Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. MA035469, Charles E. Horan and Charles A. Chung, Judges.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Michael Dennis Berni, defendant, appeals from a judgment of conviction, after a jury trial, of assault with a deadly weapon (count 1) and assault by means likely to produce great bodily injury (count 2). (Pen Code, § 245, subd. (a)(1).) The jury found as to each count defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) who was more than 60 years old (§ 1203.09, subd. (f)). The trial court found defendant was twice convicted of violent or serious felonies within the meaning of sections 667 and 1170.12. Defendant was sentenced to 38 years to life in state prison: 25 years to life on count 1, enhanced by 3 years pursuant to section 12022.7, subdivision (a), and 10 years under section 667, subdivision (a)(1); and 25 years to life on count 2, stayed pursuant to section 654, subdivision (a). Defendant received credit for 477 days, 415 days in actual pretrial custody and 62 days of conduct credit. (§ 2933.1, subd. (a).) He was ordered to pay: a $200 restitution fine (§ 1202.4, subd. (b)); a $200 parole restitution fine (§ 1202.45); a $20 court security fee (§ 1465.8, subd. (a)(1)); and restitution to the victim. (§ 1202.4, subd. (f).) Defendant argues he was denied his right to a fair mental competency hearing. We reject his contention in this regard and otherwise make minor modifications to the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
The orally imposed sentence as reflected in the reporter’s transcript controls over the sentence recorded in the clerk’s transcript. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
II. BACKGROUND
A. September 6, 2006
Prior to trial, on September 6, 2006, defendant appeared before Commissioner John Murphy to discuss a settlement offer. Defendant advised Commissioner Murphy: “I had a stroke. I’m on mental disability. They say I’m mentally retarded.” Defendant also said he had been hit in the head with a baseball bat in 1984. Following further discussion with defendant, Commissioner Murphy expressed a doubt as to defendant’s mental competence. Commissioner Murphy ordered a recess so Deputy Public Defender Dennis Jones could speak with defendant. Mr. Jones was defendant’s lawyer. Mr. Jones responded, “I don’t have time to subpoena any records and I didn’t know he was mentally unstable.” Commissioner Murphy stated, “ . . . I won’t make any findings on anything that I don’t have proof of, but what I will do now is give Mr. Jones a chance to speak to his client and see what Mr. Jones’[s] opinion is as to his mental competency and take it from there.” Following a recess, Mr. Jones expressed a doubt as to defendant’s mental competence to stand trial. Commissioner Murphy suspended criminal proceedings pending a competency determination.
B. The February 21, 2007 Competency Trial
The matter was called for a section 1368 competency trial before Judge Charles A. Chung on February 21, 2007. Judge Chung had before him five psychiatrists’ reports. The psychiatrists had interviewed defendant in custody, at the Twin Towers Correctional Facility. Three of the psychiatrists concluded defendant was competent to stand trial; two found he was not. Both counsel submitted on the psychiatric reports. Judge Chung asked, “[D]o all sides agree they will stipulate or submit on the doctors’ reports?” Mr. Jones replied, “Yes.”
Dr. Kaushal K. Sharma, a Clinical Professor of Psychiatry at the University of Southern California Keck School of Medicine, interviewed defendant on September 11, 2006. Dr. Sharma did not have any background information on defendant. Dr. Sharma found: defendant was unable to provide direct responses to questions; made bizarre, disjointed, and irrelevant statements; and frequently became angry and hostile. Dr. Sharma concluded defendant was incompetent to stand trial: “[Defendant] presents himself as a person who is demonstrating disorganization of thought process, paranoid ideation, grandiosity, tangential speech, loquacious and rapid pressured speech, and disorientation. Under these circumstances, I believe [defendant] is not capable of understanding his legal predicament and cannot rationally cooperate.”
