Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 05-6355302
Haerle, J.
I. INTRODUCTION
This is the second appeal Michael Gralla has filed in this case. In March 2007, this court affirmed Gralla’s June 2005 convictions for attempted murder, robbery, assault with a firearm and mayhem. (See People v. Gralla/In re Gralla (Mar. 21, 2007, A111363/A115953) [nonpub. opn.] (Gralla I).) Although we expressly affirmed the judgment against Gralla, we remanded this case to the trial court for re-sentencing. Pursuant to our remand instructions, the trial court sentenced Gralla to an aggregate term of 35 years to life in prison.
In this appeal, Gralla contends that his constitutional right to due process was violated because the evidence raises a reasonable doubt about his competence to stand trial in 2005 and to be re-sentenced in 2008, but he was never afforded a competency hearing. Gralla further contends, pursuant to a petition for writ of habeas corpus which we consider along with this appeal, that he was denied the effective assistance of counsel at the re-sentencing hearing to the extent his attorney failed to produce additional evidence regarding his potential incompetence. We reject these contentions and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Gralla I
The facts relating to Gralla’s offenses are set forth in our decision in Gralla I and need not be repeated here. Suffice it to say, Gralla knew his victim, Muhammad Malik, who was the resident manager of an Express Inn in Laytonville where Gralla spent time. Gralla, who testified at trial, admitted that he robbed Malik and then shot him when Malik unexpectedly attempted to flee. Gralla claimed that he did not intend to kill or even hurt Malik and that he felt very “guilty that [Malik was] hurt as bad as he was.”
A jury found Gralla guilty of attempted murder, robbery, assault with a firearm and mayhem. The trial court sentenced Gralla to a total term of 39 years to life in prison. Gralla appealed the judgment, alleging that the trial court committed reversible errors by failing to hold a competency hearing and by failing to investigate potential juror misconduct. Gralla also challenged the sufficiency of the evidence to support several of his convictions and claimed that the trial court made several sentencing errors. In a related petition for writ of habeas corpus, Gralla alleged he was denied the effective assistance of counsel because his trial attorney failed to present evidence raising a reasonable doubt about his competence to stand trial.
We affirmed all of Gralla’s convictions in Gralla I. We also expressly found, among other things, that “the trial court in this case was not presented with substantial evidence that there was a reasonable doubt about whether Gralla was competent to stand trial.” And we rejected Gralla’s contention that he was denied the effective assistance of counsel. However, we found that sentencing errors required us to remand the case for re-sentencing. Therefore, the Disposition section of our opinion stated: “The petition for writ of habeas corpus is denied. The judgment is affirmed and this case is remanded for re-sentencing consistent with this opinion.”
B. Post-Remand Proceedings
After this case was remanded, Gralla was represented by private counsel who filed a motion for new trial. A primary ground for the motion was that Gralla’s prior attorney was ineffective in several respects including that he failed to develop and pursue the issue of Gralla’s competence to stand trail. The People opposed the motion for a new trial on the ground that the trial court’s jurisdiction was limited by the remittitur to the subject of re-sentencing. Gralla’s attorney conceded, at the hearing on this motion, that “the scope of this Court’s jurisdiction is defined by the remitter [sic].” The trial court denied the motion for a new trial on this ground.
On May 9, 2008, the trial court sentenced Gralla to an aggregate term of 35 years to life in prison.
III. APPEAL ISSUES
Gralla contends that both the May 2008 sentencing order and the underlying judgment must be reversed because the record raises a reasonable doubt as to whether he was competent to stand trial in 2005 and to be re-sentenced in 2008.
A. Legal Principles
“A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent... if, as a result of a 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.” (Pen. Code, § 1367, subd. (a).)
A defendant is presumed to be mentally competent to stand trial. (People v. Young (2005) 34 Cal.4th 1149, 1216.) However, “[a] trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.]” (People v. Howard (1992) 1 Cal.4th 1132, 1163.) Indeed, if there is substantial evidence the defendant may not be competent, even if there is conflicting evidence, the trial court must conduct a full competency hearing. (People v. Young, supra, 34 Cal.4th at pp. 1216-1217; People v. Pennington (1967) 66 Cal.2d 508, 516-517.) But, “[w]hen the evidence casting doubt on an accused’s present competence is less than substantial,... [i]t is within the discretion of the trial judge whether to order a competence hearing.” (People v. Welch (1999) 20 Cal.4th 701, 742.)
“Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]” (People v. Howard, supra, 1 Cal.4th at p. 1163.) Under the applicable substantial evidence test, “‘more 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.]” (People v. Davis (1995) 10 Cal.4th 463, 527.)
B. Gralla’s Competence to Stand Trial
Gralla contends his conviction and sentence violate due process and must be reversed because there was substantial evidence before the superior court during the re-sentencing proceeding that Gralla was not competent to stand trial and yet the court failed to conduct a competency hearing.
Gralla cannot raise the issue of his competence to stand trial in this appeal. In Gralla I, this court affirmed the judgment against Gralla and remanded this case to the trial court for the limited purpose of re-sentencing. Therefore, only issues relating to Gralla’s new sentence can be raised in this subsequent appeal. (See People v. Deere (1991) 53 Cal.3d 705, 713.)
Gralla contends that Gralla I does not contain any language which precluded the superior court from conducting a hearing regarding his competence to stand trial. We disagree. In Gralla I, appellant argued that “his due process rights were violated because the trial court failed to conduct an inquiry regarding Gralla’s competency when it was presented with substantial evidence of a reasonable doubt as to whether Gralla was competent to stand trial.” This court rejected this claim of error and expressly found that “the trial court in this case was not presented with substantial evidence that there was a reasonable doubt about whether Gralla was competent to stand trial.”
As note above, we also denied Gralla’s habeas petition in Gralla I. Gralla used that petition to submit evidence of jail medical records which he claimed raised a reasonable doubt regarding his competency to stand trial. We evaluated that evidence and reached a contrary conclusion. Gralla also filed a so-called amended writ petition pursuant to which he attached additional evidence, allegedly supportive of his contention that he was incompetent at the time of trial. We questioned the propriety of the amended filing, but nevertheless made the substantive finding that the additional documents did not alter our conclusion regarding Gralla’s competency to stand trial.
Even if we had not directly disposed of this issue in Gralla I, Gralla could not raise it here because, as noted above, this court affirmed the judgment against Gralla and remanded this case solely for the sole purpose of re-sentencing. Furthermore, even when a judgment is reversed for a limited purpose (something that did not happen here), “‘the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court.’ [Citations.]” (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367.) “Any proceedings had or judgment rendered contrary to such specific directions would be void.” (Carter v. Superior Court (1950) 96 Cal.App.2d 388, 391.) In this case, our remand instruction in Gralla I was clearly limited to re-sentencing. The lower court did not have the authority to re-try any other issue or make any other findings pertaining to the judgment.
In his reply brief, Gralla concedes that Gralla I establishes that “the facts which were before the trial court in 2005-2006 did not raise a doubt about appellant’s competence.” (Emphasis omitted.) Gralla contends, however, that Gralla I does not preclude him from trying to prove that facts before the court that conducted the re-sentencing hearing in 2008 raised a doubt about whether Gralla was competent to stand trial in 2005. It is simply not clear to us why Gralla believes this to be so. To the extent he is arguing that his alleged discovery of new evidence entitles him to collaterally attack our decision in Gralla I, we have already explained that this forum does not afford him such an opportunity.
If Gralla is suggesting that the superior court that conducted the re-sentencing hearing had an obligation to assess whether Gralla was competent two years earlier when the trial was conducted, we disagree. As we noted in Gralla I, “[t]he United States Supreme Court has defined competence to stand trial as a defendant’s ‘“‘“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. Young, supra, 34 Cal.4th at p. 1216, emphasis added.) Therefore, the doubt that triggers a trial court’s obligation to conduct a competency hearing is a doubt about the defendant’s present competency, not about his past mental state.
Gralla points out that a doubt about a criminal defendant’s competency “can arise at any time prior to sentencing....” We do not disagree. “The court’s duty to conduct a competency hearing arises when such evidence is presented at any time ‘prior to judgment.’ [Citations.]” (People v. Jones (1991) 53 Cal.3d 1115, 1152-1153.) Therefore, Gralla can properly raise the question whether there was evidence before the court that conducted the re-sentencing which raised a reasonable doubt about Gralla’s competence at that time. However, as we have already explained, Gralla’s competence to stand trial has already been established by our decision in Gralla I.
