People v. Hernandez CA3 ( 2022 )

Filed 11/9/22 P. v. Hernandez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent, C094814
v. (Super. Ct. No.
CRF20156956)
MICHAEL ISAIAH HERNANDEZ,
Defendant and Appellant.
The People charged defendant Michael Isaiah Hernandez with various crimes after
he sexually assaulted and severely injured his former girlfriend. Prior to trial, the trial
court found many times that defendant lost and then regained competency to stand trial.
It twice confined him to a state hospital, and it authorized hospital staff to involuntarily
administer antipsychotic medication.
Shortly before the jury rendered its verdict in the guilt phase of trial, defense
counsel again expressed a doubt about defendant’s competence. The trial court declined
to hold another hearing to evaluate defendant’s competence, explaining that it had not
heard anything new.
1
The jury found defendant guilty on all but one count and found him sane at the
time of his offenses. The trial court sentenced defendant to an aggregate determinate
term of 22 years four months and an aggregate indeterminate term of life with the
possibility of parole.
Defendant now contends (1) the trial court should have held another hearing to
evaluate defendant’s competency to stand trial, and (2) there is insufficient evidence to
support the jury’s findings that (A) he was sane at the time he assaulted his former
girlfriend, and (B) that he attempted to dissuade a witness from making a report to law
enforcement.
We agree with defendant’s first contention and reject the remaining two. When a
formerly incompetent defendant has been restored to competence through medication,
evidence that the defendant is no longer taking his medication and is again exhibiting
signs of incompetence will generally establish a change in circumstances and calls for
additional investigation before trial may proceed. (People v. Rodas (2018) 6 Cal.5th 219,
223 (Rodas).) Because the facts in this case establish such a change in circumstances, the
trial court needed to suspend proceedings and conduct a further competency hearing. We
will reverse the judgment.
BACKGROUND
A
The trial court divided the trial into two phases: a guilt phase to consider whether
defendant committed the charged crimes, and a sanity phase to consider whether
defendant was sane at the time he committed the alleged offenses. (See § 1026,
subd. (a).)
In the guilt phase, E.M. testified that she had known defendant for a decade
and dated him on and off for four years. Her testimony focused on the events of
November 28, 2015. At that time, she was 16-years-old and defendant was 18-years-old.
A few months before, the two had broken up around a time when defendant started acting
2
odd. E.M. understood that defendant had been diagnosed with schizophrenia and bipolar
disorder and had concerns about his mental health.
After their separation, E.M. and defendant remained close friends. On
November 28, 2015, they met at a library and then grabbed food at a McDonald’s. After
eating, E.M. told defendant she needed to go home. Defendant carried her backpack but,
when E.M. asked for it back, he refused to give it to her and walked in the direction
opposite her destination. He then told her to go with the flow, refused to explain where
they were going, and asked why she needed to walk in the other direction.
On passing the gate of a cemetery, E.M. again asked about their destination.
Defendant called her a bitch, said she was being dramatic, and said they were going to a
vacant house where he had lived. But defendant instead pulled her into a narrow
passageway in the cemetery. He choked her, tried to kiss her, and tried to put his hands
down her pants. He told E.M. to pull her shirt down and, when she refused, he pulled her
shirt down and bit her breast. He told her to just let it happen, but she continued to try to
break free. Defendant said he did not want to hurt her, he loved her, and he wanted her.
Defendant pulled E.M. deeper into the cemetery and behind a mausoleum. He
threw her to the ground, pinned her arms down with his knees, and got on top of her. He
told E.M. to “give it up,” which she understood to mean he wanted to have sex with her.
He pulled out his penis, indicated he wanted to place it in her mouth, and threatened to hit
her if she bit it. When E.M. tried to avoid his penis, defendant hit her about five times.
E.M. told defendant he was hurting her, but he said, “Fuck that,” and continued hitting
her. She screamed for help.
E.M. attempted to escape defendant and ran toward the cemetery’s exit.
