Mike Hernandez v. Eddie S. Ylst, Warden, 930 F.2d 714 (9th Cir. 1991). · Go Syfert
Mike Hernandez v. Eddie S. Ylst, Warden, 930 F.2d 714 (9th Cir. 1991). Cases Citing This Book View Copy Cite
229 citation events (136 in the last 25 years) across 30 distinct courts.
Strongest positive: United States v. Mass-Soto (ca9, 2026-04-09) · Strongest negative: Jackson v. The State of New York (nyed, 2023-04-28)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Jackson v. The State of New York
E.D.N.Y · 2023 · signal: but cf. · quote attribution · 1 verbatim quote · confidence high
we are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law.
discussed Cited as authority (verbatim quote) United States v. Mass-Soto
9th Cir. · 2026 · signal: see · quote attribution · 1 verbatim quote · confidence high
defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings.
discussed Cited as authority (verbatim quote) Thomas v. Pollard
S.D. Cal. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
federal courts sitting in habeas can and will review an application of state law 12 for alleged constitutional violations.
discussed Cited as authority (verbatim quote) (DP) Weaver v. Chappell (2×) also: Cited as authority (rule)
E.D. Cal. · 2021 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
we deem significant the fact that the trial judge, government counsel, and the 17 petitioner's own attorney did not perceive a reasonable cause to believe the petitioner was 18 incompetent.
discussed Cited as authority (verbatim quote) Samayoa v. Ayers
S.D. Cal. · 2009 · signal: see · quote attribution · 1 verbatim quote · confidence high
we deem significant the fact that the trial judge, government counsel, and hernandez's own attorney did not perceive a reasonable cause to believe hernandez was incompetent.
examined Cited as authority (verbatim quote) United States v. Fields (3×) also: Cited as authority (rule), Cited "see"
9th Cir. · 2002 · signal: see · quote attribution · 1 verbatim quote · confidence high
there is no indication here that hernandez could not understand the proceedings against him
discussed Cited as authority (verbatim quote) Johnson v. Keane (2×) also: Cited as authority (rule)
S.D.N.Y. · 1997 · quote attribution · 1 verbatim quote · confidence high
while the opinion of defendant's counsel certainly is not determinative, a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings.
discussed Cited as authority (verbatim quote) Anderson v. Champion
10th Cir. · 1997 · signal: see also · quote attribution · 1 verbatim quote · confidence high
we are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law.
discussed Cited as authority (verbatim quote) Charles M. Yarton v. United States (2×) also: Cited as authority (rule)
9th Cir. · 1996 · quote attribution · 1 verbatim quote · confidence high
while the opinion of petitioner's counsel certainly is not determinative, a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings.
examined Cited as authority (verbatim quote) Allen R. Turk v. Alameda County Robert G. Borg, Warden, California, Folsom State Prison (4×) also: Cited as authority (rule), Cited "see"
9th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence high
while the opinion of defendant's counsel certainly is not determinative, a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings.
discussed Cited as authority (rule) Rodney Beeler v. Ron Broomfield
9th Cir. · 2026 · confidence medium
The evidence may include the observations of trial counsel, Medina, 505 U.S. at 450, but counsel’s opinion “certainly is not determinative,” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991); see also Michaels, 51 F.4th at 943 (explaining that, “[g]iven the generality and flexibility of the competency inquiry,” state courts have even more leeway under AEDPA in reaching a reasonable decision).
discussed Cited as authority (rule) Rivera v. Superior Court of Napa County
N.D. Cal. · 2025 · confidence medium
As the Ninth Circuit has observed, “[w]e are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law.” Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991).
discussed Cited as authority (rule) Binion v. United States
D.C. · 2024 · confidence medium
Even if the trial court overstated the value of counsel’s views, this and other courts have held that, while not “determinative, a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991); accord Blakeney v. United States, 77 A.3d 328, 342, 374 (D.C. 2013) (noting that trial counsel has an “important role[ ] to play in ensuring that only competent defendants are tried” and that “trial counsel’s actual experience working closely with [defendant] on his defense belied the conclusio…
discussed Cited as authority (rule) State v. Zeigler
Ohio Ct. App. · 2024 · confidence medium
Defense counsel “‘“is in the best position to evaluate a client's comprehension of the proceedings.”’” State v. Lawson, 2021-Ohio- 6 Case No. 2024-T-0005 3566, ¶ 64, quoting Stanley v. Cullen, 633 F.3d 852, 861 (9th Cir. 2011), quoting Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991). {¶23} Accordingly, Appellant has not demonstrated that the trial court committed plain error in finding him competent to stand trial despite his intellectual disability. {¶24} Appellant’s assignment of error is without merit. {¶25} The judgment of the Trumbull County Court of Common Pleas is…
discussed Cited as authority (rule) Richter v. Shinn
D. Ariz. · 2024 · confidence medium
Furthermore, “a defendant’s counsel is in the best position to evaluate a client’s 28 comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) - 32 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 33 of 75 1 (citations omitted).
discussed Cited as authority (rule) Johnstone v. Nevada Territorial Local Jurisdiction of Public Offense
D. Nev. · 2024 · confidence medium
Roche v. Scully, 739 F.2d 739 , 741–42 (2d Cir. 1984) (“[N]o 14 federal court to our knowledge has ever granted a writ where a state court’s 15 asserted lack of jurisdiction resulted solely from the provisions of state law.”); 16 Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (“Determination of whether 17 a state court is vested with jurisdiction under state law is a function of the state 18 courts, not the federal judiciary”); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 19 1991) (noting, without deciding, that it was “not persuaded that a constitutional 20 violation nec…
discussed Cited as authority (rule) State v. Hough
Ohio · 2022 · confidence medium
But again, the lead opinion’s conclusion is inconsistent with caselaw and fails to complete the required analysis. {¶ 72} This court has stated that “ ‘defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.’ ” State v. Lawson, 165 Ohio St.3d 445 , 2021-Ohio-3566 , 179 N.E.3d 1216, ¶ 64 , quoting Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991).
discussed Cited as authority (rule) State v. Garber
Ohio Ct. App. · 2022 · confidence medium
