Coyle reviewed defendant’s jail medical records, which documented that jail officials had given defendant the drug Paxil, a medication prescribed by Patton, since defendant’s return from treatment. Defendant’s trial began on December 8, and on December 9, his Paxil medication “was abruptly discontinued.” Coyle asserts abrupt cessation of Paxil “is known to result in anxiety and agitation.” Jail authorities permitted defendant to resume taking Paxil on December 24 following trial. Coyle does not explain why the jail stopped administering the medication, whether defendant was under medical supervision at the time, or whether he continued to receive other prescribed medication during this period. Defendant offers no other evidence on these points.
Defendant relies on the reports from Patton, especially the October report, that emphasized it was “‘important that [defendant] continue to take his medications as prescribed in order to keep his psychiatric symptoms under control and to maintain trial competence.’” (Original italics.) Defendant argues his outburst and removal from the courtroom during closing argument should have alerted the court to inquire about his medication and competency, but the court failed to do so.
The Attorney General’s return does not expressly deny Coyle’s factual assertions. Instead, the Attorney General asserts that the petition raises “the same claim” as the appeal. But unlike the appeal, the writ is based on evidence outside the trial court record that jail officials altered defendant’s prescribed medication during trial.
The Attorney General purports to deny each and every allegation in the petition unless expressly admitted. A return must include more than general denials. (People v. Duvall (1995) 9 Cal.4th 464, 479.) Even where access to critical information is limited or denied to one party, where it is unreasonable to expect a party to obtain it at the pleading stage, or where proper resolution of the case hinges on witness credibility, the return should state with specificity why the information is not readily available, describe the steps taken to obtain it, and why the party believes in good faith that certain alleged facts are untrue. (Ibid.)
The Attorney General asserts defendant’s writ exhibits are “irrelevant” because defendant did not present them to the trial court: “A trial court’s failure to declare a doubt as to a defendant’s competency to stand trial is determined by reviewing the evidence known to the trial court at the time. The record contains all evidence known to the trial court on the competency issue. The evidence Petitioner submits in support of this petition was not considered by the trial court, is irrelevant to these issues and should be disregarded.” He also asserts there is no indication in the record “the trial court knew what [defendant’s] medication was let alone that one of them had been discontinued on doctor’s orders.” The Attorney General asserts “[t]his Court is not deciding whether the evidence raises a doubt as to [defendant’s] competency to stand trial, but whether sufficient evidence supports the trial court not declaring a doubt. That review must be based on the evidence regarding [defendant’s] competency during trial court [sic].”
Based on the Patton report, the court knew defendant had been taking medication and that Patton recommended he continue to do so. The Attorney General offers nothing in support of his assertion defendant discontinued Paxil on doctor’s orders.
The Attorney General’s argument fails to address defendant’s primary complaint that the trial court violated his due process rights by failing to inquire sua sponte whether he was receiving his prescribed medication as recommended by the Patton Hospital psychiatric staff. In offering Coyle’s declaration, defendant also implicitly asserts the alteration of his medication rendered him incompetent to stand trial. Thus, evidence concerning defendant’s psychiatric medications, and the consequences of altering the prescribed amount, are not irrelevant to the issues raised in defendant’s habeas petition. Simply put, a defendant suffers a due process violation if evidence outside the record, unknown to the trial court, establishes defendant was not competent at the time of trial. (See Pate, supra, 383 U.S. at p. 378; People v. Hale (1988) 44 Cal.3d 531, 539 [conviction of an accused while legally incompetent violates due process].) We now turn to the substantive issues raised in defendant’s habeas petition.
Relying on Miles v. Stainer (9th Cir. 1997) 108 F.3d 1109 (Miles), defendant argues due process requires placing on the court an obligation to inquire as to a defendant’s medication status. In Miles, the trial court declared the defendant incompetent to stand trial for robbery and kidnapping. The defendant subsequently regained his competency and pleaded not guilty by reason of insanity. Three psychiatrists assigned to evaluate the defendant reported doctors had prescribed large doses of psychotropic medication, but the defendant did not consistently follow the prescribed regimen. Each noted he had lost and regained competency several times and two of them warned his future competence depended on his continued use of the medication. Jail records showed that he stopped taking his medication several weeks before he accepted a plea bargain and pleaded guilty.