Defendant caught her and threw her to the ground. He choked her, pulled off her
leggings, said he was a pimp, and told her to let it happen. After defendant continued to
physically abuse E.M., including stomping on her face and stomach, E.M. agreed to go
with him to the vacant house. Defendant held her hair as they left the cemetery and
3
walked down the street. E.M. begged bystanders to call the police, saying defendant was
trying to rape her and she was only 16-years-old. Defendant denied trying to rape her
and told her to shut up. According to E.M., he told a man, “No cops.”
Two witnesses testified about seeing defendant and E.M. One saw an escalating
argument between a male and a female, returned to her home, and told a friend to monitor
the situation or call 911. She then called a nonemergency police line and said she saw a
male push a female into the cemetery while the female screamed “No.” Another
bystander saw a man pulling a bloodied and half-naked girl down the street by her hair.
The girl screamed for help but, every time she did, the man punched her two or three
times and then continued pulling her down the street. The bystander called 911, chased
after the two, and yelled at the man to let her go. The man eventually let the girl go and
fled.
The assault left E.M. with bleeding in her brain, a broken nose, bruising around
her right eye, abrasions to both forearms, and an injury to her large intestine.
The People charged defendant with kidnapping for rape and oral copulation
(Pen. Code, § 209, subd. (b)(1)),1 assault with intent to commit a sex crime on a minor
(§ 220, subd. (a)(2)), false imprisonment with force and violence (§§ 236, 237, subd. (a)),
sexual battery (§ 243.4, subd. (a)), infliction of corporal injury on a former dating partner
(§ 273.5, subd. (a)), kidnapping (§ 207, subd. (a)), attempting to prevent or dissuade a
witness by force or threat from making a report to law enforcement (§ 136.1,
subd. (c)(1)), and attempting to prevent or dissuade a witness from making a report to law
enforcement (§ 136.1, subd. (b)(1)). The information also alleged that defendant inflicted
great bodily injury within the meaning of section 12022.8 in connection with the assault
charges, and that he inflicted great bodily injury within the meaning of section 12022.7,
1 Undesignated statutory references are to the Penal Code.
4
subdivision (e) when he inflicted corporal injury on a former dating partner. Defendant
ultimately pleaded not guilty by reason of insanity.
The jury found defendant not guilty on one of the two counts for attempting to
prevent or dissuade a witness, but found him guilty on the remaining counts. The jury
also found true the enhancement allegations.
B
Before the start of trial, the trial court found that defendant lost and regained
competency a number of times. It first declared a doubt about his competence in late
2015, and subsequently found him incompetent, after a psychologist (Dr. Juliana Rohrer)
twice found him incompetent following two separate evaluations. During the first
evaluation, Dr. Rohrer found defendant “laying on his bunk with his head under the
covers.” Although defendant removed the covers when Dr. Rohrer approached, he
refused to speak to her. During the second evaluation, defendant again refused to speak
to Dr. Rohrer. After both evaluations, Dr. Rohrer wrote that defendant’s unwillingness to
participate in a psychiatric evaluation, to sign for a release of information on his medical
history, and to speak to his attorney “is indicative of very poor judgment”—which “is
often a symptom [of] a psychotic condition.” She added that defendant “is currently
unwilling to cooperate in a rational manner with counsel in presenting a defense.”
Following a court-ordered commitment to a state hospital in May 2016, the
hospital diagnosed defendant with two mental disorders—bipolar disorder with psychotic
features and antisocial personality disorder. After a period of involuntary administration
of an antipsychotic medication, the hospital found defendant cooperative, recommended
he be returned to court as competent to stand trial, and recommended he “remain on his
prescribed medications.” In August 2016, the trial court found defendant competent and
reinstated proceedings.
In January 2017, the trial court again declared a doubt about defendant’s
competence. Dr. Rohrer again attempted to evaluate defendant. Although defendant at
5
first refused to leave his cell, he eventually agreed to meet Dr. Rohrer. But after Dr.
Rohrer explained the purpose for her visit, he told her, “I don’t want to talk with you.”