Courts recognize that defense counsel “‘is in the best position to evaluate a client’s comprehension of the proceedings.’” Lawson at ¶ 64, quoting Stanley v. Cullen, 633 F.3d 852, 861 (9th Cir.2011), quoting Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991). {¶ 13} Here, counsel met with Garber and evaluated his ability to comprehend the proceedings, and he determined that Garber was able to render a knowing, intelligent, and voluntary plea.
discussed Cited as authority (rule) Scott v. Bonta
S.D. Cal. · 2022 · confidence medium
FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 22 Additionally, Petitioner has failed to allege that his state court conviction or sentence 23 violates federal law as required by Rule 4 of the rules governing 28 U.S.C. § 2254 cases. 24 Title 28, United States Code, § 2254 (a), sets forth the following scope of review for federal 25 habeas corpus claims: 26 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person 27 in custody pursuant to the judgment of a State court only on the ground that 28 1 h…
discussed Cited as authority (rule) Lewis v. Unknown
S.D. Cal. · 2022 · confidence medium
“In conducting habeas review, a federal court is limited to deciding whether a 6 conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68; 7 see also 28 U.S.C.A. § 2254 (a); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) (a 8 petitioner must allege that the state court violated his or her federal constitutional 9 rights for a claim to be cognizable on federal habeas corpus review). 10 To the extent that Petitioner contends that the trial court’s alleged failure to 11 properly instruct the jury on how it may consider voluntary intoxication in decidin…
discussed Cited as authority (rule) Riley v. Plaintiff's or D.A.
S.D. Cal. · 2021 · confidence medium
Brittingham v. United States, 982 27 F.2d 378 , 379 (9th Cir. 1992) (per curiam). 28 / / / 1 FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. 5 Title 28, United States Code, § 2254 (a), sets forth the following scope of review for 6 federal habeas corpus claims: 7 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corp…
discussed Cited as authority (rule) State v. Lawson (Slip Opinion)
Ohio · 2021 · confidence medium
“Trial counsel’s assurances to the court are relevant because ‘a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.’ ” Stanley v. Cullen, 633 F.3d 852, 861 (9th Cir.2011), quoting Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991).
cited Cited as authority (rule) Pitt v. Clark
E.D. Va. · 2021 · confidence medium
In Hernandez v. YIst, 930 F.2d 714, 718 (9th Cir. 1991), the court placed great emphasis on the fact that counsel concluded that the prisoner was competent.
discussed Cited as authority (rule) Ortega v. Shinn
D. Ariz. · 2021 · confidence medium
Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) 26 (“We are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law.”).
discussed Cited as authority (rule) Goad v. State (2×)
Nev. · 2021 · confidence medium
See United States v. Brugnara, 856 F.3d 1198, 1215 (9th Cir. 2017) ("Such reasonable [doubt] exists when there is substantial evidence in the record . . . ." (internal quotations omitted)); Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991) (finding that a court's pretrial determination of doubt properly excluded a psychological report that was not in the record at the time the determination was made); United States v. Veatch, 674 F.2d 1217, 1223 (9th Cir. 1981) (stating that the court reviewed "the entire record that was before the district court" to determine whether reasonable doubt exist…
discussed Cited as authority (rule) GOAD (RALPH) VS. STATE (2×)
Nev. · 2021 · confidence medium
See United States v. Brugnara, 856 F.3d 1198, 1215 (9th Cir. 2017) ("Such reasonable [doubt] exists when there is substantial evidence in the record . . . ." (internal quotations omitted)); Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991) (finding that a court's pretrial determination of doubt properly excluded a psychological report that was not in the record at the time the determination was made); United States v. Veatch, 674 F.2d 1217, 1223 (9th Cir. 1981) (stating that the court reviewed "the entire record that was before the district court" to determine whether reasonable doubt exist…
discussed Cited as authority (rule) Hyde v. Key
E.D. Wash. · 2021 · confidence medium
“If 21 a state trial court does not employ procedures designed to protect against the trial 1 of an incompetent, the resultant conviction must be reversed.” Hernandez v. Ylst, 2 930 F.2d 714, 716 (9th Cir. 1991) (citing Pate, 383 U.S. at 386–87). 3 The relevant facts, as stated by the state appeals court, are as follows: 4 On January 18, 2006, defense counsel, Paul Wasson, presented a proposed agreed order for an examination of Mr. Hyde at Eastern State Hospital 5 (ESH).
discussed Cited as authority (rule) Fritz v. Gore
S.D. Cal. · 2021 · confidence medium
FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM UNDER § 2254 21 Petitioner has failed to allege that his state court conviction or sentence violates the 22 Constitution of the United States, as required by Rule 4 of the rules governing § 2254 cases. 23 Section 2254(a) sets forth the following scope of review for federal habeas corpus claims: 24 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 25 entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 26 is in custody…
discussed Cited as authority (rule) Anthony Jones v. Kern Valley State Prison
9th Cir. · 2020 · confidence medium
Under AEDPA’s standard of review, we also cannot conclude that “a reasonable judge . . . should have experienced doubt with respect to competency to stand trial.” Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir. 1991) (alteration in original) (emphasis added) (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) (en banc)).
discussed Cited as authority (rule) (HC) Peacock v. Martinez
E.D. Cal. · 2020 · confidence medium
However, “federal courts are extraordinarily chary of entertaining habeas corpus 18 violations premised upon asserted deviations from state procedural rules.” Hernandez v. Ylst, 19 930 F.2d 714, 719 (9th Cir. 1991). 20 Here, as evidenced by the sentencing proceedings excerpted above, there was nothing 21 arbitrary or capricious about the sentence imposed on petitioner so as to constitute an independent 22 due process violation.
discussed Cited as authority (rule) United States v. Brian Caputo
9th Cir. · 2019 · confidence medium
At the detention hearing, counsel stated, “having talked to Mr. Caputo and his mother and some of his family members, he 2 knows what is going on . . . he knows, he understands what is going on.” At the sentencing, counsel stated that, “in terms of [Caputo’s] ability to understand the proceedings, he was able to go through the Presentence Report with [counsel], he asked appropriate questions, and appeared to understand [counsel’s] answers.” This is telling because “a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.” Hernan…
discussed Cited as authority (rule) Stamps v. Miller
10th Cir. · 2019 · confidence medium
This determination of jurisdiction is binding on this [federal] court.”); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991) (“We are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law.”).