Dr. Ronald A. Markman, a general and forensic psychiatrist, examined defendant on September 15, 2006. Dr. Markman had reviewed the police reports, but did not have access to defendant’s medical files. Dr. Markman observed defendant was eccentric and boisterous, but generally cooperative. Dr. Markman concluded defendant was competent to stand trial: “Current mental status examination revealed him to be oriented, alert, cooperative and of normal intelligence with a good fund of knowledge and fundamental skills. Responses were generally relevant and coherent, though at times he would ramble, memory was adequate and affect was shallow, though intense. He denied any history of hallucinations. Judgment was eccentric, and insight into his condition was . . . superficial. [¶] Based on this current evaluation and a review of the available record, I would conclude that [defendant] is competent to stand trial . . . . He is oriented, aware of the pending charge, demonstrated an understanding of the nature and purpose of the proceedings and is capable of cooperating with his attorney in a rational manner in his defense.”
Dr. Suzanne M. Dupée, an adult, child, adolescent, and forensic psychiatrist, examined defendant on October 18, 2006. Dr. Dupée described defendant as follows: “The defendant was a very difficult historian. He was somewhat uncooperative, and was disrespectful, flirtatious and over[ ]familiar with this examiner.” Dr. Dupée observed: “[Defendant] was uncooperative and disrupted the interview constantly with inappropriate comments. He was mostly easily redirected and answered pertinent questions. . . . His thought processes were tangential, but redirectable. . . . His insight and judgment were guarded.” Dr. Dupée concluded: “[Defendant] is competent in that he is presently [able] to understand the nature and purpose of the proceedings against him. Although he is cantankerous, irritable and inappropriate, he does not present with mental illness that would render him incompetent under [P]enal [C]ode [sections] 1368-1370. It is expected that he might have problems interacting with his attorney, but his behavior is not due to mental illness.”
Dr. Sanjay M. Sahgal, a forensic psychiatrist, interviewed defendant on November 24, 2006. Dr. Sahgal found defendant had a mental disorder, specifically “a disinhibition syndrome” resulting from a stroke. Dr. Sahgal explained: “Individuals who suffer from strokes often experience difficulty controlling their emotions as a consequence of injury to the frontal lobes of their brain. I believe that this may be occurring with [defendant].” Dr. Sahgal further explained: “Individuals who experience strokes often incur damage to their frontal lobes. This type of stroke typically results in some disinhibition of emotion due to the neurological damage. [Defendant’s] disinhibition is not excessive and . . . he is redirectable if he does get somewhat emotional.” Nevertheless, Dr. Sahgal concluded defendant was competent to stand trial: “Despite the defendant’s neurological and psychiatric problems, he is currently competent to stand trial. He clearly understands the nature and purpose of the legal proceedings against him. . . . He can cooperate in a rational manner if he chooses to do so. The defendant’s emotional state is somewhat fragile given that he is prone to occasional outbursts. However, he was generally directable and rational during the interview and I believe that his clinical presentation rises to the threshold of mental competency.” More specifically regarding competency, Dr. Sahgal observed: “[The defendant] was able to state the charges against him. . . . The defendant is aware of the roles of the judge, jury, public defender, and prosecutor in a typical jury trial. He is aware of the concept of plea bargaining. He understands the various pleas available to the defendants in our legal system as well as their meanings. I believe that he understands the basic nature and purpose of the legal proceedings against him. [¶] . . . He demonstrated no significant cognitive deficits and there was no clinical evidence of delusional thinking. I believe that he is capable of cooperating in a basically rational manner with counsel if he chooses to do so.”