He also told an officer, “I won’t talk to her,” and instructed the officer to relay the
message to Dr. Rohrer. After this limited observation, Dr. Rohrer found defendant
competent. She stated, as in her prior reports, that defendant’s unwillingness to
participate in a psychiatric evaluation and to sign for a release of information on his
medical history “is indicative of very poor judgment,” which “is often a symptom of a
psychotic condition.” But this time, she added that his conduct “could also be due to
antisocial behavior” and that defendant’s behavior probably stemmed from antisocial
traits. In reaching this conclusion, she found it significant that he “exhibited a clear
thought process, had specific goals in mind[,] followed instructions when he wanted to do
so,” “clearly instructed others to do his bid[d]ing,” and exhibited no signs of psychosis.
But she emphasized her conclusion was based on limited information -- she only briefly
observed defendant and had not been given any records to confirm a psychotic disorder,
including no records from his recent commitment at the state hospital. Following a
competency hearing in February 2018, where defendant testified and expressed an
understanding of the nature of the proceedings, the trial court found him competent and
reinstated proceedings.
In August 2018, the trial court declared doubt for the third time after defense
counsel said defendant failed to understand the trial process. Before the scheduled
competency hearing In October 2018, a psychiatrist (Dr. Captane Thomson) sought to
meet with defendant but, as with Dr. Rohrer, defendant refused to speak to him. After
reviewing defendant’s paper history, including the records from his treatment at the state
hospital, Dr. Thomson concluded that “he will require further psychiatric evaluation and
treatment to help restore his capacity to cooperate rationally with counsel in the
preparation of his defense.” Dr. Thomson afterward attempted to speak to defendant on
the day of the competency hearing, but defendant only said, “I plead the Fifth.” As in the
6
earlier competency hearing, defendant testified and expressed an understanding of the
nature of the proceedings. He also, when asked why he refused to speak to Dr. Thomson,
claimed he “did want to talk to the doctor.” (Italics added.) But when asked why he
nonetheless did not speak to Dr. Thomson, he said, “[I]t wasn’t important.” He then
added, “I’m a doctor”; “I’ve been a doctor as of 2010.” At the close of the hearing, the
trial court again found defendant competent and reinstated proceedings. Although it
accepted that defendant had a mental disorder and that it may be difficult to have
sustained communications with him “because of the psychosis,” it found the evidence
insufficient to find defendant incompetent.
In May 2019, the trial court declared doubt for the fourth time after defense
counsel noted defendant’s attempted escape from jail, his refusal to speak with counsel,
his stated belief that he was at court because he was the victim of a sexual assault, and his
general demeanor and incoherence. Dr. Rohrer afterward found defendant incompetent.
Although defendant agreed to speak with Dr. Rohrer, he had difficulty talking with her
and appeared to respond to “internal stimuli.” He also at times gave nonsensical answers
(e.g., he tried to escape jail because of “culture shock”), was delusional (e.g., he thought
he was younger than he was), laughed for no reason, silently moved his lips “as if talking
with someone who was not there,” and tracked with his eyes “something that was not
there.” Dr. Rohrer added that defendant exhibited signs of paranoia, such as refusing to
speak with clinicians and attorneys trying to help him. Under the circumstances, she
found defendant was “not able to cooperate in a rational manner with counsel in
presenting a defense.” After considering Dr. Rohrer’s report, along with the parties’
agreement on the matter of incompetence, the trial court found defendant incompetent in
July 2019.
For nearly a year afterward, defendant remained in treatment and subject to a court
order authorizing involuntary administration of an antipsychotic medication. He was first
admitted to a competency treatment program and diagnosed with unspecified
7
schizophrenia spectrum and other psychotic disorders. He was afterward committed to a
state hospital and diagnosed with schizophrenia and amphetamine-type substance abuse
disorder. At the hospital, he claimed he was 19 (he was 22), thought the year was 2001
(it was 2020), occasionally appeared to respond to internal stimuli, occasionally appeared
delusional and confused, evidenced disorganized thinking, had difficulty communicating,
and had difficulty understanding his charges, pleas, and the role of some of the courtroom
players. He also, among other things, declined staff efforts to explain the charges against
him, reasoning first that his mother “knew information in the police report that she would
tell him” and later that he had no need to hear the charges because his case was closed,
saying “my mom is here to pick me up.”
