Full opinion text
Opinion GEORGE, C. J. Defendant Jeffrey Gerard Jones was convicted, following a jury trial, of two counts of first degree murder (Pen. Code, §§ 187, 189) and one count of attempted first degree murder (§§ 664/187). The jury found true the allegations that defendant personally had used a deadly or dangerous weapon (a hammer) in the commission of each offense (§ 12022, subd. (b)) and found, as special circumstances, that defendant had been convicted in this proceeding of multiple murders (§ 190.2, subd. (a)(3)). The jury further found that defendant, who had pleaded not guilty by reason of insanity, was sane when he committed the charged offenses. Following the penalty phase of the trial, the jury set the penalty at death. This appeal from the resulting judgment of death is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment in its entirety. I Competency Hearings On January 25, 1985, a felony complaint was filed charging defendant with the present offenses. On March 1, 1985, the municipal court suspended the criminal proceedings and transferred the case to the superior court under section 1368 for a determination of defendant’s mental competence to stand trial. The superior court appointed Dr. Bruce Kaldor and Dr. Captane Thomson to examine defendant. The parties waived their right to a jury and, on September 6, 1985, a hearing to determine defendant’s competence to stand trial commenced before Superior Court Judge Benjamin Diaz. Following a five-day hearing, Judge Diaz ruled that defendant was not competent to stand trial and, on October 1, 1985, ordered that he be committed to Atascadero State Hospital. After four months at that facility, officials there determined that defendant’s competency had been restored and, on February 3, 1986, the superior court ordered that defendant be returned from the state hospital and that criminal proceedings be resumed. On October 13, 1987, defense attorney Jessie Morris filed a declaration pursuant to section 1368 expressing doubt as to defendant’s competency to stand trial. The superior court again suspended proceedings and reappointed Dr. Kaldor to examine defendant. A jury trial on the issue of defendant’s competency commenced on March 1, 1988. As explained more fully below, defendant presented evidence indicating that he suffered from paranoid schizophrenia and was receiving heavy doses of medication to control the symptoms of that disease. Defendant contended that both the disease itself and the side effects of the medication rendered him incompetent to stand trial. The prosecution countered that defendant was malingering by exaggerating his symptoms of mental illness. The jury found that defendant was competent to stand trial, and the case proceeded to trial. Guilt Phase The trial began on July 18, 1988. The evidence introduced at the guilt phase of the trial showed the following: Shortly after noon on January 21, 1985, Harry Dong was found lying on the floor of a restroom at Sutter’s Fort in Sacramento. He was bleeding profusely from severe wounds to his head and face. Larry Button, an emergency medical technician who treated Dong at the scene, described the victim’s face as “pretty well destroyed.” The fly on the victim’s pants was open, and the victim’s penis was outside his shorts. Button noticed defendant, who appeared to be a transient, standing outside the restroom and heard defendant tell another man that the victim’s “face was bashed in." This comment attracted Button’s attention because the victim’s injury had been reported as a possible gunshot wound, and appeared to the technician to have been caused by a shotgun. Dr. Hugh Moore, a physician specializing in otolaryngology (head and neck surgery), treated Dong at the emergency room of the Sacramento Medical Center of the University of California. Dong’s injuries were caused not by a gunshot, but by many blows with a blunt instrument, such as a baseball bat, the curved end of a crowbar, or a hammer. Dong subsequently died as a result of his injuries. At approximately 5 p.m. that same day, January 21, 1985, medical student John Rowland entered the men’s restroom in the lobby of the Sacramento Medical Center and began to use one of the urinals. The next thing he knew, he was lying on the floor in a pool of blood, with his head spinning. He tried to call for help but was unable to yell very loudly. He crawled to the door, raised himself up, and grabbed the door handle. As the door opened, he fell backwards into the lobby. Rowland was rushed to the emergency room. Dr. Moore, who was in the operating room treating Dong, was summoned to treat Rowland. Dr. Moore was struck by the fact that Dong and Rowland had sustained “very similar” injuries on the same day, although Dong’s injuries were more severe than Rowland’s. It appeared that Dong had received many more blows. The injuries to both victims could have been caused by a hammer. While Rowland was being treated, a nurse noticed defendant standing in the hallway just outside the emergency room. Defendant stayed for five or ten minutes and then left. Rowland survived and was operated upon by two teams of surgeons to repair a series of fractures extending from the rear of his head to the right side of his jaw. He was rendered deaf in one ear, and one side of his face is paralyzed and numb, his balance is impaired, and he has continuing dental problems. Shortly after 5 p.m. on the following day, January 22, 1985, Ronald English, an intern at the Sacramento Medical Center, was passing near the men’s restroom in the emergency room when he heard a scream and saw people pointing toward the door of the restroom. English approached, and saw defendant leaving the restroom. English put his hand on defendant’s shoulder and asked him whether he was all right. Defendant responded: “That guy in there is crazy.” As English and defendant were talking, Parmand Sharma, a custodian at the medical center, entered the restroom and yelled for help, saying someone had been injured. Defendant brushed English’s hand off of his shoulder and “took off running.” English chased defendant and called for help, while Sharma summoned the campus police. With the help of a bystander, English tackled defendant and held him until campus police officer William Davisson arrived. As Officer Davisson handcuffed defendant, he noticed a wooden handle protruding from the waistband at the rear of defendant’s pants, and then removed a claw hammer from defendant’s pants. Officer Davisson learned via his walkie-talkie that an assault had occurred, and responded that he had a suspect in custody. Defendant, who apparently had overheard this conversation, stated: “I have been framed." When subsequently booked, defendant was able to follow simple instructions without apparent difficulty. While defendant was being pursued, emergency room nurse Jeffrey Howell entered the restroom and found Dr. Michael Corbett slumped in front of the urinal, bleeding profusely from the back of his head. Corbett’s breathing was slow and irregular, and he was nonresponsive and near death. Despite efforts to resuscitate him, Corbett died as a result of his injuries. Autopsies revealed that Dong and Corbett died as the result of having received multiple blows from a blunt instrument. Their injuries were quite similar, and both