Finally, Dr. Kory J. Knapke, a general and forensic psychiatrist, interviewed defendant on February 9, 2007. Dr. Knapke had reviewed the probation officer’s report and the “incident report.” Dr. Knapke found defendant was in a “full-blown manic episode” and in need of psychiatric medication and treatment. Defendant said he had suffered a stroke. But Dr. Knapke did not observe any physical manifestations of a stroke. Defendant also said he had been hit in the head. Dr. Knapke observed: “[Defendant] was extremely manic at the time of this interview, had pressured, rambling speech, was emotionally labile (emotions rapidly shifted), and was highly agitated. His speech was so pressured at the time of this interview that I had difficulty interrupting him and he would become quite agitated every time I attempted to interrupt him.” Dr. Knapke stated, “ . . . I was unable to have any rational conversation with [defendant] due to his current manic state. However, I would occasionally ask a question and I would sometimes obtain pertinent information about the defendant.” Dr. Knapke concluded defendant was not competent to stand trial: “The defendant does appear to understand the charges against him and the potential consequences if convicted. He also appeared to understand the possible pleas in a courtroom but I was unable to explore his understanding of other courtroom proceedings due to his rambling, agitated mental status. However, I believe that the defendant most likely does understand basic courtroom proceedings. [¶] . . . The defendant was not able to rationally cooperate with me during this interview. . . . The defendant clearly is unable to rationally communicate with his attorney at the present time. [¶] . . . The defendant is not competent to stand trial because I do not believe that he can rationally communicate with his attorney in his defense.”
Judge Chung found defendant to be competent to stand trial. Judge Chung stated: “[A]fter speaking with [defendant] at length now and listening to him talk and interact, I do believe he is competent. Initially I had some concerns but now seeing him face to face and listening to him talk, I do believe he is competent. [¶] I note that his answers are responsive to the questions I have asked. I note that he appears to be very well groomed and neatly attired. His beard, though full, is trimmed. [¶] . . . [¶] . . . He appears to be alert, calm and, again, his actions and his speech and [h]is conversation [is] actually quite lucid and comprehensible. And so I do find that he is competent. [¶] I note that three out of the five doctors found him to be competent. It appears that there are times when he gets somewhat upset, and rightly so considering that he’s having to go through the criminal justice system, but at this point I do find him competent.” Mr. Jones, defendant’s lawyer, objected: “Based on Dr. Knapke’s report, [he] thought it would be very difficult for [defendant] to be able to assist me in trial and I perfectly agree with him.” Judge Chung ruled: “[W]hen Dr. Knapke interviewed him, it appeared this defendant was having an episode so I’m taking that to be kind of an unusual circumstance. But, again, the other three doctors found him to be competent, one in September, one in October, one in November. And then in February we had the episode where Dr. Knapke met with him and had some difficulty with him. [¶] There is no doubt that most of the doctors indicate that he can cooperate with his attorney but that it’s going to take some patience on the part of the attorney, and I know that’s going to be –it’s going to take some work on the attorney’s part. However, I don’t think that a difficultly of this nature arises to the level of him not being able to adequately assist you in his defense.” Judge Chung ordered the criminal proceedings reinstated. He set the matter for a March 22, 2007, pretrial hearing and an April 12, 2007 trial. Mr. Jones inquired, “Your honor, this is going to be a competency trial.” Judge Chung responded, “We just had it.”
C. April 5, 2007
On April 5, 2007, Mr. Jones again expressed a doubt as to defendant’s competence. Judge Chung spoke to defendant. Defendant was asked about his medical condition and his physical recovery and whether he understood the charges against him. Defendant began to discuss his defenses. Thereupon, at the deputy district attorney’s suggestion, Judge Chung commenced an ex parte hearing. Following that hearing, and on the record, Mr. Jones explained his reasons for declaring a doubt as to defendant’s competence. Mr. Jones stated: “In speaking to my client he seems to not want to take my advice and is under the impression if he is allowed to—if he is not allowed to testify, his defense will not be presented to the jury. If he is allowed to testify, he is not going to just basically listen to my advice. He is going to be on his own. [¶] So he is perfectly free to present a defense on his own if he wants to go pro per but . . . .” Judge Chung ruled: “I’ve talked to your client at length and he is incredibly lucid and actually very articulate. And everything you have stated . . . may go to some difficulty between attorney/client relationships, and just because a client does not want to listen to the advice of the attorney does not present substantial evidence for a lack of competence. There are other issues in terms of whether or not a client wants to take his attorney’s advice or not. But from everything I have seen, I do not find that there is a substantial basis to—or substantial evidence for the defendant’s incompetence and so I’m not going to suspend proceedings under [section] 1368.” Judge Chung noted his ruling was over Mr. Jones’s objection.