Finally, Gralla argues that “when a court determines after the trial that a defendant is not competent, he must be afforded a new trial, because the court lacked jurisdiction to try him.” (See Dusky v. United States (1960) 362 U.S. 402, 403; People v. Robinson (2007) 151 Cal.App.4th 606, 618.) This argument ignores, however, the fact that this court determined after the trial that Gralla was competent and was not entitled to a new trial. Gralla cannot collaterally attack our decision in Gralla I by appealing from a post-judgment sentencing order.
C. Gralla’s Competence at the Re-Sentencing Hearing
As noted above, Gralla may properly appeal the May 2008 order on the ground that there was a reasonable doubt about his competence at the sentencing hearing. However, Gralla has failed to substantiate this claim.
Gralla identifies five categories of evidence that allegedly created a reasonable doubt about his competence at the sentencing hearing: (1) a history of mental illness and hospitalization; (2) the allegedly bizarre facts of the offense; (3) a history of suicide attempts; (4) psychotic symptoms allegedly apparent to the trial court; and (5) a history of treatment with anti-psychotic and anti-depressant medications. To a large extent, the evidence upon which Gralla relies was addressed by us in Gralla I and is simply re-packaged for us here. However, Gralla also relies on additional evidence regarding his past history of mental illness and treatment which was first presented in connection with the motion for new trial that he filed after our remand in Gralla I.
We are troubled that the majority of the evidence upon which Gralla relies is the very same evidence that was presented to us in Gralla I. Apparently, the argument for presenting this evidence to us again is that it takes on a new import when considered along with the additional evidence that appellate counsel uncovered after our remand in Gralla I. Although such an approach may be sound, Gralla abuses this opportunity to the extent that he uses this forum to attempt to correct logical or legal flaws in his analysis of evidence that was presented to us in Gralla I.
In Gralla I, Gralla identified four circumstances to support his claim that he may not have been competent to stand trial in 2005: (1) the “unusual” or “bizarre” facts of the offense; (2) psychotic symptoms that were allegedly apparent to the trial court; (3) a documented history of mental illness; and (4) evidence of drug use, both illegal and prescribed. In the present appeal, Gralla has divided category (3) into two separate categories, one of which relates to suicide attempts when Gralla was a teenager. Gralla has also refined his former category (4) to focus exclusively on mental health treatment with prescription medications that may affect cognition.
In any event, Gralla simply ignores our substantive conclusion in Gralla I, which was that none of the circumstances upon which he relied, either individually or when considered as a whole, raised any question or doubt about Gralla’s present ability to understand the proceedings in the trial court or to assist in his own defense. That conclusion necessarily applies here as well. Since the evidence presented to us in Gralla I did not raise a reasonable doubt about Gralla’s mental state at the time of the 2005 trial, that same evidence cannot raise a doubt about his competence a few years later at the re-sentencing hearing.
Thus, we are left with Gralla’s so-called new evidence, which was presented to the sentencing court in connection with Gralla’s motion for new trial. This evidence also pertains exclusively to Gralla’s past history of mental illness and treatment. Gralla does not identify any occurrence that happened or circumstance that arose after this case was remanded for re-sentencing that may have raised any doubt about his mental competence at that time. In this regard, we note that the privately-retained attorney who represented Gralla after our remand in Gralla I never voiced any concern about Gralla’s present mental state. Indeed, no attorney or judge who directly participated in any lower court proceeding relating to this case has ever expressed such a concern.
Gralla expressly concedes that “there was no indication during the trial or sentencing proceedings that appellant was not competent.” Nevertheless, he insists that a reasonable doubt about a defendant’s competence can be based entirely on evidence of prior irrational behavior and mental illness in spite of the fact that there are no indications that he is mentally ill during the relevant proceeding. To support this proposition, Gralla relies on Pate v. Robinson (1966) 383 U.S. 375 (Pate).
In Pate, Robinson was charged with murdering his common law wife. At trial, the defense conceded that Robinson shot and killed the victim but maintained that he was insane, both when he committed the offense and at the time of trial. (Pate, supra, 383 U.S. at p. 376.) In this regard, the “uncontradicted testimony” of four witnesses established that Robinson had a long history of “disturbed behavior” and severe mental illness, that his irrational episodes became more serious with time, that the shooting of his common law wife at her place of work in front of numerous witnesses was part of a continuous course of irrational episodes, and that Robinson was still insane at the time of trial. (Id. at pp. 378-384.)