victims displayed circular bruises, approximately one inch in diameter. The hammer found in defendant’s possession could have caused Dong’s and Corbett’s injuries. There were no defensive wounds to indicate that either Dong or Corbett attempted to fend off his attacker. Dr. Bahram Cherazi, a neurosurgeon who operated on both Corbett and Rowland, testified that the injuries suffered by both victims were quite similar and “appeared to be imparted by a rounded, pointed but not necessarily a sharp object . . . with a great deal of force.” Both Corbett’s and Rowland’s injuries could have been inflicted by using the hammer seized from defendant. Evidence of the following uncharged similar offense was admitted for the limited purpose of proving that defendant was the individual who committed the charged offenses. Shortly after noon on January 18, 1985, three days before Dong was killed, Jere Lipps, a professor of geology at the University of California at Davis, heard someone turn the doorknob of the locked door to his office, and then knock on the door. Professor Lipps opened the door, found defendant standing there, and asked defendant what he wanted. Defendant said he was looking for a friend. When defendant mentioned a room number, Professor Lipps gave him directions to that room. As they spoke, defendant looked over Professor Lipps’s shoulder into the office. Professor Lipps returned to his office and closed the door but, because defendant had acted suspiciously during their encounter, Professor Lipps soon returned to the hallway to see where defendant had gone and was startled to find him still standing near the door. After Professor Lipps repeated the directions he had given earlier, defendant started down the hallway, walking stiffly, with his right arm pressed to his side. Defendant entered a restroom and, a minute or two later, came out and hurried down the hall. A few minutes after defendant left the restroom, Professor James McClain entered and found the body of Professor Fred Morris lying on the floor near the urinal in a pool of blood. The zipper on the victim’s trousers was down. An autopsy revealed that Morris died “from multiple blunt injuries to the skull.” Morris had sustained a circular wound, about an inch in diameter, below his left ear; the left side of Morris’s jaw had been shattered, and he had a third wound above his left ear. All of the wounds could have been inflicted by using defendant’s hammer. Bloodstains found on the clothing worn by defendant at the time of his arrest were analyzed and found to be inconsistent with defendant’s blood type and consistent with the blood types of victims Corbett, Rowland and Dong. One bloodstain revealed a trait present in Corbett’s blood that appears in only six persons in a thousand. Bloodstains also were found on the hammer seized from defendant. One stain was inconsistent with defendant’s blood and could have been a mixture of blood from several persons. Defendant presented an alibi defense to the uncharged offense and to one of the charged offenses, through the testimony of his aunt, Hazel Sadler, who stated that he was at home at the time of the commission of the uncharged murder of Morris on January 18, 1985, and the charged murder of Dong on January 21, 1985. Defendant also presented the testimony of Judy Zimmerman that, at the time of the Dong murder, she was eating lunch near the restroom at Sutter’s Fort and did not notice defendant or any other African-American man in the area. At the conclusion of the guilt phase, the jury found defendant guilty of two counts of first degree murder and one count of attempted first degree murder, found that he had used a deadly or dangerous weapon in the commission of each offense, and finally found, as a special circumstance, that he had been convicted in this proceeding of multiple murder. Sanity Phase As noted above, in addition to pleading not guilty, defendant pleaded not guilty by reason of insanity and, accordingly, a sanity phase hearing was conducted after the jury returned its verdicts at the guilt phase. At the commencement of the sanity phase hearing, the parties stipulated that the evidence introduced during the guilt phase could be considered by the jury at the sanity phase. In addition, defendant’s mother and two family friends testified to defendant’s increasingly aberrational behavior during the years leading up to the charged offenses, including lack of personal hygiene, paranoid behavior, and complaints of hearing voices. A childhood friend of defendant testified to a marked change in defendant’s behavior during or after defendant’s years in high school. After leaving high school, defendant did not bathe regularly, wore dirty clothes, had difficulty communicating, and acted strangely. Several psychiatrists and other mental health professionals testified on behalf of defendant that he suffered from paranoid schizophrenia and was receiving heavy doses of medication to control the symptoms of that disease. Several of these physicians opined that defendant was not legally sane at the time of the offense, but also acknowledged that defendant displayed an antisocial personality disorder and that it was difficult to determine whether a patient was malingering. The prosecution introduced no evidence during the sanity phase of the trial. The jury found that defendant was sane when he committed the charged offenses. Penalty Phase A psychiatrist and a clinical psychologist offered further details regarding defendant’s mental illness and antisocial personality disorder. Family members and friends testified that defendant appeared normal during childhood but showed signs of mental illness during and after his years in high school. The prosecution presented no evidence during the penalty phase of the trial. The jury returned a verdict of death. n Competency to Stand Trial As noted above, two hearings were held under section 1368 to determine defendant’s competency to stand trial. Defendant asserts he was denied due process of law because the trial court failed to initiate a third competency hearing. We describe in some detail the evidence introduced at the second competency hearing. Dr. William Greenough, an emergency room physician at Sutter-Davis Hospital in Davis, the city where defendant resided with his mother, testified at the jury trial on the issue of defendant’s competency that on August 3, 1983, a year and a half before the present offenses, defendant entered the emergency room with a “variety of complaints,” including that his head was “splitting open,” he felt as if he were “turning into two different people,” and he feared he had been poisoned with embalming fluid. Following a physical examination that disclosed no medical problems, and a psychiatric examination, Dr. Greenough diagnosed defendant as having “a severe psychiatric mental disorder, most probably paranoid schizophrenia, which had most probably been present for many years.” He did not believe defendant was malingering. Dr. Greenough arranged for defendant to be admitted to the psychiatric unit at Woodland Memorial Hospital. Although defendant entered the hospital voluntarily, he later became hostile and asked to be discharged. Dr. Edward Doehne determined that defendant was a danger to himself and others, placed a 72-hour hold on defendant pursuant to Welfare and Institutions Code section 5150, and administered to him, by injection, the antipsychotic medication Prolixin. At one point, defendant attempted to leave the hospital and was placed in restraints for several hours. Defendant later consented to take his medication orally, and his condition seemed to improve. Dr. Theodore Hoffman, Jr., a psychiatrist, also treated defendant at Woodland Memorial Hospital and concluded defendant “was experiencing a paranoid schizophrenic disorder of a grandiose type.” Dr. Hoffman believed defendant truly was psychotic and was not elaborating upon his symptoms. At the conclusion of the 72-hour period, Dr. Doehne requested that defendant be held for an additional 14 days, but that request was denied and defendant was released on August 8, 1983. On May 1, 1984, Dr. Greenough again examined defendant in the emergency room of the Sutter-Davis Hospital. Defendant complained he was “feeling bad all over” and described many ailments, including “a burning pain ‘in the middle of [his] brain.’ ” A physical examination disclosed no medical problems, and Dr. Greenough reaffirmed his conclusion that defendant “had a major psychiatric problem, which was probably paranoid schizophrenia.” He believed defendant’s mental condition had worsened from when he had seen defendant eight months earlier. Defendant again was referred to Woodland Memorial Hospital, where Dr. Hoffman prescribed the psychotropic medication Navane. Gillian Rumsey, a psychiatric nurse who is the program manager of the Sacramento County jail psychiatric services, met defendant in January 1985 shortly after his arrest on the current charges, when defendant became a prisoner at the county jail. From January to March of 1985, defendant refused medication, did not communicate verbally, and did not bathe regularly. When Rumsey would enter his cell, which was scattered with garbage, defendant would turn away and stare at the wall. In March 1985, Rumsey had defendant transferred to the psychiatric unit of the jail for 72 hours of observation, because defendant had been pacing in his cell and appeared agitated. Defendant was involuntarily medicated with the neuroleptic Haldol but, when returned to a regular cell, refused further medication. On March 19, 1985, Dr. Bruce Kaldor, a psychiatrist appointed by the municipal court to evaluate defendant’s competency to stand trial, examined defendant in his jail cell. Defendant appeared alert but refused to communicate with Dr. Kaldor. The jailers with whom Dr. Kaldor spoke had not observed defendant talking to himself or appearing to hear voices. Dr. Kaldor testified that defendant could be competent to stand trial even though he suffered from paranoid schizophrenia; “[A] paranoid schizophrenic can be quite competent. Competency does not necessarily equate with mental illness. So a person may have the disease of schizophrenia and be personally able to stand trial due to his competency.” Dr. Kaldor added that a person with antisocial personality disorder also may be competent to stand trial, and that a person with an antisocial personality disorder is more likely to malinger or fake a mental illness. Nurse Rumsey testified that defendant remained unmedicated until July, when he again became agitated, yelling threats, disrobing and standing nude in his cell, and inducing vomiting and spreading the vomitus on the walls. Defendant again was transferred to the psychiatric unit and involuntarily medicated with Haldol. After 14 days, defendant was returned to the regular jail population and agreed to continue his medication voluntarily. To decrease side effects, his medication was changed to the neuroleptic Thorazine Prolixin. On August 22,1985, Dr. Kaldor examined defendant in an interview room at the jail. Dr. Kaldor told defendant he was there to determine whether defendant was competent to stand trial, but defendant did not respond initially. After Dr. Kaldor several times requested defendant’s cooperation, defendant stated: “I’m hearing voices, hallucinating.” Dr. Kaldor asked defendant about the voices, but defendant would not elaborate. Later, defendant added: “I am seeing things.” When asked what he was seeing, defendant replied: “Eyeballs.” About 15 minutes into the interview, defendant turned his back on Dr. Kaldor and refused to say anything more. Dr. Kaldor considered reports from jailers who said that defendant appeared to be rational, read the newspaper, and conversed with other inmates. Dr. Kaldor stated that these reports “raised the question in my mind as to whether Mr. Jones was malingering .... And essentially I gave him the doubt. [<fl] I thought the likelihood was greater that he was incompetent than competent . . . .” As noted above, the court concluded that defendant was not competent to stand trial and committed him to Atascadero State Hospital. Dr. Harold Carmel was a staff psychiatrist at Atascadero State Hospital when defendant was admitted on October 16, 1985. The initial assessment of defendant was that he was psychotic, possibly suffered hallucinations from an organic cause, and possibly was malingering. On October 23, 1985, after a week of examinations, the staff noted “many inconsistencies in his story which suggest a conscious deceptiveness.” The initial diagnosis of psychosis was confirmed, but with a “possibility of some degree of malingering.” Dr. Carmel examined defendant on October 28, 1985 and concluded he “probably had a chronic psychosis with an element of malingering.” On October 29, 1985, a psychiatric technician observed defendant tell another patient “that he wasn’t going to leave the hospital for a long time, just watch. And then he laughed.” On November 4, 1985, a psychiatric technician heard defendant say: “I am incompetent and will be for a long time.” This was unusual because “the concept of incompetence is actually one of the more difficult things for an incompetent person to grasp. It is an abstract concept.” Defendant’s behavior was a problem. He was involved in a minor tussle with another patient, and defendant’s privilege to be in the halls was withheld. Defendant would pressure lower functioning patients for cigarettes and coffee. On November 11, 1985, defendant said to a female psychiatric technician: “I’ll give you loving, gal; just get over here right now.” When the technician told him his behavior was inappropriate, he responded: “I’m mentally ill. I can’t help what I say.” This showed that defendant understood “that there is the possibility of being excused from behavior as a result of the mental illness.” On November 18, 1985, a psychiatric technician heard defendant say: “I am incompetent, I don’t remember anything about my crime,” and then laugh. But on January 8, 1986, Dr. Carmel overheard defendant tell another patient: “They got the weapon and blood stains, but they ain’t got no witnesses.” Social worker Lawrence Thomson reported that defendant acted slow and dulled in formal settings, but was more lively and alert with other patients. In all, defendant’s behavior was “consistent with a man with a chronic psychiatric illness who is exaggerating his symptoms[;] who was malingering in that sense.” On December 4, 1985, defendant asked social worker Thomson for help in completing an application for disability payments under