After several months in the state hospital, and despite the administration of
antipsychotic medication, the hospital informed the trial court that defendant was not yet
competent to stand trial. The hospital explained that defendant would likely regain
competence with continued treatment, and that without such treatment he likely would
not.
After several more months of treatment, the hospital found defendant cooperative,
competent, and able to assist his counsel. Although defendant initially said he did not
like his attorney because the attorney continued his case, defendant subsequently said he
understood his attorney could have had valid reasons for his actions and defendant would
“consult with his attorney on his best course of action.” The trial court found defendant
competent in July 2020.
In October 2020 the trial court ordered another mental health evaluation for a
purpose other than evaluating defendant’s competency to stand trial. It directed a
psychologist, Dr. Robert Wagner, to evaluate, among other things, whether defendant
was sane at the time he committed the alleged offenses and whether he had improved
to such an extent that he was no longer a danger to the health and safety of others.
Dr. Wagner afterward attempted to perform the evaluation but, like with Dr. Rohrer and
8
Dr. Thomson, found defendant unwilling to speak to him. Attempting to perform his
evaluation without speaking to defendant, he learned defendant stopped taking
medication in July 2020 immediately upon return to the county jail from hospital custody.
After reviewing jail records, Dr. Wagner said defendant generally appeared to perform
well despite being unmedicated for his schizophrenia, but he noted one apparent active
symptom of his illness: an inability to cooperate. He said the only thing that brought
about cooperation was involuntary medication, adding: “If an involuntary order can be
made for the administration of medication for [defendant], that will likely restore him to
competency without the need for rehospitalization.”
In June 2021, the trial court ordered the local sheriff’s department to transport
defendant to court for trial. When a lieutenant visited defendant’s cell and informed him
of the trial court’s order, defendant was lying down under a blanket. Defendant pulled
the blanket down to see who was speaking to him, but when the lieutenant told him he
needed to go to court, defendant pulled the blanket back up over his head. Defendant
said “yes” when asked if he understood the order and, according to the lieutenant,
indicated he understood that he could ask correctional staff to transport him. Based on
this conduct and defendant’s alleged inability to assist in the defense, defense counsel
expressed a doubt about defendant’s competence, adding that he always believed
defendant was incompetent. But defense counsel indicated he had no other new
information, and it appears the trial court did not understand defense counsel to be asking
for another competency hearing. The trial took place in June 2021.
Shortly before the jury rendered its verdict on guilt, defense counsel again
expressed a doubt about defendant’s competence. Defense counsel briefly spoke to
defendant after defendant asked to be transported to court. According to defense counsel,
defendant understood that defense counsel served as his attorney. But when asked
questions on topics such as the nature of the proceedings and the role of a judge,
defendant did not respond. According to defense counsel, defendant was bouncing
9
around like he was extremely nervous and was generally nonresponsive. He was also
very disheveled and appeared not to have groomed himself in quite some time. The trial
court declined to declare a doubt, explaining that it had not heard anything new.
C
After the guilt phase of the trial, the trial court proceeded to the sanity phase, in
which the jury considered defendant’s defense of insanity. That is, it considered whether
the evidence showed that defendant, because of his mental disorder, was incapable of
knowing or understanding the nature and quality of his acts or of distinguishing right
from wrong at the time of his crimes. (See § 25, subd. (b).)
Defendant’s grandmother testified that defendant talked to himself and isolated
himself from others in the weeks before he assaulted E.M. She also said he was
paranoid, scared, and expressed concern that people would come and get him. She added
that her mother and niece are schizophrenic. In addition, defendant’s sister testified
defendant was a “different person” in the weeks before the assault, though she struggled
to provide details.