discussed Cited as authority (rule) Rinke v. State
Idaho Ct. App. · 2018 · confidence medium
“While the opinion of . . . counsel certainly is not determinative, a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir. 1991).
cited Cited as authority (rule) Basham v. United States
D.S.C. · 2013 · confidence medium
Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991) (trial counsel in best position to evaluate client’s comprehension of the proceedings).
discussed Cited as authority (rule) United States v. Faye Shilling
9th Cir. · 2012 · confidence medium
“Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent proceedings attacking the plea,” United States v. Ross, 511 F.3d 1233, 1236 (9th Cir.2008), and “[tjrial counsel’s assurances to the court are relevant because ‘a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.’ ” Stanley v. Cullen, 633 F.3d 852, 861 (9th Cir.2011) (quoting Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991)). 1 The district court also did not clearly err in calculating the amount of loss from t…
discussed Cited as authority (rule) State v. Hanson
Idaho · 2012 · confidence medium
The opinion of the defendant’s attorney “certainly is not determinative,” but the attorney “is in the best position to evaluate a client’s comprehension of the proceedings.” Dunlap, 141 Idaho at 59 , 106 P.3d at 385 (citing Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991)). 7 However, “[t]he mere fact that [a defendant] did not heed his counsel’s advice and was uncooperative or that his conduct on the stand would have more likely hurt than help his case, does not render him incompetent to stand trial.” State v. Longoria, 133 Idaho 819, 823 , 992 P.2d 1219 , 1223 *326 (Ct.A…
discussed Cited as authority (rule) Stanley v. Cullen
9th Cir. · 2011 · confidence medium
Trial counsel’s assurances to the court are relevant because “a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991); see also Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir.2001) (“We do not dismiss lightly the fact that no one questioned Odle’s competence over the course of two years of pre-trial proceedings and twenty-eight days of trial.”); United States v. Clark, 617 F.2d 180 , 186 n. 11 (9th Cir.1980) (“The fact that [the defendant’s] attorney apparently considered him…
cited Cited as authority (rule) Deere v. Cullen
C.D. Cal. · 2010 · confidence medium
P1-A), and “the opinion of [defense] counsel certainly is not determinative.” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991).
discussed Cited as authority (rule) Love v. Scribner
S.D. Cal. · 2010 · confidence medium
AEDPA sets forth the scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C.A. § 2254 (a) (West 2006); see also Reed v. Farley, 512 U.S. 339, 347 , 114 S.Ct. 2291 , 129 L.Ed.2d 277 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991).
cited Cited as authority (rule) Grant v. Brown
9th Cir. · 2009 · confidence medium
Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir.1991).
cited Cited as authority (rule) Grant v. Brown
9th Cir. · 2009 · confidence medium
Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir.1991).
discussed Cited as authority (rule) Tate v. True
4th Cir. · 2008 · confidence medium
Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.l991)(“While the opinion of Hernandez’s counsel certainly is not determinative, a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings”); United States v. Clark, 617 F.2d 180, 186 (9th Cir.l980)(fact that defendant’s attorney considered defendant competent to stand trial was significant evidence that defendant was competent).
cited Cited as authority (rule) Trevino v. Evans
S.D. Cal. · 2007 · confidence medium
See Reed v. Farley, 512 U.S. 339, 347 , 114 S.Ct. 2291 , 129 L.Ed.2d 277 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Fuentes
9th Cir. · 2006 · confidence medium
Moore’s attorneys were in an excellent position to assess his competency, 3 and their observations should have been seriously considered and even accorded “substantial weight.” See Medina v. California, 505 U.S. 437, 450 , 112 S.Ct. 2572, 2580 , 120 L.Ed.2d 353 (1992); Drope v. Missouri, 420 U.S. 162 , 177 n. 13, 95 S.Ct. 896 , 906 n. 13, 43 L.Ed.2d 103 (1975); Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001); Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Flores-Flores
9th Cir. · 2006 · confidence medium
See 18 U.S.C. § 4241 (a); United States v. Fernandez, 388 F.3d 1199, 1251 (9th Cir.2004), amended by 425 F.3d 1248 (9th Cir.), cert. denied, 544 U.S. 1043 , 125 S.Ct. 2286 , 161 L.Ed.2d 1077 (2005); see also United States v. Lewis, 991 F.2d 524, 527-28 (9th Cir.1993); Hernandez v. Ylst, 930 F.2d 714, 716-18 (9th Cir.1991). (2) Flores next argues that he should have been allowed to withdraw his guilty plea because there was a fair and just reason for doing so.
discussed Cited as authority (rule) Dunlap v. State
Idaho · 2004 · confidence medium
“While the opinion of ... counsel certainly is not determinative, a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991).
discussed Cited as authority (rule) Stanley Williams v. Jeanne S. Woodford, Warden, California State Prison, San Quentin (2×) also: Cited "see, e.g."
9th Cir. · 2004 · confidence medium
See Medina, 505 U.S. at 450 , 112 S.Ct. 2572 (“defense counsel will often have the best-informed view of the defendant’s ability to participate in his defense”); Hernandez, 930 F.2d at 718 (the fact that defense counsel considered the defendant competent to stand trial was significant evidence that the defendant was competent).
discussed Cited as authority (rule) Pierce v. Cambra
9th Cir. · 2003 · confidence medium
See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir.1997); Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir.1997); United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993); Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir.1991).
cited Cited as authority (rule) Dustin v. Ramirez-Palmer
9th Cir. · 2003 · confidence medium
See Sandgathe v. Maass, 314 F.3d 371, 379 (9th Cir.2002); Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991).
discussed Cited as authority (rule) Stanley Williams v. Jeanne Woodford, Warden, California State Prison, San Quentin (2×) also: Cited "see, e.g."
9th Cir. · 2002 · confidence medium
See Medina, 505 U.S. at 450 , 112 S.Ct. 2572 (“defense counsel will often have the best-informed view of the defendant’s ability to participate in his defense”); Hernandez, 930 F.2d at 718 (the fact that defense counsel considered the defendant competent-to stand trial was significant evidence that the defendant was competent).
Retrieving the full opinion text from the archive…
Mike HERNANDEZ, Petitioner-Appellant,
v.
Eddie S. YLST, Warden, Et Al., Respondent-Appellee
88-6459.
Court of Appeals for the Ninth Circuit.
Apr 10, 1991.
930 F.2d 714
91 Cal. Daily Op. Serv. 2518
1991 U.S. App. LEXIS 5722
1991 WL 47542
Eric S. Multhaup, San Francisco, Cal., for petitioner-appellant., Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.
Wallace, O'Scannlain, Rymer.
Cited by 168 opinions  |  Published
Pinpoint authority: bottom 54%
O’SCANNLAIN, Circuit Judge:

We must determine whether a habeas petitioner’s federal constitutional rights were violated by a state court’s failure to hold a pre-trial competency hearing.

I

Petitioner Mike Hernandez was arrested following the shooting death on January 16, 1982, of a man who, at least in Hernandez’s mind, was having an affair with Hernandez’s wife. The evidence tying Hernandez to the killing was substantial. Witnesses observed Hernandez’s vehicle at the scene of the shooting, which was identified by the license plate number. The murder weapon was discovered on the very day of the slaying, buried on Hernandez’s in-laws’ property. Hernandez’s alibi was implausible.

At the request of Hernandez’s counsel, a hearing was scheduled for April 27, 1982, to determine Hernandez’s competency to stand trial. On the appointed day, however, Hernandez’s trial counsel declared that he did not believe a finding of incompetency was warranted. Thus, no incompetency hearing was held. Instead, Hernandez moved for a transfer from the San Luis Obispo County Jail, in which he had been incarcerated since his arrest, to the Santa Barbara County Jail. In support of the motion, Hernandez personally described for the court the reasons behind his request. Hernandez’s statement was comprised of (in the words of the California Court of Appeal) “bizarre statements of mistreatment in the jail,” including allegations of forced drug injections by jailers and sexual assaults by fellow prisoners. [1]

On April 28, the following day, Hernandez appeared before the court for his pretrial hearing. At that time, the trial court denied the motion for jail transfer. The case proceeded to trial, commencing on May 4, 1982.

In the midst of his jury trial, Hernandez withdrew his plea of “not guilty” and entered a plea of “not guilty by reason of insanity.” The trial court postponed proceedings in the trial so three mental health experts could examine Hernandez and report their opinions concerning his sanity at the time of the offense.