social security. Thomson noted that defendant seemed “rational and focused when he wants his needs met.” From December 5-12, 1985, psychological tests were administered to defendant by psychologist intern James Frank under the supervision of staff psychologist Dr. Riley. The resulting diagnosis was “schizophrenia, paranoid type in remission, malingering and antisocial personality disorder.” Defendant was taking 40 milligrams of Navane per day while at Atascadero State Hospital. He was required to take his medication, but complied willingly and told Dr. Carmel that he needed his medication to stay competent. After defendant was returned to jail from Atascadero on February 7, 1986, he was taking 40 milligrams of Navane per day and 4 milligrams of Cogentin to control side effects. Between June and October 1986, defendant requested an increase in his medication, stating he was hearing voices, and his daily dose of Navane was increased to 50 milligrams. Rumsey reported “there was a marked improvement in his appearance, in his behavior, in the condition of his cell, in his personal hygiene.” Defendant “reported a decrease in the volume and frequency of the voices.” In July 1986 and August 1987, Dr. Daniel Edwards, a clinical psychologist, administered intelligence tests that indicated defendant was retarded. Dr. Edwards noted that defendant had scored significantly higher on an intelligence test conducted at Atascadero State Hospital late in 1985. This change in performance could have been caused by a worsening of defendant’s psychosis or could indicate that defendant was malingering. Dr. Edwards noted that a personality test conducted at Atascadero State Hospital was deemed invalid “because of the high score on one of the validity checks.” Dr. Edwards explained that defendant had “checked so many symptoms and the scale was so elevated in terms of pathological condition that either he didn’t understand what he was doing and maybe checked randomly ... or was malingering.” Although defendant had graduated from high school in the 44th percentile of his class, having received a B in algebra, defendant performed at a preschool level on a vocabulary test administered by Dr. Edwards. This apparent dramatic drop in mental ability could have resulted from the onset of organic brain damage, the development of a psychosis, or malingering on defendant’s part. Defendant appeared incapable of making complex decisions, such as whether he should testify in his own behalf. When asked about defendant’s “mental age,” Dr. Edwards estimated that defendant was “performing at the level of a third grader at best, in my opinion, which would be like a nine or ten-year-old at best.” Dr. Edwards diagnosed defendant as suffering from “an atypical organic brain syndrome with possible dementia,” and “[sjchizophrenia, paranoid type chronic.” On November 4,1986, defendant again complained of hearing voices, and his medication was increased to 60 milligrams per day. On November 7, 1986, defendant appeared more withdrawn. The dosage was increased again on November 18, 1986, to 70 milligrams per day. On May 19, 1987, the dosage was decreased to 50 milligrams per day due to the fear of irreversible side effects. On June 2, 1987, after defendant reported an increase in the volume and frequency of the voices, his dosage of Navane was increased to 60 milligrams per day. On June 12, 1987, it again was increased to 70 milligrams per day. Defendant appeared more spontaneous. Between January 1986, and the time of the second competency hearing (March 18, 1988), defendant improved slightly, began to address Nurse Rumsey by name, and would wave at her if he saw her in the hallway. Rumsey agreed that, since his return from Atascadero, defendant had been successfully maintained on medications, and that his mental condition was better than before he went to Atascadero. Psychiatrist Dr. Marlene Mirassou, medical director of the psychiatric unit of the Sacramento County jail, examined defendant on October 1, 1987, to render a second opinion regarding defendant’s medication. Defendant’s daily dosage of Navane was 80 milligrams at that time. The psychiatrists working at the jail had agreed that if more than 60 milligrams per day was prescribed, an additional psychiatrist would review the case. Dr. Mirassou stated that the “usual therapeutic range” for Navane was “around sixty milligrams a day,” but she explained that this was “not an absolute upper limit.” “[I]n fact, Navane can be used in doses of over one hundred milligrams per day. But that is not usual.” Exceeding a dosage of 60 milligrams per day rarely increases the beneficial response. One reason Dr. Mirassou examined defendant was to see whether his was “one of the rare cases” in which a higher dose was appropriate. The possible side effects of Navane include “muscle spasms, muscle tics or twitches” and lowered blood pressure. “In terms of short-term side effects it is fairly safe. Even in large doses. It is extended doses that are of concern.” If a person who did not have a psychotic mental disorder took a daily dose of 60 milligrams of Navane, it is likely that person would be extremely sedated by it. Dr. Mirassou advised defendant that at his current dosage he might have more trouble with muscle twitches, but defendant related that when his medication was decreased he had “more difficulty with the voices.” Defendant indicated “he preferred the increased dose and the improved symptoms . . . .” According to defendant, “the positive effect of the medication was worth risking the possible side effects.” Dr. Mirassou added: “And when I saw Mr. Jones again two weeks later [on October 15, 1987] when a question about his ability to give consent had been brought up, we talked about it again, and he gave me the same general idea.” After spending a half hour with defendant, Dr. Mirassou felt that, given more time, defendant was capable of giving informed consent to taking the medication. Other possible side effects of Navane include weight gain, breast enlargement, and drowsiness. Eugene Lockmiller testified that from January 1986 to July 1987, he was a guard on the day shift at the Sacramento County jail. Defendant was in a single cell and slept most of the time. He had a subscription to the Sacramento Bee, but Lockmiller never saw defendant read the newspaper. Defendant would grin in response to jokes and was able to understand and follow instructions, but was extremely slow. As noted above, on October 13, 1987, defense attorney Morris filed a declaration pursuant to section 1368 expressing doubt as to defendant’s competency to stand trial. The superior court suspended proceedings and again appointed Dr. Kaldor to evaluate defendant’s competency. Dr. Kaldor interviewed defendant on November 18, 1987. Defendant responded to Dr. Kaldor’s questions and gave accurate information concerning various topics, such as defendant’s age and where he had lived prior to his incarceration. Dr. Kaldor found a marked improvement in defendant’s condition compared to when he had examined defendant two years earlier. The psychiatrist was concerned that defendant was not as cooperative as he could be. Defendant stated that he heard voices every day, about 20 hours per day. The voices said they were going to kill him. Dr. Kaldor said: “I was