Robinson’s murder convictions were affirmed by the Illinois Supreme Court, who found, among other things, that the evidence did not raise a sufficient doubt about his competence to require the trial court to conduct a hearing on its own motion. (Pate, supra, 383 U.S. at p. 376-377.) The case reached the United States Supreme Court via a petition for writ of habeas corpus. The Pate court held that Robinson was constitutionally entitled to a hearing on his competence and that, because a meaningful hearing could not be held at that late date, the murder conviction had to be reversed. (Id. at p. 377.)
The Pate court found, among other things, that defense counsel had placed in issue the question of Robinson’s competence to stand trial by repeatedly raising the question whether Robinson was presently insane. (Pate, supra, 383 U.S. at p. 384 & fn. 6.) The court also observed that the prosecutor acknowledged there was a question as to Robinson’s mental competence by making an offer of proof that a doctor who examined Robinson a few months before trial thought he was presently competent. The Pate court also rejected the state court’s conclusion that evidence of “colloquies” between Robinson and the trial judge established that Robinson was mentally alert and understood the proceedings and that a competency hearing was unnecessary. According to the Pate court, such “reasoning offers no justification for ignoring the uncontradicted testimony of Robinson’s history of pronounced irrational behavior.” (Id. at pp. 385-386.)
Gralla contends that Pate illustrates that evidence of a history of irrational behavior and/or mental illness is so probative of present incompetency that it actually overrides evidence that the defendant appeared to understand and participate in the proceeding. This is a serious misinterpretation of Pate.
Robinson’s mental health “history” constituted evidence that his mental illness was chronic and ongoing, i.e., that he was presently incompetent. Robinson had engaged in a continuous course of irrational conduct that became more serious with time, and thus the incident giving rise to the present murder charge was another example of his ongoing insanity and his present incompetence. Furthermore, contrary to Gralla’s contention on appeal, Robinson’s “history” of chronic serious mental illness was not the only circumstance which gave rise to the reasonable doubt about his present competency. Beyond that, (1) defense counsel consistently expressed concern about Robinson’s present competence throughout the proceeding, (2) the prosecutor acknowledged that competence was an issue, and (3) four witnesses testified at trial that the defendant was presently insane. It was the totality of these circumstances which led the Pate court to find there was substantial evidence raising a reasonable doubt about Robinson’s competence to stand trial. Furthermore, because of this very substantial evidence, the fact that Robinson was able to engage in coherent dialogue with the trial court was not dispositive. (Pate, supra, 383 U.S. at pp. 384-386.)
The evidence showed that Robinson suffered a serious head injury as a child after which he attempted suicide on more than one occasion, was hospitalized for mental illness, heard voices and hallucinated. Robinson’s irrational episodes became more serious over time. In 1953, he shot and killed his 18-month-old son and attempted suicide by shooting himself in the head. A few months after serving a four year prison term for these offenses, Robinson began living with the victim. During the next few years, Robinson’s mother filed several complaints with the police, seeking to have him “put away” because of his “disturbed mind.” Her final complaint was made about a month before Robinson killed the victim at the restaurant where she worked, in front of several witnesses. (Pate, supra, 383 U.S. at pp. 379-382.)
In the present case, in contrast to Pate, no attorney or trial judge involved in the lower court proceedings has ever expressed any concern about Gralla’s present mental competence. Nor has any witness, expert or otherwise, ever appeared at any proceeding in this case and expressed the opinion that Gralla might not be competent to participate in that proceeding. Remarkably, this is so notwithstanding appellate counsel’s repeated efforts to put Gralla’s present competence at issue. Under these circumstances, evidence of Gralla’s history of mental health problems and treatment, which has no direct connection to the present sentencing proceeding, simply is not sufficient to create a doubt about Gralla’s competence at the re-sentencing hearing.
In his reply brief, Gralla acknowledges that there are several California Supreme Court cases “which have implied that evidence of incompetence is not substantial unless it shows directly that the defendant is unable to understand the proceedings or to assist his counsel.” (Citing People v. Young, supra, 34 Cal.4th at p. 1218; People v. Ramos (2004) 34 Cal.4th 494, 507-508; People v. Welch, supra, 20 Cal.4th at p. 742; People v. Deere, supra, 41 Cal.3d at p. 358; People v. Laudermilk (1967) 67 Cal.2d 272, 285.)
Gralla attempts to distinguish these cases on the ground that they did not involve a defendant who suffered a “fairly strong” mental abnormality. Gralla would have us fashion a new rule for the latter circumstance, and hold that, in cases where the evidence shows that the defendant has a history of serious mental health problems and treatment, “no evidence directly relating those factors to the defendant’s present mental condition or ability to assist counsel is required, but a doubt about his ability to understand the proceedings and to assist counsel can be inferred.”