By agreement of the parties, the sanity issue was submitted directly to the trial court on May 17, 1982. The jury was excused. The court considered the written reports of the three appointed experts, plus the written report of Dr. Lawrence Ratner, who examined Hernandez before the trial for defense counsel, plus the transcript of the April 27 hearing. The court found Hernandez sane and convicted him on one count of second degree murder. The petitioner was sentenced to fifteen years to life[*716] (with a two-year enhancement for use of a weapon) on June 14, 1982. The state appellate court affirmed the conviction on November 17, 1983.

In late 1985, Hernandez filed a petition for writ of habeas corpus with the California Supreme Court. The petition was denied summarily. Hernandez followed with a habeas petition in federal district court, which was dismissed for failure to exhaust state remedies. A subsequent (and second) state habeas petition filed with California’s highest court was also denied summarily.

The present section 2254 habeas petition was filed January 12, 1988. The petition asserted that the trial court had violated Hernandez’s right to due process by failing to institute proceedings to determine Hernandez’s competence to stand trial, and by permitting statements taken in violation of Miranda to be used against him. A magistrate issued an order to show cause, and later filed a report and recommendation without the benefit of an evidentiary hearing. The magistrate concluded that Hernandez was not entitled to the writ because (1) his Miranda claim was precluded by his plea of “not guilty by reason of insanity,” and (2) his competency claim was not borne out by the evidence.

The district court adopted the magistrate’s report and dismissed the petition on August 29, 1988. Hernandez appeals, focusing exclusively on the competency claim. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

II

Hernandez first argues that he presented sufficient evidence of his mental incompetence to entitle him to a pre-trial competency hearing. [2] This evidence consisted chiefly of Hernandez’s delusional statements made to the court to support a motion for jail transfer. The district court ruled that no hearing was necessary at that stage because the state trial court reasonably found that the evidence failed to raise a genuine doubt as to Hernandez’s competence.

The conviction of an accused person while legally incompetent to stand trial is a clear violation of the constitutional guarantee of due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). If a state trial court does not employ procedures designed to protect against the trial of an incompetent, the resultant conviction must be reversed. See id. at 386-87, 86 S.Ct. at 842-43; see also Drope v. Missouri, 420 U.S. 162, 171-72, 95 S.Ct. 896, 903-04, 43 L.Ed.2d 103 (1975). The trial court’s constitutional obligation is discharged by holding a hearing to determine competency. See Pate, 383 U.S. at 387, 86 S.Ct. at 843.

A Pate hearing is not required, however, absent a “substantial” or “bona fide” doubt of competency. See de Kaplany v. Enomoto, 540 F.2d 975, 979-83 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). [3] In determining whether or not there is substantial doubt, “the trial judge must evaluate all the evidence.” Chavez, 656 F.2d at 518. On appeal, we inquire “whether a reasonable judge ... should have experienced doubt with respect to competency to stand trial.” de Kaplany, 540 F.2d at 983; see also Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir.) (Wisdom, J.) (“The test is an objective one.”), cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979); cf. Smith v. Ylst, 826 F.2d 872, 875 (9th Cir.1987) (stating de Kaplany test for question of counsel’s competency), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988).

[*717] The transcript of Hernandez’s statements to the trial court concerning the alleged assaults upon his person is set forth in the margin. [4] This story was evidently delivered with an equanimity which the trial court found inconsistent with incompetency. Hernandez now invites this court to declare such a tale sufficient to raise doubt as to competency as a matter of law.

The invitation is declined. Apart from this tale, Hernandez did not give any indication of mental illness or hallucinations. In United States v. Auen, 846 F.2d 872 (2d Cir.1988), on which Hernandez relies, defendant “consistently exhibited] behavior and beliefs” of an extraordinarily bizarre nature. Id. at 878. While Hernandez’s beliefs were undeniably weird, there was nothing like Auen’s extended time-period[*718] of odd behavior, the defendant’s unwillingness to retain a lawyer or otherwise provide for his own defense, nor the repeated uncooperative conduct toward the proceedings. See id. at 873-76. Unlike the situation in Auen, there is no indication here that Hernandez could not rationally consult with his lawyer or understand the proceedings against him.

Furthermore, in Auen, counsel for the government indicated that defendant was paranoid and held “irrational beliefs.” See id. at 878. Here, Hernandez’s own counsel stated that Hernandez was competent. While the opinion of Hernandez’s counsel certainly is not determinative, a defendant’s counsel is in the best position to evaluate a client’s comprehension of the proceedings. See United States v. Clark, 617 F.2d 180, 186 (9th Cir.1980) (fact that defendant's attorney considered defendant competent to stand trial was significant evidence that defendant was competent). We deem significant the fact that the trial judge, government counsel, and Hernandez’s own attorney did not perceive a reasonable cause to believe Hernandez was incompetent. See United States v. Richardson, 586 F.2d 661, 667 (9th Cir.1978).

Hernandez points to the psychological evaluation report prepared by Dr. Lawrence Ratner at defense counsel’s behest, issued approximately three months prior to trial, as further evidence of incompetency. Dr. Ratner’s report was evidently not filed with the court until after the trial had begun, and thus could not have contributed to any pre-trial determination of doubt. See Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972) (per curiam) (“ ‘[evidence’ encompasses all information properly before the court”). Moreover, Dr. Rat-ner’s opinions were derived solely from two interviews with Hernandez; Dr. Ratner was not provided with records reflecting Hernandez’s past medical or psychological history. See United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986) (psychiatrist’s testimony insufficient to establish bona fide doubt where it was speculative and opinion was reached without benefit of previous medical or psychiatric records), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 cert. denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987). Most significantly, while Dr. Ratner found Hernandez to be delusional and depressed, and that his mental deterioration “would have prevented him from appreciating the criminality of his alleged misconduct,” he offered no opinion as to Hernandez’s competence to stand trial at that time or (obviously) several months later, when the trial was held.