D. April 18, 2007
The matter was before Judge Chung on April 18, 2007. Mr. Jones again expressed a doubt as to defendant’s competence. The following transpired: “Mr. Jones: Your honor, it’s the same concern. He is not aware of what the—number one, what the potential consequences are and also he is not able to assist me in a proper defense, your honor. [¶] . . . [¶] The Court: If you can be specific. [¶] Are you having trouble—is he having trouble understanding you? [¶] . . . [¶] Mr. Jones: He has no problem understanding me. I have problems understanding him. If I ask him to go into a specific area of this case, he will start talking about other things of which he has repeated over and over again. Some things -- [¶] . . . [¶] The Court. All right. Mr. Berni, I know I have asked you these questions. [¶] The Defendant: Yes, your honor. [¶] The Court: You know where you are right now; is that correct? [¶] The Defendant: Yes, sir. [¶] The Court: Where are you? [¶] The Defendant: I’m in Lancaster court—courtroom. [¶] The Court: You understand there is a criminal case pending against you? [¶] The Defendant: Yes, which it’s hard to understand why it is. The man attacked me in my house. I was punched first. The man punched me four times before I even hit him once even, though I used a pot to hit him in the forehead. [¶] The Court: Hold on right there. I don’t want you to talk about the facts of the case. But it is your assertion that this was self-defense; is that correct? [¶] The Defendant: Of course, because he hit me—I had a heart attack and I had broken ribs and he hit me in the—here is my friend. [¶] The Court: Who is the gentleman sitting to your right? [¶] The defendant: Between my attorney and the judge—I can’t remember his name. The bad guy. [¶] The Court: The bad guy being the D.A.; right? [¶] The Defendant: Yeah, that’s right. But he is a nice man. He is doing his job. [¶] The Court: The person immediately to your right is your attorney? [¶] The Defendant: My attorney. But we are having problems, fly problems with your zipper or what? [¶] The Court: We had this discussion before. I understand that there is some frustration, Mr. Jones, on your part because you are telling him that his exposure is very high and he doesn’t want the deal. But, quite frankly, this is now about the fourth conversation I have had with him. As always, he’s been incredibly lucid and a great sense of humor. I have seen him talk with the bailiff. They have joked around in a very lucid manner. Mr. Berni has been nothing but pleasant, quite frankly, and he’s able to communicate so I don’t find that there is substantial evidence to declare a doubt.”
E. April 20, 2007
Trial was to commence before Judge Charles Horan on April 20, 2007. Mr. Jones appeared and again declared a doubt as to defendant’s competence. Mr. Jones said, “I have not been able to communicate with my client effectively and he has not been able to assist me in the preparation of this trial.” Mr. Jones asserted there had never been a competency trial: “The Court: . . . [¶] . . . That was a competency trial that was conducted . . . . [¶] Mr. Jones: No, it was not, your honor. [¶] The Court: Well, counsel, maybe you and I are not on the same wavelength in terms of some of the terminology. [¶] When you submit five reports as evidence to the court and stipulate that those witnesses be deemed to have been called, sworn, and to have testified consistent with their reports, the matter is then submitted to the court and the court makes a finding of competency. You have had a competency trial . . . . [¶] . . . [¶] Mr. Jones: The competency trial consisted of the court asking my client . . . several questions, who am I, who was the person with the black robe, and who is the person on the other side. [¶] When I did submit [on] those reports, your honor, there [were] conversations of perhaps sending my client to Patton. So if you want to get the gist of that court proceeding, the court proceeding consisted of the judge informing me, myself, and the [district attorney] that he was considering Patton, would you guys submit on the records. [¶] Based on that representation by the court, I submitted to the court. And after that, he asked my client three questions of which lasted one minute. At that particular time nothing else was said on the record and he deemed my client competent. [¶] The Court: He considered the reports, apparently, of five psychiatrists. [¶] Mr. Jones: Two of the psychiatrists of which deemed my client incompetent. [¶] The Court: Okay. I think what you need to do is take it up with the Court of Appeal. We’re not going to have a third competency trial based upon the same matter.”