Putting aside our disagreement with Gralla’s characterization of his alleged mental abnormality as “fairly strong,” we decline the invitation to make new law. The new rule Gralla proposes is not only unsupported by any relevant authority, it directly conflicts with the binding authority referenced above which establishes that a competency hearing is required only when the court is presented with substantial evidence of present incompetence.
IV. THE HABEAS PETITION
Gralla’s confusing and poorly organized writ petition seeks relief on two grounds, i.e., that (1) new evidence, attached to the petition as Exhibit A, constitutes substantial evidence that there was a reasonable doubt about his competence “to stand trial” and (2) he was denied the effective assistance of counsel because the attorney who represented him after this case was remanded failed to present Exhibit A to the court at the resentencing proceeding.
According to a declaration by appellate counsel, Exhibit A consists of copies of Gralla’s medical records from the Mendocino County jail that were generated between August 2007 and June 2008, the period during which the motion for new trial was heard and the re-sentencing proceeding was conducted. Appellate counsel concedes that these records are not complete, explaining that he elected to exclude records which “had to do exclusively with medical, as opposed to mental-health problems....” Gralla contends that the attorney who represented him at the May 2008 re-sentencing hearing was aware of these records but did not present them to the court or request a competency hearing.
In Gralla I, this appellate counsel attached a similar Exhibit A to Gralla’s writ petition. In that case, the documents were represented to be jail medical records for the period that Gralla was awaiting trial and his first sentence. As we did in Gralla I, we again note for the record our concerns that Exhibit A is incomplete and contains handwritten notes that are difficult to decipher.
A. Competence to Stand Trial
Relying on federal procedural law, Gralla contends that he may use the habeas proceeding “at any time” to present new evidence that he was incompetent at trial “and the court should then hold an evidentiary hearing to determine if he was competent at the time of the trial court proceedings.” (Citing Deere v. Woodford (9th Cir. 2003) 339 F.3d 1084, 1086.) Even if we apply this rule here, Gralla has not presented any new evidence that he was incompetent at trial.
State procedural law establishes that when, as here, a writ of habeas corpus has once been denied, a new application based on the same ground will be denied unless there has been a change in the facts or law. (In re Swain (1949) 34 Cal.2d 300.)
Assuming Exhibit A is what Gralla says it is (records for medical treatment during the period from August 2007 to June 2008), evidence of such treatment simply is not relevant to the question whether Gralla was competent at the time of his 2005 trial. Gralla does not actually argue otherwise. However, he does expressly request that we reverse the judgment and grant him a new trial. Further, throughout his lengthy narrative, Gralla often refers to the trial and the post-remand sentencing proceeding as if they were a single event. Therefore, we find it necessary to expressly summarily deny any portion of this petition which seeks reversal of the judgment of guilt.
B. Competence at the Re-Sentencing Proceeding
Gralla contends that Exhibit A establishes that there was a reasonable doubt about his competence during the re-sentencing proceeding because it shows that, while he was in jail waiting re-sentencing, he complained to doctors about auditory hallucinations and he requested and was given medication, including Seroquel and Clozaril. Referencing an Internet source of unknown reliability, Gralla characterizes these medications as “antipsychotic[s], used for treatment of schizophrenia,” and contends they may cause side effects that may impair cognition.
First, Exhibit A does not establish that Gralla actually experienced auditory hallucinations that may have affected his ability to understand or participate in the remanded proceeding. The references to such hallucinations are so vague and difficult to decipher that they cannot reasonably be construed as anything close to a diagnosis. Rather, the documents appear to reflect no more than that Gralla reported that he suffered from such an affliction. Notations of this symptom were made at various places in the records as part of the explanation for the decision to continue to prescribe medication that Gralla had been using before he was transferred to the jail and that he wanted to continue to take.
Second, as we explained when we denied Gralla’s similar petition in Gralla I, Gralla’s contention that his medication can have side affects that might interfere with a defendant’s ability to understand and participate in the proceeding is speculation not evidence. Attempting to reinforce an argument we already rejected in Gralla I, appellate counsel now contends that “the mere fact” that Gralla was taking these medications establishes a reasonable doubt as to his competency. To support this claim, Gralla directs our attention to Moran v. Godinez (9th Cir. 1994) 57 F.3d 690 (Moran).