Weighing all of the evidence, we cannot say that it was a constitutional violation not to hold a competency hearing simply because of Hernandez’s odd beliefs regarding his treatment in jail. “[A] defendant’s bizarre actions or statements, or counsel's statement that the defendant is incapable of cooperating in his own defense, or even psychiatric testimony need not alone raise sufficient doubt.” United States v. Ives, 574 F.2d 1002, 1004 (9th Cir.1978) (emphasis in original) (discussing de Kaplany). The trial judge and defense counsel had the opportunity to converse with Hernandez and observe his demeanor, and they concluded that Hernandez’s competence was not in serious doubt. Nothing in the nature of the crime suggested otherwise. See Speedy v. Wyrick, 748 F.2d 481, 486 (8th Cir.1984) (“There was nothing about Speedy’s offense ... to indicate that it was other than a crime of passion.”) (contrasting defendant’s murder of his ex-wife with the facts in Drope, which involved the defendant’s participation in the gang rape of his own wife), cert. denied, 471 U.S. 1019, 105 S.Ct. 2028, 85 L.Ed.2d 308 (1985). The state trial court’s failure to hold a competency hearing does not amount to constitutional error on these facts.

Ill

Hernandez also contends that, under state law, the trial court was required to conduct a competency hearing and make an express finding of competence once it had scheduled the hearing. The asserted failure to comply with state law, Hernandez maintains, constituted a violation of the[*719] fourteenth amendment’s due process clause. While alleged violations of state law per se are not cognizable in a federal habeas corpus petition, see 28 U.S.C. § 2254(a) (1988), federal courts sitting in habeas can and will review an application of state law for alleged constitutional violations. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980); see also McQueary v. Blodgett, 924 F.2d 829, 831 n. 1 (9th Cir. Jan. 10, 1991) (“The writ of habeas corpus exists precisely to allow federal-based challenges to state law.”) (emphasis added); Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir.) (“errors of state law do not concern us unless they rise to the level of a constitutional violation”), cert. denied, - U.S. -, 110 S.Ct. 344, 107 L.Ed.2d 332 (1989).

Federal courts are extraordinarily chary of entertaining habeas corpus violations premised upon asserted deviations from state procedural rules. See, e.g., Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir.1988) (publishing disposition in unmeritorious appeal “only to make as clear as we can that procedural errors committed in the course of a state criminal trial are not a ground for federal habeas corpus”) (citing Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982)), cert. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989). As the Supreme Court stated when considering a habeas petition premised upon a purportedly faulty jury instruction:

Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). We have pointed out that the Great Writ is available only where “the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985) (citation omitted), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986).

Hernandez contends that under California law, a state court loses jurisdiction to try and to sentence a criminal defendant from the time a competency hearing is ordered until that hearing is actually held. He further contends that a writ of habeas corpus lies for state prisoners convicted by courts which lacked jurisdiction under state law. Indeed, some courts have held that an absence of jurisdiction in the convicting court is a basis for federal habeas corpus relief cognizable under the due process clause. See, e.g., Lowery v. Estelle, 696 F.2d 333, 337 (5th Cir.1983) (state court jurisdiction); cf. Schlomann v. Moseley, 457 F.2d 1223, 1227 (10th Cir.1972) (military court martial), cert. denied, 413 U.S. 919, 93 S.Ct. 3068, 37 L.Ed.2d 1041 (1973). We are not persuaded that a constitutional violation necessarily occurs when the convicting state court acts without jurisdiction purely as a matter of state law. See United States ex rel. Herrington v. Mancusi, 415 F.2d 205, 208-09 (2d Cir.1969) (regarding same proposition with considerable skepticism); see also Martin v. Solem, 801 F.2d 324, 331 (8th Cir.1986) (finding similar question not cognizable where state supreme court had already ruled that trial court had jurisdiction as a matter of state law). [5] We need not make that determination today, however, because Hernandez[*720] has failed to persuade us that California law was violated at all. See id. (examining state law to determine whether convicting state court had jurisdiction); Moore v. McCotter, 781 F.2d 1089 (5th Cir.1986) (same); Herrington, 415 F.2d at 209-11 (same).