The following transpired: “The Court: . . . [¶] Has anything changed since the last time [you declared a doubt]? [¶] Mr. Jones: I spoke with my client after court, I believe it was on Wednesday, at Lancaster, your honor, and at that point I was not able to communicate with him or to -- [¶] The Court: That really wasn’t my question. My question is: Has anything changed or is this sort of the status you’ve been in with your client since the beginning? [¶] Mr. Jones: That’s correct. [¶] The Court; Well, anything else you want to say on that point? [¶] Mr. Jones: No. [¶] The Court: In other words, . . . am I correct [in] stating that you are sort of reasserting what you have always believed, your client is incompetent, as opposed to some new revelation based on some new bizarre behavior or something of that nature? [¶] Mr. Jones: It’s not new bizarre behavior. It’s the same bizarre behavior. [¶] . . . [¶] Mr. Jones: . . . [¶] Like I said, I spoke to my client after court on Wednesday and I’ve come to the conclusion, just as Dr. Sharma has come to the same conclusion, just as Dr. Knapke has come to the same conclusion with their interview[s] of my client, which are medical records in the court file. [¶] The Court: The problem is a court, or courts, plural, have come to [a] contrary conclusion, so it’s not something that we can endlessly litigate. There is an end to all things. [¶] Absent some fairly distinct change of circumstances or some fairly distinct new information, seems like we’d simply be plowing the same ground. The decision has been made, apparently, that your client is competent to stand trial and he will have his trial. [¶] Mr. Jones: Who made that determination, your honor?” A discussion of the procedural history followed.
III. DISCUSSION
A. Competency Hearing
Defendant asserts he did not receive a fair competency hearing. Defendant argues he was denied the effective assistance of counsel: Mr. Jones failed to subpoena medical records regarding defendant’s head injury and stroke; Mr. Jones failed to request neurological testing to determine the extent of frontal lobe damage; Mr. Jones waived a jury trial; and Mr. Jones submitted on the psychiatrists’ reports.
The Supreme Court has held: “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Before ineffective assistance of counsel may be found, there must be proof not only that the defense lawyer’s performance was deficient but also that the defendant suffered prejudice as a consequence. (Strickland v. Washington, supra, 466 U.S. at pp. 694, 697; People v. Horton (1995) 11 Cal.4th 1068, 1122; In re Fields (1990) 51 Cal.3d 1063, 1068-1069; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Defendant has not shown Mr. Jones rendered ineffective assistance resulting in prejudice. We need not even consider whether Mr. Jones’s performance was deficient because defendant has failed to establish, as a demonstrable reality, there is a reasonable probability of a different result. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Lawley (2002) 27 Cal.4th 102, 136; People v. Horton, supra, 11 Cal.4th at p. 1122.)
B. Great Bodily Injury Enhancement
The jury found as to counts 1 and 2that defendant personally inflicted great bodily injury upon the victim. Consequently, pursuant to section 1385, subdivision (a), Judge Horan was required either to strike or impose the section 12022.7 three-year enhancement as to each count. (§ 12; see People v. Thomas (1997) 56 Cal.App.4th 396, 405; cf. People v. Bradley (1998) 64 Cal.App.4th 386, 390-392 [§ 667.5, subd. (b)]; People v. Harvey (1991) 233 Cal.App.3d 1206, 1231 [same].) Judge Horan imposed the enhancement as to count 1, but in sentencing on count 2, failed to mention the great bodily injury finding. Upon remittitur issuance, Judge Horan shall either strike or impose (and then stay) the section 12022.7 three-year enhancement as to count 2. If Judge Horan decides to strike the enhancement, he is to set forth the reasoning for the exercise of his discretion on the record. (§ 1385, subd. (a); People v. Orin (1975) 13 Cal.3d 937, 944.)
