What is the test for a court to order physical restraint of a mentally ill defendant?

Although "shackling is to be employed only as a last resort, based on 'a showing of manifest need for such restraints;' " (People v. Stankewitz (1990) 51 Cal.3d 72, 94-95, 270 Cal.Rptr. 817, 793 P.2d 23) a "court's shackling decision cannot be successfully challenged on review except on a showing of a manifest abuse of discretion." (Id. at p. 95, 270 Cal.Rptr. 817, 793 P.2d 23; Internal quotations omitted; People v. Sheldon (1989) 48 Cal.3d 935, 945, 258 Cal.Rptr. 242, 771 P.2d 1330.)

Appellant has shown no such abuse of discretion. As People v. Duran, the leading case on shackling, states: "An accused may be restrained, for instance, on a showing that he plans an escape from the courtroom or that he plans to disrupt proceedings by nonviolent means." (People v. Duran (1976) 16 Cal.3d 282, 292, fn. 11, 127 Cal.Rptr. 618, 545 P.2d 1322.) The trial court was entitled to conclude that appellant had done more than "plan" an escape or a disruption, he had attempted an escape and accomplished a disruption.

[230 Cal.App.3d 1427] Finally, the words of People v. Zatko are dispositive of appellant's contention: "[T]here is nothing in the record to indicate that the jury was even aware of the physical restraints. ⁴ 'It is elementary that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings....' " (People v. Zatko (1978) 80 Cal.App.3d 534, 551, 145 Cal.Rptr. 643.)

3. Appellant contends the trial court erred in not holding a competency hearing.

If the trial judge entertains a "doubt" concerning the mental competence of the defendant he must suspend criminal proceedings and conduct a competency hearing. ( 1368.) Even if the trial judge does not entertain such a doubt, when there is substantial evidence of defendant incompetency, a competency hearing is mandatory. (People v. Deere (1985) 41 Cal.3d 353, 357-358, 222 Cal.Rptr. 13, 710 P.2d 925, disapproved on other grounds by People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9, 259 Cal.Rptr. 669, 774 P.2d 698.) However, "[e]vidence that merely raises a suspicion that the defendant lacks present sanity or competence but does not disclose a present inability because of mental illness to participate rationally in the trial is not deemed 'substantial' evidence requiring a competence hearing. [Citations.] '[M]ore is required to raise a doubt [of competence] than mere bizarre actions or bizarre statements ... or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense.' " (Id. 41 Cal.3d at p. 358, 222 Cal.Rptr. 13, 710 P.2d 925.)