Two experts also testified. Dr. Thomson, a psychiatrist with decades of
experience, testified for defendant. Dr. Wagner, a clinical psychologist who also had
decades of experience, testified for the prosecution. Neither expert had an opportunity to
meet with defendant, as defendant rejected both their efforts to meet.
Dr. Thomson began with a review of defendant’s mental health records. At
age 14, defendant presented with oppositional defiance disorder, which can be marked
by aggression. Over a year later, a doctor diagnosed defendant with psychosis, mood
disorder, and major depressive disorder with psychotic features. A month later, after
defendant reported suicidal thoughts attributable to being molested by a man when he
was 13-years-old, a county mental health staff member diagnosed defendant with post-
traumatic stress disorder and depressive symptoms. A month later, another county
mental health staff member diagnosed defendant with a psychotic disorder and a mood
10
disorder after defendant reported hearing voices that told him to kill himself and others.
Seven months later, a psychiatrist diagnosed defendant with acute psychosis and
prescribed him antipsychotic medication after defendant reported auditory hallucinations
and an uncontrollable desire to hurt himself. A month later, after defendant caused
himself to bleed while incarcerated, a psychologist diagnosed him with post-traumatic
stress disorder (perhaps attributable to being forcefully sodomized in the past) and
provisionally diagnosed him with unspecified schizophrenia or other psychotic disorder.
After summarizing defendant’s mental health history, Dr. Thomson stated that
defendant likely had schizophrenia, a mental health illness with symptoms including
disorganized thoughts, perceived threats, social withdrawal, and an inability to express
emotions. Dr. Thomson found defendant’s conduct to be an example of someone
suffering from a major mental illness, likely schizophrenia. But he added that, the mental
illness notwithstanding, some of defendant’s conduct tended to show that he nonetheless
understood his conduct was wrong and did not want the police called. That included
defendant’s threatening consequences to E.M. and telling her to shut up when she asked
bystanders to call the police.
Dr. Wagner also testified that defendant had a severe mental disorder, likely
schizophrenia. He testified that schizophrenics, despite their disorder, can still
understand the nature and quality of their acts and distinguish right from wrong. After
considering conduct like defendant’s in the form of a hypothetical, he testified that such
conduct tended to show the actor both understood the nature and quality of his acts and
was able to distinguish right from wrong at the time he acted. He stated, for instance, that
capturing a victim, bringing her to a private area, and telling her to give it up after
removing her leggings, would show the actor knew the nature and quality of the act in
which he was trying to engage.
The jury found defendant sane at the time of the offenses.
11
DISCUSSION
I
Defendant contends the trial court should have held another hearing to evaluate his
competence in June 2021.
A
Section 1367 prohibits a trial court from trying or convicting a criminal defendant
who is mentally incompetent -- who, as a result of a mental health disorder or
developmental disability, is unable to understand the nature of the criminal proceedings
or to assist counsel in the conduct of a defense in a rational manner. (Id., subd. (a).)
The constitutional guarantee of due process imposes the same prohibition. (Rodas,
supra, 6 Cal.5th at p. 230; see also Drope v. Missouri (1975) 420 U.S. 162, 172
[43 L.Ed.2d 103] [the “test of incompetence . . . seeks to ascertain whether a criminal
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” ’ ”].)
Section 1368, among other statutes, describes the procedure for evaluating a
defendant’s potential incompetence. It “requires that criminal proceedings be suspended
and competency proceedings be commenced if ‘a doubt arises in the mind of the judge’
regarding the defendant’s competence ([§ 1368], subd. (a)) and defense counsel concurs
(id., subd. (b)).” (Rodas, supra, 6 Cal.5th at p. 231.) The California Supreme Court “has
construed that provision, in conformity with the requirements of federal constitutional
law, as meaning that an accused has the right ‘to a hearing on present sanity if he comes
forward with substantial evidence that he is incapable, because of mental illness, of
understanding the nature of the proceedings against him or of assisting in his defense.’