C. Court Security Fee
Judge Horan imposed a single $20 court security fee pursuant to section 1465.8, subdivision (a)(1). A court security fee pursuant to section 1465.8, subdivision (a)(1), is mandatory and must be imposed for every conviction suffered. Judge Horan should have imposed a $20 court security fee as to each of defendant’s two convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; see People v. Crittle (2007) 154 Cal.App.4th 368, 370-371; People v. Jefferson (2008) 158 Cal.App.4th 830, 846.) The failure to impose the mandatory fee results in an unauthorized sentence, which may be addressed on appeal in the first instance. (See, e.g., People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.) An additional $20 court security fee must be imposed. (People v. Crittle, supra, 154 Cal.App.4th at pp. 370-371.)
D. Custody Credit
Defendant received an extra two days of custody credit. The failure to award a proper amount of credits is a jurisdictional error that may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on another point in People v. Fosselman (1985) 33 Cal.3d 572, 583, fn. 1.) Defendant was arrested on March 25, 2006, and sentenced on May 11, 2007. He was given credit for 415 days in pretrial custody, plus 62 days of conduct credit, for a total of 477 days. He was only entitled, however, to credit for 413 days in pretrial custody plus 62 days of conduct credit (§ 2933.1) for a total of 475 days. (§§ 2900.5, subd. (a), 4019.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
We modify the judgment to impose an additional $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1) and award defendant credit for 413 days in pretrial custody plus 62 days of conduct credit for a total presentence custody credit of 475 days. Upon issuance of the remittitur, the trial court must either strike or impose the Penal Code section 12022.7 three-year enhancement as to count 2 and, if it decides to strike the enhancement, state its reasoning for the exercise of its discretion on the record. The clerk is to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
I concur: ARMSTRONG, J.
MOSK, J., Dissenting
I dissent.
It is true that “a defense attorney may validly submit a competency determination on the available psychiatric reports” (People v. Weaver (2001) 26 Cal.4th 876, 905), waive live testimony, and waive jury in a competency hearing. (Id at p. 904). But here, it appears that defense counsel did not understand that he was waiving those procedures, for he stated that he expected the competency hearing to take place at the scheduled pre-trial hearing. At that point the trial court informed him that the competency hearing had already taken place. At trial, defense counsel stated that there had been no competency trial.
I do not believe defendant received the required “full competency hearing.” (People v. Stankewitz (1982) 32 Cal.3d 80, 92) or knowingly waived it. This was due to defense counsel’s misunderstanding as to what was occurring, and this can be attributed to what we refer to as ineffective assistance of counsel. That two of five of the experts opined that defendant was not competent to stand trial and the others who found him competent indicated that defendant suffered severe mental deficiencies, and that defense counsel repeatedly expressed concerns about defendant’s behavior suggest that the failure to have a full hearing was prejudicial. I also have concerns as to why there was no explanation as to the necessity for the required studies for one developmentally disabled. (Pen. Code, § 1369; People v. Leonard (2007) 40 Cal.4th 1370, 1391 [failure to appoint regional director not prejudicial].)
Accordingly, I would reverse and remand to the trial court with directions to decide whether a retrospective competency hearing should be held to determine whether defendant was competent at the time of trial. If a retrospective competency hearing is done and the defendant is found to have been competent, the judgment should be reinstated. If no retrospective hearing takes place or the defendant is found not to have been competent at the time of trial, defendant would be entitled to a new trial.
It seems to me that in this case a determination that defense counsel did not render prejudicial, ineffective assistance could not be made. At the very least, such a determination could only be made upon a habeas corpus petition. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)