Hernandez urges that California law mandates an express determination of competency once a hearing is ordered. This contention is based on language from two recent opinions of the California Supreme Court, People v. Hale, 44 Cal.3d 531, 244 Cal.Rptr. 114, 749 P.2d 769 (1988), and People v. Marks, 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260 (1988). Those cases held that “[o]nce the trial court ordered the hearing ... it could not simply vacate the order, sub silentio.” Hale, 44 Cal.3d at 540, 244 Cal.Rptr. at 120, 749 P.2d at 774. The trial court’s jurisdiction to proceed is divested “pending express determination” of the issue. Id. at 541, 244 Cal.Rptr. at 121, 749 P.2d at 775; see also Marks, 45 Cal.3d at 1344, 248 Cal.Rptr. at 880, 756 P.2d at 267 (quoting Hale with emphasis on “express”); Cal.Penal Code § 1368(c) (West 1982) (“[WJhen an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.”). [6]

At the threshold, we are not convinced that the trial court in Hernandez’s case ever ordered a section 1368 competency hearing. Hernandez was arraigned on an amended information on Friday, April 23, 1982. The court accepted Hernandez’s plea and indicated that the scheduled dates for the pre-trial hearing (April 28) and trial (May 3) would remain unchanged. At that time, no mention was made of a hearing set for April 27, 1982, and certainly there was no indication that anyone questioned Hernandez’s competence to stand trial.

The transcript from Hernandez’s April 27 appearance also suggests that the trial judge had not ordered a competency hearing. At the onset of the “hearing,” the trial judge noted that the proceeding “was specially set at the request of [defendant’s counsel].” Hernandez’s attorney explained that the hearing “was put on calendar because I told [the prosecutor] of my intention to raise the issue of 1368, incompetency,” based upon a weekend conversation between Hernandez and counsel. Thus, the hearing presumably was scheduled with the court on Monday, April 26. Counsel then explained that he no longer felt a hearing was necessary, based upon his conversation with Hernandez that same afternoon. This colloquy indicates to us that the judge never ordered a competency hearing, despite the fact that an appearance was scheduled in order to give counsel an opportunity to explore the competency issue. [7]

Assuming that the trial court did “order” a competency hearing in the sense meant by Hale and Marks, we are not persuaded that the California Supreme Court intended its broad language to cover a situation such as this. The “mandatory” language of both the statute and the recent cases is premised upon the trial judge’s actual doubt of the defendant’s competency. See Cal.Penal Code § 1368(a) (West 1982) (pred[*721] icating entire procedure on trial judge’s doubt of competency); see, e.g., Marks, 45 Cal.3d at 1340, 248 Cal.Rptr. at 877-78, 756 P.2d at 264 (quoting a guide for trial judges which states “a hearing ... must be held if the trial judge has declared a section 1368(a) doubt”); Hale, 44 Cal.3d at 541, 244 Cal.Rptr. at 120, 749 P.2d at 775 (“once a doubt has arisen as to the competence of the defendant ... the trial court has no jurisdiction to proceed”). In both Hale and Marks, the trial court specifically stated for the record that doubt had been raised as to defendant’s sanity. See Marks, 45 Cal.3d at 1338, 248 Cal.Rptr. at 876, 756 P.2d at 263 (quoting trial court’s expression of doubt with emphasis); Hale, 44 Cal.3d at 535 & n. 5, 244 Cal.Rptr. at 116 & n. 5, 749 P.2d at 771 & n. 5 (quoting trial judge). In contrast, the record in this case contains no indication that the trial judge ever harbored any doubts as to Hernandez’s competence to stand trial.

Hernandez argues that the trial judge’s reason for ordering the hearing (including whether he harbored any doubts himself) is irrelevant to this question, because the appellate court is not to second-guess the trial court’s finding that a hearing was required. Petitioner’s argument, however, appears to assume that which is in doubt — that the trial court truly did find that a hearing was required. We are simply not persuaded that the California Supreme Court would require a hearing every time a trial judge who harbors no doubts whatsoever about the defendant’s competence affords counsel the opportunity to investigate her client’s psyche. There is no showing in this record of a deprivation of due process amounting to a violation of Hernandez’s constitutionally protected rights.

IV

Because we conclude that the federal constitution did not require a pre-trial competency hearing for Hernandez, we need not decide whether the sanity trial conducted by the trial court pursuant to Hernandez’s “not guilty by reason of insanity” plea sufficed as a substitute. The petition for a writ of habeas corpus was properly denied.

AFFIRMED.

1

. Hernandez’s amaranthine 42 U.S.C. § 1983 lawsuit, which he subsequently filed against the correctional officers purportedly involved in these assaults, has inspired spirited judicial debate over the definition of "frivolousness.” See Hernandez v. Denton, 861 F.2d 1421 (9th Cir.1988) (2-1 decision affirming in part and reversing in part district court’s dismissal as frivolous under 28 U.S.C. § 1915(d)), vacated and remanded, - U.S. -, 110 S.Ct. 37, 107 L.Ed.2d 7 (1989), on remand, 919 F.2d 573 (9th Cir.1990) (2-1 decision again affirming in part and reversing in part the dismissal).

2

. The test for competency, at least for federal habeas purposes, is "whether [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per curiam); see also Chavez v. United States, 656 F.2d 512, 515 (9th Cir.1981).

3

. Terms such as "sufficient doubt,” "bona fide doubt,” "good faith doubt," or "genuine doubt” all describe the same constitutional standard. Chavez, 656 F.2d at 516 n. 1.

4

. The Defendant: Today I should like to have the opportunity to express some of my concerns about my treatment there at the facility since I’ve been incarcerated there.

Beginning in January, 19th and 20th, I asked for aspirins and I was given heroin-loaded Tylenol pills inside. I know they were heroin because I felt drowsy. They knocked me out on the 19th and 20th.

Again, on the 21st and 22nd of January I was offered medication in a paper cup by the same officer and I refused to take it.