[Citation.] ‘Once such substantial evidence appears’ ” -- that is, once evidence raising a
reasonable or bona fide doubt as to competence appears -- “ ‘a doubt as to the sanity of
12
the accused exists, no matter how persuasive other evidence . . . may be to the contrary.’
[Citation.]” (Ibid.)
A trial court’s duty to conduct a competency hearing may arise at any time prior to
judgment, even if the defendant has already been deemed competent at a prior hearing.
(Rodas, supra, 6 Cal.5th at p. 231.) But once a defendant is found competent to stand
trial after a competency hearing, a trial court may rely on that finding unless presented
with a substantial change in circumstances or new evidence casting a serious doubt on the
validity of that finding. (Ibid.) The requirement of a substantial change in circumstances
or new evidence serves “to make clear that the duty to suspend is not triggered by
information that substantially duplicates evidence already considered at an earlier, formal
inquiry into the defendant’s competence; when faced with evidence of relatively minor
changes in the defendant’s mental state, the court may rely on a prior competency finding
rather than convening a new hearing to cover largely the same ground.” (Id. at pp. 234-
235.)
B
Defendant argues the trial court was presented with substantial evidence of his
incompetence in June 2021 and that the circumstances at that time had substantially
changed from those prevailing in July 2020, when defendant was last found competent to
stand trial.
All the experts who evaluated defendant found him incompetent to stand trial
during the periods when he was unmedicated. Dr. Rohrer, who first evaluated defendant
in January 2016, initially found him incompetent after he refused to participate in a
psychiatric evaluation, to sign for a release of information on his medical history, and to
speak with his attorney. She found all that indicative of very poor judgment which she
said is often a symptom of a psychotic condition. She later repeated those findings in a
subsequent evaluation. Although, after her third evaluation in July 2017, Dr. Rohrer
deemed defendant competent, she found him incompetent after obtaining more
13
information in July 2019. At that time she found defendant had difficulty talking with
her, appeared to respond to internal stimuli, occasionally gave nonsensical answers, and
was delusional. She found that he presented as paranoid in stating he did not trust his
attorney and in refusing to speak to his attorney. Considering these symptoms, Dr.
Rohrer diagnosed defendant with mood disorder and other specified schizophrenia
spectrum and other psychotic disorder. Dr. Thomson reached a similar conclusion in
September 2018, that defendant suffered from a psychosis and was incompetent.
The state hospital also found defendant incompetent during two separate
commitments. In the first commitment, hospital staff diagnosed defendant with bipolar
disorder with psychotic features and antisocial personality disorder; and in the second
commitment, staff diagnosed him with schizophrenia and amphetamine-type substance
abuse disorder. During both commitments, the hospital found defendant incompetent to
stand trial before the forced administration of medications, stating, for instance, that
defendant had difficulty communicating and was occasionally delusional. Although the
hospital found medication ultimately returned defendant to competency during both
commitments, it recommended that defendant remain on his prescribed medications and
explained that defendant’s illness required treatment with psychotropic medications.
Following defendant’s release after the second of his hospital commitments,
Dr. Wagner found him incompetent in November 2020. After defendant refused to speak
with him, Dr. Wagner learned that defendant stopped taking his medication immediately
after he left hospital custody and returned to the county jail. Dr. Wagner noted that
defendant generally appeared to perform well despite being unmedicated for his
schizophrenia, but found that defendant nonetheless appeared to have one active
symptom of his illness: an inability to cooperate. He added: “The only thing that has
brought about cooperation is involuntary medication.” He then wrote: “If an involuntary
order can be made for the administration of medication for [defendant], that will likely
restore him to competency without the need for rehospitalization.”