impressed on how much he had improved as a result of his treatment at Atascadero.” Defendant knew he was charged with three murders and said it was: “Because I killed some people.” Dr. Kaldor asked defendant about his defense to the current charges, and defendant indicated his attorney “is going to do an insanity thing. It means that I am crazy, I think. I didn’t know what I was doing. The voices told me to kill them.” Dr. Kaldor asked defendant “how he would explain his way out of these charges,” and defendant responded: “Tell them that I was hearing voices at the time .... Tell them I was sick.” Dr. Kaldor was concerned whether defendant was malingering and concluded that defendant was schizophrenic but, nevertheless, was competent to stand trial. Psychiatrist Dr. James Peal examined defendant and concluded that he was not competent to stand trial. Upon first examining defendant in 1985, Dr. Peal concluded: “He was, for the most part, mute. He was unable to respond to questions other than his name and other than the fact that he heard voices.” “My conclusion was that Mr. Jones had manifestations of. a major mental illness. He was responding to voices. The voices interfered with his ability to think and to hear or respond to what was being asked. He was preoccupied almost entirely with the voices and he was not able to tell me in any fashion what the voices were telling him except that they were telling him to kill. He was extremely frightened of the voices at that time.” Dr. Peal examined him several times after defendant returned from Atascadero, including in August 1987 and on March 2 and 6, 1988, finding that “the clinical picture didn’t change very much.” Regarding whether defendant understood the charges, Dr. Peal stated: “Jeffrey Jones knows in a very specific concrete way that he is accused of a major crime in the sense that he can say, yes, I am accused of murder. In terms of real understanding what that means, I don’t think he has it.” Defendant told Dr. Peal that he had killed some people. Regarding defendant’s ability to testify: “My opinion is that his ability to testify is grossly impaired. It is impaired by his illness and it is impaired by the medication that he is on to treat or contain his illness. [<¡0 I found that he was unable to understand or comprehend questions. He could not pay attention long enough to hear the questions. He was preoccupied with hearing these voices so that he couldn’t understand the questions, and he responded to most of them usually with no response or with an I don’t know or I don’t remember. [*jQ He has difficulty with the medication that he is on and the amount even in focusing his attention on anything or staying awake.” Dr. Peal believed that defendant could not participate in his defense because he could not furnish information to his attorneys and does not understand “what this is all about.” Defendant’s “recent and remote” memory is “grossly impaired.” “The problem with his recent memory is that not only is he competing with his voices, but he is competing with the eighty milligrams of Navane that he is on which impairs his ability to perceive, a great deal of the time he is somnambulant. He’s sleeping. So he can’t take in what is going on if he is asleep.” Dr. Peal concluded that defendant suffers from “schizophrenia, paranoid type.” In Dr. Peal’s view, schizophrenics cannot malinger and a person cannot be schizophrenic and have an antisocial personality disorder. Dr. Peal does not believe defendant has an antisocial personality disorder, and does not believe defendant is a malingerer. Psychologist Grant Hutchinson testified that defendant is a paranoid schizophrenic, but also “has a personality disorder of the antisocial type.” Dr. Hutchinson stated his belief that schizophrenics can exaggerate their symptoms, opining: “I feel at various times and on different occasions this defendant has malingered.” At the time of the hearing on March 17, 1988, defendant was taking 90 milligrams of Navane daily. Regarding the circumstance that defendant slept much of the time, Dr. Mirassou stated: “Again, one of the problems in this particular setting is that the amount of stimulation, the amount of things to do available to the inmates is extremely low, especially in a single cell, and many people off of medication don’t do anything but sleep and eat.” As Dr. Mirassou later put it: “I never know whether it is the jail or the medication.” On March 30, 1988, the jury found defendant competent to stand trial. On July 13, 1988, at the conclusion of a hearing on pretrial motions, defense counsel made the following statement: “As the Court knows, the defense made a [Penal Code section] 1368 request and we had a ruling against us. Our position hasn’t changed with regard to our belief that we believe Mr. Jones lacks competency. And I simply want to put on the record now that he is sitting there with his eyes closed and appears to be sort of nodding off. And he is on heavy doses of medication that has a side effect of drowsiness. And I would simply like the record to reflect that at the present time for whatever value to the proceedings it is relevant.” The court responded: “All right. The record will so reflect.” The guilt phase of the trial commenced with jury selection on July 18, 1988. The following day, during voir dire, defense counsel stated: “Before we have take [szc] a recess, I would like to put on the record that during the course of voir dire of Mr. Ames, Mr. Jones was sleepy, and my belief is he slept approximately about seventy percent of the particular voir dire. I simply would place that on the record for whatever purposes.” The court responded: “I would indicate to you that I caught your eye as well as when I was looking at him, I looked down at him and while he appeared to be asleep, at one point one eye opened and he looked around to see me and then immediately closed it and went back to sleeping. For what ever purpose that is. But yes, the record will so reflect.” On July 20, 1988, defense counsel stated, “[j]ust for the record,” that defendant appeared to be sleeping during the entire voir dire of one juror. The court responded: “All right. The record will reflect he has apparently had his eyes closed most of the time.” Defense counsel made a similar statement on July 26, 1988. On August 2, 1988, defense counsel stated during voir dire: “Today Jeffrey Jones seems to be incredibly more drowsy than any other time I have seen him, and he slept pretty much the entire morning.” The court responded: “The record will reflect for most of the morning he has had his eyes closed.” On August 9, 1988, defense counsel stated: “[T]his morning during the voir dire, Mr. Jones was, I believe, asleep for about fifteen minutes this morning. I ask the Court to put it on the record because I believe it has to do with the problem of him being overmedicated.” On September 7, 1988, the tables turned somewhat. The prosecutor noted that “the last few days [defendant] has been at least sitting there with his eyes closed more often than not” and asked whether “it might be appropriate if we can give his jail doctors a call to see if there is a problem with his medications or can they vary them so he is a little more alert during his death penalty trial.” Defense counsel responded: “Absent the