And again, January 23rd, a Saturday, after having eaten my dinner plate I began to feel drowsy, and my eyes began to close and my speech became impaired. But I could hear and finally I found myself stumbling in my cell. And I started calling for help. So finally the officer came, pulled me out of there and arranged to have me accepted at the emergency center at the Johnson Hospital here in town. And during that time that I was there between 7:30 and 9:30 at night-time I was given a urine and blood specimen analysis, and both the officers that took me there were witness to that. And I was interviewed by the doctor there, a young man, and I told him I feared for my safety at the jail, and I wanted to be transferred. And he said he didn’t have anything to do with that. That only my attorney and the court did.

So finally I was taken back to the jailhouse about 9:30 and I was permitted to make a phone call to my wife, which I did. And I told her what had happened. Finally I was taken back to my cell. Out of fear I pulled my mattress from my bunk and threw it underneath, and I slept underneath my bunk for over the night.

But then on Sunday, January 24th, after I spoke to my attorney I went back to my cell and I noticed that on my right hand I had three needle puncture wounds on my right hand on the top. And I know right away that somebody had picked me there with a needle on January 23rd, the previous night.

And on Tuesday — on Monday, January 25th, after I ate breakfast I took a nap and I woke up about 10:00 o’clock, and I had blood coming out of my lips. So I went to the mirror, looked in the mirror, and noticed there was a big puncture there on the corner of my bottom lip on the right side. I took a tissue paper and wiped it off, and made sure there was plenty of blood to show my attorney on the 27th at the courthouse, Municipal Court. And — but he met with me on Tuesday, the 26th of January, and I told him what had happened. And I gave him the tissue with the blood sample on the 27th at the courthouse the following Wednesday.

I thought things had stopped like that by the end of January, but it didn’t because on February 3rd I found another puncture wound on the inside of my right ankle, and another one on my lip, on my upper lip which I showed to the private investigator working under Mr. Maguire within a week after that, I believe. I’m not sure of the date, though.

And I didn’t realize, you know, that what was going on until up around the 4th or 5th of March. Again, I found my brown birthmarks scaling, falling off in black scales and black gashes all over my birthmarks on my chest and legs, and my back and my arm by my left side. And I realized finally that I was being injected with heroin throughout my birthmarks and my moles because they don't scab. They don’t produce a scab. They just darken off or fall off in scales or get black gashes. That's why it took me so long to figure out what they had been doing to me throughout February and March.

Also, on the same week of March I found evidence on my clothing and on myself of a sexual abuse, but I was so embarrassed to tell my attorney I didn’t let him know until April 10th when I found more evidence on my clothing of rape, you know.

Finally, by the 11th and the 13th I realized that they had been raping me all the time when I was drugged, you know. So I told my attorney on the 14th of April, this month, what had happened, what had been going on, and what I had discovered.

And, again, on the 24th, Saturday, I believe, of April, I was sleeping in my cell after I spoke to my attorney between 10:00 and 11:00 at about 11:30 a.m. I woke up and I found my knuckle here hurting, you know. And I noticed there was a red gash there. And I knew right away that somebody had picked me there with a needle. So I looked around my cell for more evidence and underneath the faucet of my sink I found some blood where they had wiped their hand right there.

I should like to request this court to transfer me to a different facility for I fear for my safety now that I have spoken out about my treatment there.

Thank you very much, your honor, for having given me the opportunity.

5

. In Anderson v. Gladden, 293 F.2d 463 (9th Cir.), cert. denied, 368 U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961), we affirmed the denial of a habeas corpus petition brought by a Native American who contended that Oregon state courts, in which he had been convicted of homicide, lacked jurisdiction. His challenge to the trial court’s jurisdiction was premised on federal and state law. See id. at 464. As to Oregon law, we concluded then that the applicable state statute did provide for state court jurisdiction. See id. at 467-68. See also Rogers v. Squier, 157 F.2d 948 (9th Cir.1946), cert. denied, 330 U.S. 840, 67 S.Ct. 977, 91 L.Ed. 1287 (1947), in which we construed state law to determine that the[*720] federal courts had retained jurisdiction to convict habeas petitioner.

6

. In Hernandez’s direct appeal of his conviction, he did not make this precise claim. Indeed, Hale and Marks were decided some five years after the California Court of Appeal's ruling on Hernandez’s direct appeal. Thus, we cannot simply defer to the state appellate court’s determination of this issue. Cf. Martin, 801 F.2d at 331 (relying upon state supreme court’s decision on direct appeal to resolve jurisdictional question); Moore, 781 F.2d at 1093 (looking to state intermediate appellate court’s ruling on direct appeal for guidance as to state law).

7

. In Marks, the state’s highest court rejected an argument that the trial judge had not ordered a hearing pursuant to section 1368(c), but simply "intended only to have a ‘preliminary’ hearing to determine whether there was sufficient evidence to require a competency hearing.” 45 Cal.3d at 1340-41, 248 Cal.Rptr. at 878, 756 P.2d at 264. However, that argument was clearly inappropriate in Marks, based as it was on "sheer speculation” and contradicting the court’s express statement of doubt as to competency and its order of “a special hearing which will be held pursuant to Sections 1368.1 and 1369.” Id. at 1341, 248 Cal.Rptr. at 878, 756 P.2d at 264-65.