14
This record was known to the trial court when it declined to declare a doubt in
June 2021. At that time, the trial court had before it Dr. Wagner’s report showing that
defendant had ceased taking his medication, that defendant appeared unable to cooperate
because of his schizophrenia, and that further involuntary medication would be necessary
to restore his competency. The trial court also knew that defendant had repeatedly
refused to speak to his counsel during this time and behaved oddly when he finally
agreed to see his counsel. During that meeting, according to defense counsel, defendant
understood that defense counsel was his attorney. But when asked questions on topics
such as the nature of the proceedings and the role of a judge, defendant did not respond;
he was bouncing around like he was extremely nervous and generally nonresponsive.
Defense counsel added that defendant was very disheveled and appeared not to have
groomed himself in quite some time.
“Taken as a whole, this information constituted substantial evidence of mental
incompetence. The facts made known to the trial court raised a reasonable doubt as to
whether defendant was able to communicate rationally with his attorney and thus ‘to
assist counsel in the conduct of a defense in a rational manner.’ [Citation.]” (Rodas,
supra, 6 Cal.5th at p. 233.)
The People argue to the contrary, noting that in declining to a declare a doubt
under these circumstances, the trial court said defense counsel had offered nothing new
since the earlier finding of competence in July 2020. According to the trial court,
defendant had often refused to meet with defense counsel. But as far as we can tell from
the record, defendant refused to meet with his counsel at times when he was
unmedicated. Nothing in the record suggests he refused to meet at times when he was
medicated. And although the record shows he generally refused to cooperate with mental
health professionals while unmedicated, it shows he generally cooperated with medical
professionals when he received antipsychotic medications. That suggests defendant’s
failure to cooperate stemmed largely from his untreated mental disorder rather than from
15
an unwillingness to cooperate. Dr. Wagner’s findings in November 2020 support this
conclusion.
The People nevertheless point to Dr. Rohrer’s 2017 report as evidence that
defendant’s lack of cooperation stemmed from an unwillingness rather than an inability
to cooperate. It is true that Dr. Rohrer indicated at the time that defendant’s refusal to
meet with his counsel probably followed from his antisocial behavior and an
unwillingness to cooperate, not a psychotic condition. But she also noted that she had no
records to confirm a psychotic disorder and only a brief interaction with defendant. Two
years later, Dr. Rohrer had more information and concluded that defendant’s failure to
cooperate with his counsel evidenced paranoia, not merely antisocial behavior, and his
mental disorder precluded him from assisting his counsel.
Dr. Rohrer’s later findings resulted in defendant being committed to a state
hospital and involuntarily medicated for nearly a year. When defendant ceased taking his
medication following his release from hospital custody in July 2020, refused to meet with
his counsel, and decided to remain under a blanket in his cell rather than show for trial,
that tended to show that circumstances had changed substantially since the last
competency hearing in July 2020.
We are sympathetic to the difficulty a trial court faces in managing a case such as
this with a defendant who repeatedly cycles on and off of medication. But we must also
follow controlling law, including the guidance from the California Supreme Court. On
this record, the trial court should have conducted another competency hearing under
section 1368. As the Supreme Court explained, “[a]s a general rule, once a defendant has
been found competent to stand trial, a trial court may rely on that finding absent a
substantial change of circumstances. But when a formerly incompetent defendant has
been restored to competence solely or primarily through administration of medication,
evidence that the defendant is no longer taking his medication and is again exhibiting
signs of incompetence will generally establish such a change in circumstances and will
16
call for additional, formal investigation before trial may proceed.” (Rodas, supra,
6 Cal.5th at p. 223.) Those are the facts of this case. Defendant ceased taking his
medication and exhibited renewed signs of incompetence sufficient to establish the
requisite substantial change in circumstances. “In the face of such evidence, [the] trial
court’s failure to suspend proceedings violate[d] the constitutional guarantee of due
process in criminal trials.” (Ibid.)
C
Having concluded that the trial court should have suspended proceedings to
conduct another competency hearing, we now address the remedy. Defendant claims we
must reverse his convictions, but the Attorney General argues we should remand the
matter to the trial court to determine whether a retrospective competency hearing is
feasible. We agree with defendant.