medication, the problems that Jeffrey Jones has is that the voices start getting louder. . . . [Tjhere are certain psychotic symptoms and signs that take place and he becomes a control problem. And while he has been on medication there hasn’t been a control problem at all. . . . [*][] It is just that I am not so sure that if there is a middle ground—they tried changing medications, I am aware of, and the other medication had a side effect that is far worse than the one he is on. [<][] I recognize the jail is doing the best they can, and, I mean, I will encourage any efforts to improve his condition, but my belief is the condition he is in right now is probably the best that we have got.” The trial court encouraged both defense counsel and the prosecutor to contact defendant’s physicians at the jail to ascertain whether defendant’s medications could be adjusted, stating that the court did not know “whether he is not sleeping at night and sleeping during the day,” and adding: “I noticed his head was nodding this morning.” On September 22, 1988, at the close of the prosecution’s case in the guilt phase, the trial court remarked: “For the record, several times this afternoon [defense counsel] has been yawning.” Defense counsel rejoined: “Yes, but I didn’t fall asleep like my client who slept part of the morning and this afternoon.” On October 31, 1988, during the sanity phase, the court directed the bailiffs “to get Mr. Jones up and moving around so he can stay awake.” Defense counsel noted that defendant “apparently fell asleep,” to which the court responded: “His eyes were closed. Occasionally they open. How far asleep he was, I don’t know. But I want him to get up and move around.” Finally, on November 1, 1988, at the conclusion of a discussion of jury instructions for the sanity phase, the following colloquy occurred: “[Defense Counsel]: I would just ask the record reflect during the time we have been discussing this Jeffrey Jones has been sitting there— [*][] The Court: Let the record reflect he again had his eyes closed. I cannot make a determination at the time whether he is asleep or just closing his eyes.” An engrossed settled statement on appeal, issued by the trial court on June 26, 1992, stated that, during the guilt and penalty phases of the trial, “the Court was not watching defendant at all times.[] When defendant’s counsel asked the Court to note for the record that defendant was asleep, this Court noticed that defendant was sitting erect with his eyes closed and so noted for the record. This Court does not recall any other instances in which defendant had his eyes closed during the proceedings. [*][] Based on the testimony of [defense counsel], this Court finds that there were one or more other occasions during the guilt phase of the trial, which were not brought to the Court’s attention and therefore not reflected in the record, where defendant was sitting erect with his eyes closed . . . .” As noted above, defendant asserts he was denied due process of law because the trial court failed to conduct an additional competency hearing pursuant to section 1368 despite “substantial new evidence” suggesting that defendant “was daily being sedated into a veritable stupor” by the administration of antipsychotic drugs. “A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).) To the same effect, the United States Supreme Court has held that “ ‘the criminal trial of an incompetent defendant violates due process.’ [Citations.] ...[*][] The test for incompetence is also well-settled. A defendant may not be put to trial unless he ‘ “has 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.]” (Cooper v. Oklahoma (1996) 517 U.S._, _ [116 S.Ct. 1373, 1376-1377, 134 L.Ed.2d 498].) “When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citation.] Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competence to stand trial. [Citation.] The court’s duty to conduct a competency hearing arises when such evidence is presented at any time ‘prior to judgment.’ [Citations.] [U When a competency hearing has already been held and the defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding. [Citations.]” (People v. Jones (1991) 53 Cal.3d 1115, 1152-1153 [282 Cal.Rptr. 465, 811 P.2d 757]; People v. Kelly (1992) 1 Cal.4th 495, 542 [3 Cal.Rptr.2d 677, 822 P.2d 385].) Two competency hearings were held in the present case. The municipal court initiated the first hearing, which resulted in a suspension of the criminal prosecution and defendant’s transfer to Atascadero State Hospital. After it was determined that defendant had become competent to stand trial, and criminal proceedings had resumed, defense counsel informed the court he believed defendant was incompetent to stand trial. Defendant again was evaluated by mental health professionals, and a jury trial was held, following which the jury found defendant was competent to stand trial. A primary issue at the competency trial was whether defendant was malingering by exaggerating the symptoms of his mental illness. Evidence also was introduced establishing that defendant was taking large doses of medication, one side effect of which was sleepiness. Defense counsel argued to the jury that the drowsiness caused by the medication was sufficient alone to support a finding that defendant was incompetent to stand trial. The jury found that defendant was competent. Following the second competency hearing, defense counsel periodically noted “for the record” that defendant appeared to be asleep, but did not request a third competency hearing, apparently concluding that defendant’s apparent drowsiness did not constitute substantial new evidence of incompetence. Defense counsel stated on the first occasion the issue was raised following the competency trial: “Our position hasn’t changed with regard to our belief that we believe Mr. Jones lacks competency. And I simply want to put on the record now that he is sitting there with his eyes closed and appears to be sort of nodding off. And he is on heavy doses of medication that has a side effect of drowsiness. And I would simply like the record to reflect that at the present time for whatever value to the proceedings it is relevant.” The circumstance that defendant appeared sleepy or drowsy during court proceedings did not constitute “a substantial change of circumstances” or “new evidence” of incompetence necessitating a third competency hearing. (People v. Jones, supra, 53 Cal.3d 1115, 1153.) Defendant asserts that because the judge who presided over the guilt, sanity, and penalty phases of the trial had not presided over either of the two competency hearings, that judge “had a duty to make an independent assessment” of defendant’s competence. Defendant cites no authority in support of this proposition, and we are aware of none. It is absurd to suggest that, following a jury trial at which it is determined that defendant is competent to stand trial, the assignment of another judge to conduct further proceedings, standing alone, necessitates relitigating the issue of defendant’s competence to stand trial. It also appears that the judge who presided over the guilt, sanity, and penalty phases of the trial was not presented with substantial evidence of incompetence that would have necessitated a further hearing on defendant’s competence to stand