In Moran, the defendant was in the hospital recovering from a suicide attempt when he summoned police and confessed to the murder of his wife and two other people. (Moran, supra, 57 F.3d at p. 694.) Three months later, the defendant appeared in a Nevada trial court, and “said he wanted to discharge his attorneys and plead guilty to prevent the presentation of mitigating evidence on his behalf.” (Ibid.) Before accepting the waiver of counsel and guilty plea, the trial court interrogated the defendant. At one point, the court asked whether the defendant was under the influence of drugs or alcohol. The defendant responded that he was taking “just what they give me in, you know, medications.” (Ibid.) The trial court did not ask any questions about that medication but simply moved on to other issues and then accepted the defendant’s guilty plea.
The Moran court found that the defendant’s procedural due process rights were violated because a reasonable jurist should have entertained a good faith doubt about the defendant’s competency at the change of plea hearing. (Moran, supra, 57 F.3d at p. 695.) The court reasoned that, at the time of that hearing, the trial judge knew that the defendant had attempted suicide three months earlier, and that he wanted to fire his attorneys, to plead guilty to three murders and to die. Furthermore, although the trial court declined to inquire about the nature of the defendant’s medications, undisputed evidence in the record established that he was taking Inderal, Dilantin, Phenobarbital, and Vistaril at the time he entered is plea. The appellate record also contained evidence regarding the purpose and function of these medications. (Id. at p. 695.) The Moran court found that these circumstances established a reasonable doubt about the defendant’s competence and should have led the trial court to conduct a competency hearing. The court also found, however, that a post-conviction retrospective competency hearing cured the error and established that the defendant was competent at the plea hearing. (Id. at p. 696.)
Gralla contends that Moran establishes that “[t]he mere fact that a criminal defendant is receiving drugs with possible side effects that may impair his cognition is a reason to doubt that he may be mentally competent.” If by the term “reason to doubt” Gralla means “reasonable doubt,” he is mistaken. Moran does not hold nor intimate in any way that a medicated defendant is automatically entitled to a competency hearing. If, by using the term “reason to doubt,” Gralla is simply suggesting that evidence a defendant is on medication that might affect cognition is relevant to the issue of competency, we do not disagree. We note, however, that the record before us, including Exhibit A, does not contain any actual evidence regarding the potential side effects of the medication that Gralla took. Even if it did, such evidence, standing by itself, would not be sufficient to raise a reasonable doubt about Gralla’s competency at the time he was re-sentenced.
As noted during our discussion of the issues on appeal, Gralla concedes that nothing happened during the course of the post-remand proceeding which raised any doubt in anyone’s mind about Gralla’s competence at that time. Gralla fails to identify anything in Exhibit A which raises any concern about his ability to understand or participate in the post-remand proceeding. Although much of this documentation is difficult to read and follow, as best we can determine, no doctor ever expressed any such concern or any doubt whatsoever about Gralla’s mental well being or cognitive function.
C. Assistance of Counsel
Gralla contends he was denied the effective assistance of counsel at the re-sentencing hearing. To prove this claim, Gralla has the burden of establishing that defense counsel’s performance was deficient and that Gralla was actually prejudiced by that deficient performance. (People v. Garrison (1989) 47 Cal.3d 746, 788.)
Gralla contends that a reasonably competent attorney would have presented Exhibit A to the sentencing court and requested a competency hearing because “the fact that petitioner was taking powerful psychotropic medication would have raised a doubt [about his competence] and required a hearing.”
As we have already explained, “the fact” that Gralla was on medication did not automatically entitle him to a hearing. Furthermore, to the extent evidence that Gralla was taking medication was relevant to the question of his competence, there could have been any number of sound reasons for counsel’s decision not to present that evidence to the sentencing court. The most obvious explanation is that defense counsel’s personal interactions with the defendant convinced counsel that Gralla’s cognitive functions were not affected by his medication, that Gralla understood the proceedings and that he was capable of assisting counsel to the extent required by the limited remand instructions.
In any event, as we have already explained, Gralla’s new evidence does not establish that there was a reasonable doubt about his competence during the re-sentencing hearing. Therefore, Gralla cannot carry his burden of proving prejudice.
V. DISPOSITION
The part of this appeal that seeks a reversal of the 2005 judgment is dismissed. The petition for writ of habeas corpus is denied and the May 2008 sentencing order is affirmed.
We concur: Kline, P.J., Richman, J.