On review, the Court of Appeals concluded the trial court violated the defendant’s due process rights by failing to hold a competency hearing. (Miles, supra, 108 F.3d at pp. 1112-1113.) The court stated, “Since the state court file contained doctors’ warnings that Miles’ competence depended on medication which he often refused to take, it was incumbent upon the state trial judge to ask him whether he had been taking his medication before accepting his guilty plea. Under the circumstances, the court’s failure to inquire casts a reasonable doubt on the validity of the guilty plea.” (Id. at p. 1112.) The appellate court remanded the case to the district court with instructions to grant the writ unless the state trial court conducted a hearing to determine whether the defendant was competent when he pleaded guilty. (See Kaplan, supra, 149 Cal.App.4th at pp. 389-390 [retrospective competency hearing may be held when record contains sufficient information upon which to base a reasonable psychiatric judgment].)
Miles concluded the trial court’s failure to hold a competency hearing violated due process. Contrary to defendant’s argument, Miles did not hold that a trial court violated due process by failing to monitor a defendant’s psychiatric medication. Rather, the court missed an opportunity to resolve the reasonable doubt concerning the defendant’s competency by failing to ask whether the defendant had been taking his medication. Under the particular circumstances in Miles, the court should have made this inquiry because the court knew the defendant had declined his medication in the past, resulting in his in competency and a halt in the proceedings. But, more importantly in our view, the court’s duty to inquire stemmed not only from its awareness of defendant’s condition, but from its obligation to ensure the defendant understood his constitutional rights and freely and voluntarily waived them before accepting his guilty plea. The court’s obligation is to conduct “a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” (Von Moltke v. Gillies (1948) 332 U.S. 708, 724.) The law requires judges to exercise “the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” (Boykin v. Alabama (1969) 395 U.S. 238, 243-244.)
Here, defendant proceeded to trial represented by counsel. Unlike the defendant in Miles, defendant did not submit a guilty plea and therefore the trial court was not called upon to determine whether defendant understood the consequences of his plea. Nor did defendant’s behavior suggest he was not competent to stand trial. Defendant’s attorney previously had raised competency issues with the court, but did not raise the issue before or during trial. Under these circumstances, the trial court reasonably could assume defense counsel would bring to the court’s attention any issue pertaining to defendant’s competency, such as the curtailment or alteration of defendant’s psychiatric medication. (See People v. Howard (1992) 1 Cal.4th 1132, 1163-1164 [court “shall” order competency hearing under section 1368, subdivision (b) “if counsel informs the court that he or she believes defendant is or may be mentally incompetent” and substantial evidence supports counsel’s representation].) Consequently, the trial court had no sua sponte duty to inquire about defendant’s medication.
Turning to the competency issue and assuming the facts asserted in the petition are true, defendant is not entitled to relief because he has not demonstrated that under these circumstances the deprivation of Paxil constituted “substantial evidence showing a substantial change of circumstances” concerning his competency (Kaplan, supra, 149 Cal.App.4th at p. 376.) Defendant’s self-inflicted injury and refusal to speak with his attorney occurred before the jail stopped administering Paxil to defendant. There is no evidence indicating defendant had difficulty understanding the proceedings or assisting his lawyer between the start of trial on December 9 and defendant’s outburst of December 13. Coyle indicates that abrupt cessation of Paxil might result in anxiety and agitation, but he never linked any particular behavior, such as the incident on December 13, to the deprivation of Paxil. Defendant offered no evidence concerning his mental state during trial, such as a declaration from his trial counsel or other persons who might have observed him during this portion of the trial. As noted above, defense counsel never reported concerns about his client’s competency after December 9. (See United States v. Clark (9th Cir. 1980) 617 F.2d 180, 186 [defense counsel’s failure to move for competency hearing is evidence of competence].) Most significantly, neither Coyle nor any medical professional has opined that anxiety, agitation or other side effect from abrupt cessation of Paxil would have rendered defendant unable to understand the proceedings or to work with his attorney.
Defendant has not argued he was denied due process because cessation of Paxil caused him to act out during closing argument and thereby prejudiced him in the eyes of the jury.
Finally, we must consider Patton’s recommendation that defendant continue taking his psychiatric medications to maintain his competency for trial, with the hospital staff’s conclusion defendant was malingering and his behavior remained the same even when he disregarded his medication. Because Patton expressed uncertainty as to whether defendant actually suffered from mental illness, we read its admonishment as advisory rather than mandatory. In other words, prudence dictated giving defendant the prescribed medication, but defendant was not necessarily incompetent without them. We therefore conclude defendant has failed to present sufficient evidence to require a hearing on defendant’s retrospective competence.
III
Disposition
The judgment is affirmed. The trial court is directed to prepare amended minutes of the February 3, 2006, sentencing hearing to delete reference to a $10,000 restitution fine pursuant to section 1202.4 and to a $10,000 parole revocation fine pursuant to section 1202.45. The case is remanded to the trial court for consideration of
whether to impose restitution fines pursuant to sections 1202.4 and 1202.45. Following such consideration, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The petition for writ of habeas corpus is denied.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.