trial. The judge made it clear that he could not determine whether defendant was sleeping or simply had closed his eyes, and the judge suspected that defendant may have been malingering by exaggerating the extent of his drowsiness. On one occasion when defense counsel raised this issue, the court remarked that while defendant had appeared to be asleep, “at one point one eye opened and he looked around to see me and then immediately closed it and went back to sleeping.” In the engrossed settled statement, the court stated it could not determine whether defendant was asleep or simply had his eyes closed, but was careful to note that defendant remained sitting erect when his eyes were closed. Based upon the record as a whole, the trial court did not err in failing to conduct a third competency hearing. Administration of Antipsychotic Drugs Relying upon the decision in Riggins v. Nevada (1992) 504 U.S. 127 [112 S.Ct. 1810, 118 L.Ed.2d 479], defendant contends he was denied due process of law because antipsychotic drugs were administered to him to control his schizophrenia during the course of the proceedings conducted in the present case. The defendant in Riggins was charged with murder and robbery. While in jail, he told a psychiatrist he was hearing voices in his head, and the psychiatrist prescribed medication, including an antipsychotic drug. Prior to trial, the defense moved the court for an order suspending administration of the medications the defendant was taking. At a hearing on the motion, two psychiatrists testified that, without medication, defendant would remain competent to stand trial and his demeanor would not change noticeably. A third psychiatrist testified the medication made defendant calmer, but he could not predict how defendant would react if taken off the medication. A fourth psychiatrist testified defendant was incompetent to stand trial even while taking the medication, and predicted that, without medication, defendant’s condition would deteriorate. The trial court, without indicating its reasoning, denied the motion to suspend administration of the medication. (Id. at pp. 130-131 [112 S.Ct. at pp. 1812-1813].) The United States Supreme Court held that involuntary administration of the antipsychotic drug denied the defendant due process of law, because the state failed “to establish the need for [the drug] and the medical appropriateness of the drug.” (Riggins v. Nevada, supra, 504 U.S. 127, 135 [112 S.Ct. 1810, 1815].) The high court observed: “Although we have not had occasion to develop substantive standards for judging forced administration of such drugs in the trial or pretrial settings, Nevada certainly would have satisfied due process if the prosecution had demonstrated, and the District Court had found, that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins’ own safety or the safety of others. [Citations.] Similarly, the State might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins’ guilt or innocence by using less intrusive means. [Citation.] The question whether a competent criminal defendant may refuse antipsychotic medication if cessation of medication would render him incompetent at trial is not before us.” (Id. at pp. 135-136 [112 S.Ct. at p. 1815].) Unlike defense counsel in Riggins v. Nevada, supra, 504 U.S. 127, the defense in the present case did not move the trial court to suspend administration of defendant’s medication, or otherwise assert in the trial court that defendant was being medicated against his will. To the contrary, during selection of the guilt phase jury, defense counsel stated, regarding the administration of defendant’s medication by jail personnel: “I recognize the jail is doing the best they can, and, I mean, I will encourage any efforts to improve [defendant’s] condition, but my belief is the condition he is in right now is probably the best that we have got.” Defendant may not raise, for the first time on appeal, the claim that he was denied due process of law because antipsychotic drugs were administered to him to control his schizophrenia during the proceedings in the present case. (People v. Lucas (1995) 12 Cal.4th 415, 477 [48 Cal.Rptr.2d 525, 907 P.2d 373].) Even if we were to consider the merits of defendant’s contention, it is clear that the holding in Riggins v. Nevada, supra, 504 U.S. 127 does not apply in the present case, because defendant did not refuse the medication and was not forced to take the antipsychotic drug. Nothing in the decision in Riggins v. Nevada, supra, 504 U.S. 127, or in any other case of which we are aware, suggests that a competent criminal defendant’s voluntary ingestion of medication that has been provided by the state denies the defendant due process of law. Defendant attempts to avoid this result by observing that in 1985, nearly three years prior to trial, he refused medication for a brief period and was medicated against his will. Defendant argues that, as a result, his subsequent compliance in taking medication must be deemed involuntary. The record before us does not support defendant’s argument. From January 22, 1985, when defendant was transferred to the Sacramento County jail following his arrest, until March of that year, defendant refused medication for his mental illness. On March 10, 1985, the psychiatric staff at the jail had defendant transferred to the psychiatric unit of the jail for 72 hours of observation, because defendant had been pacing in his cell and appeared agitated. Defendant was involuntarily medicated with the antipsychotic drug Haldol but, when returned to a regular cell, refused further medication. Defendant remained unmedicated until July 15, 1985, when he again became agitated, yelling threats, disrobing and standing nude in his cell, and inducing vomiting and spreading the vomitus on the walls. Defendant again was transferred to the psychiatric unit and involuntarily medicated with Haldol. After 14 days, defendant was returned to the regular jail population and agreed to continue his medication voluntarily. To decrease side effects, his medication was changed to the antipsychotic drug Thorazine Prolixin. Defendant accepted his medication until April 12, 1988, when his medication was changed to the antipsychotic drug Prolixin and defendant developed diarrhea. Defendant stopped taking the Prolixin, because he concluded it was causing the diarrhea, and asked to be given Navane. On May 13, 1988, defendant’s medication was changed to Loxitane, and he resumed taking his medication. As the foregoing illustrates, defendant’s assertion that he “persistently refused being medicated with antipsychotic drugs” is not supported by the record. Defendant refused medication only during the first six months following his arrest. During this period, jail officials forcibly medicated him only when it appeared he had become a danger to himself or others. After the first occasion when defendant was medicated forcibly, in May 1985, he refused to continue his medication voluntarily and thereafter was not medicated for several months, until it again appeared he had become a danger to himself or others. After he was medicated forcibly a second time, defendant consented to continue his medication and did so for several years, until April 1988, when he concluded that a change in his medication was causing an unpleasant side effect. Defendant thus demonstrated on two occasions his ability to discontinue his medication. It does not appear, as defendant asserts, that his ingestion of antipsychotic drugs rendered him incapable of refusing such medication. It also is significant that, following his April 1988 refusal to accept medication, he consented to resume treatment when his medication was changed at his request. Defendant thus consented to resume taking antipsychotic drugs, prior to the guilt, sanity, and penalty phases of his trial, at a time when he was unmedicated. Following his initial refusal to accept medication, it appears without contradiction that defendant willingly accepted his medication. While confined in Atascadero State Hospital in late 1985, defendant told Dr. Harold Carmel, a staff psychiatrist, that he needed his medications to stay competent. On October 1, 1987, psychiatrist Dr. Marlene Mirassou, medical director of the psychiatric unit of the Sacramento County jail, examined defendant for the purpose of rendering a second opinion regarding defendant’s medication. Defendant was ingesting 80 milligrams of Navane per day. Dr. Mirassou advised defendant that, at his current dosage, he might have more trouble with side effects such as muscle twitches, but defendant related that when his medication was decreased he had “more difficulty with the voices.” Defendant indicated “he preferred the increased dose and the improved symptoms,” indicating that “the positive effect of the medication was worth risking the possible side effects.” Dr. Mirassou added: “And when I saw Mr. Jones again two weeks later ... we talked about it again, and he gave me the same general idea.” A. member of the jail psychiatric staff reported that on August 10, 1988, defendant told her “that with the medications the voices are there but they are not as bothersome to him.” Dr. James Peal, a psychiatrist retained by the defense, examined defendant and testified on defendant’s behalf during the competency trial, describing defendant as being “very insistent upon taking his medication” because it lessens the voices he hears in his head. Accordingly, we have no basis upon which to conclude that defendant was medicated involuntarily with antipsychotic drugs. Defendant contends the state bore the burden of proving that defendant gave informed consent to being medicated with antipsychotic drugs. Assuming for the purpose of argument that a person who has not been judicially determined to be incompetent must furnish informed consent before being treated with antipsychotic drugs (cf. Riese v. St. Mary’s Hospital & Medical Center, supra, 209 Cal.App.3d 1303, 1320), and assuming further that the state would bear the burden of proving such informed consent in the event the administration of such drugs were challenged, the state bore no such burden in the present case, because defendant did not raise the issue in the trial court. Defendant asserts that the court in Riggins v. Nevada, supra, 504 U.S. 127 held “that the State may not prosecute a capital defendant who is being medicated with antipsychotic drugs while in its custody, and under color of State authority, without first formally justifying the continued drugging of that defendant during his trial.” The holding in Riggins was not nearly so broad. Riggins simply held that “once Riggins moved to terminate administration of antipsychotic medication, the State became obligated to establish the need for Mellaril and the medical appropriateness of the drug.” (Riggins v. Nevada, supra, 504 U.S. 127, 135 [112 S.Ct. 1810, 1815].) Defendant cites no authority, and we are aware of none, that would require the state to demonstrate, sua sponte, that a criminal defendant has furnished informed consent for any antipsychotic medications provided by the state. Defendant contends he was denied due process of law because the state did not accord him the “substantive and procedural protections” guaranteed by the decisions in Washington v. Harper, supra, 494 U.S. 210 and Riggins v. Nevada, supra, 504 U.S. 127. Washington v. Harper, supra, 494 U.S. 210, 227 [110 S.Ct. 1028, 1039-1040], held that a mentally ill prisoner may be medicated against his will with antipsychotic drugs “if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” If the inmate refuses such treatment, the state must provide “procedural protections ... to ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous under the standards” discussed above. (Id. at p. 228 [110 S.Ct. at p. 1040].) Riggins v. Nevada, supra, 504 U.S. 127, 135 [112 S.Ct. 1810, 1815], held that the rule announced in Harper applies to pretrial detainees. (Cf. Riese v. St. Mary’s Hospital & Medical Center, supra, 209 Cal.App.3d 1303, 1308 [patients involuntarily committed to mental health facilities must furnish informed consent to the administration of antipsychotic drugs].) Neither Harper nor Riggins held that the procedural protections discussed in those decisions were required when a prisoner or detainee consents to the administration of antipsychotic drugs. The opinion in Harper notes that the defendant initially consented to the administration of antipsychotic drugs. It was only when the defendant later refused to continue the medication, and the state sought to continue the medication over his objections, that the treatment became involuntary and a hearing was required. (Washington v. Harper, supra, 494 U.S. 210, 213-215 [110 S.Ct. at 1028, 1032-1033].) Similarly, the defendant in Riggins initially consented to take an antipsychotic drug, but later moved the trial court to suspend administration of the drug. The United States Supreme Court agreed that “once the District Court denied Riggins’ motion to terminate use of Mellaril, subsequent administration of the drug was involuntary.” (Riggins v. Nevada, supra, 504 U.S. 127, 133 [112 S.Ct. 1810, 1814].) Unlike Harper and Riggins, the present case does not involve a defendant who refused his medication, or moved the court to cease his medication, during the guilt, sanity or penalty phases of his trial. When defendant earlier refused his medication, administration of the medication ceased. When defendant refused his medication in 1988, just prior to the guilt phase of his trial, it was changed at his request and was resumed only once he had consented. For all of the foregoing reasons, it does not appear that defendant was denied due process of law under the decision in Riggins v. Nevada, supra, 504 U.S. 127. For those same reasons, we reject as well defendant’s cursory arguments that his ingestion of antipsychotic drugs denied him his rights, under the Eighth and Fourteenth Amendments to the United States Constitution, to an individualized and reliable sentencing determination. Defendant further argues that, even if he voluntarily ingested antipsychotic drugs, “his rights to effective assistance of counsel, to present evidence, to testify, to confront witnesses, to due process, to a fair trial, and to a reliable sentencing determination, under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, were all violated.” Defendant reasons that if a criminal defendant is being administered medication to control a mental illness, “and that medication substantially-interferes with his ability to exercise his constitutionally guara