“[A] retrospective competency trial provides a defendant with an opportunity to
have a competency trial comparable to the one the defendant should have been given but
was denied -- one in which the defendant would have had the burden of proof.” (People
v. Wycoff (2021) 12 Cal.5th 58, 93.) But if the defendant will not be placed in a position
comparable to the one he would have been in, a retrospective competency trial is not
feasible. (Id. at p. 94.) To determine feasibility, courts consider (1) passage of time,
(2) availability of evidence, including medical records and prior competency
determinations, (3) statements by defendant in the trial record, and (4) availability of
witnesses, both expert and non-expert. (Ibid.)
Considering the facts here, we conclude it is not feasible to conduct a retrospective
competency trial. “[T]he dominant considerations are the fluctuating nature of
defendant’s symptoms, the passage of time, and the lack of contemporaneous expert
evaluations.” (Rodas, supra, 6 Cal.5th at p. 240.) The most recent expert evaluation, as
the Attorney General notes, occurred about seven months before trial. The trial occurred
a little over a year ago. But the record shows that defendant fluctuated between
17
competency and incompetency during relatively short periods of time. In October 2018,
for instance, the trial court deemed defendant competent, but seven months later the trial
court declared a doubt and ultimately found him incompetent. In July 2020, the trial
court again deemed defendant competent, but five months later, Dr. Wagner found
defendant incompetent after he ceased taking his medications.
Under these circumstances, “it is difficult to see how a psychologist or psychiatrist
appointed to make a retrospective evaluation could reliably find defendant was
nonetheless competent at the time of trial.” (Rodas, supra, 6 Cal.5th at p. 241.) That is
particularly true given that the most recent expert evaluation -- Dr. Wagner’s evaluation
seven months before trial -- found that defendant appeared incompetent. Because the
trial court could not fairly come to a reliable conclusion that defendant was competent
during trial, we decline to remand for a retrospective evaluation.
II
Defendant next contends there is insufficient evidence to support the jury’s
findings (A) that he was sane at the time of his crimes, and (B) that he attempted to
dissuade a witness from making a report to law enforcement in violation of section 136.1.
Although our conclusion in part I above already requires reversal, consideration of these
additional arguments is necessary because, if defendant’s claims here are persuasive,
principles of double jeopardy would limit the scope of any subsequent prosecution.
(People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 62, 78; see also id. at p. 72
[“double jeopardy ‘prohibits retrial after a conviction has been reversed because of
insufficiency of the evidence’ ”]; id. at p. 72, fn. 14 [a defendant “may preserve for
himself whatever double jeopardy benefits accrued in his first trial notwithstanding some
fatal defect in the proceedings”].)
A
We turn first to the jury’s finding that defendant was sane at the time of the crime.
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Under California law, persons who are mentally incapacitated are deemed unable
to commit a crime as a matter of law. (§ 26, par. Two.) Mental incapacity under section
26 is determined by the M’Naghten test for legal insanity set forth in section 25,
subdivision (b). (See M’Naghten’s Case (1843) 8 Eng.Rep. 718, 722.) Under that
standard, insanity is established if the defendant was unable to understand the nature and
quality of the criminal act, or to distinguish right from wrong when the act was
committed. (People v. Elmore (2014) 59 Cal.4th 121, 140.) We review a jury’s finding
that a defendant was sane at the time of the offenses for substantial evidence. (People v.
Powell (2018) 5 Cal.5th 921, 957 (Powell).) We consider the entire record in the light
most favorable to the jury’s determination and affirm if the determination is supported by
evidence that is reasonable, credible and of solid value. (Ibid.)
Substantial evidence supports the jury’s finding that defendant was legally sane at
the time of his crimes. Two experts testified on the topic: Dr. Thomson testified for
defendant, and Dr. Wagner testified for the prosecution. Both agreed defendant suffered
from a major mental illness, likely schizophrenia. Both also agreed defendant’s conduct -
- including his threats of consequences to E.M. and telling her to shut up when she asked
bystanders to call the police -- demonstrated an understanding that his actions were
wrong. Both experts, at the very least, indicated that defendant evidenced an ability to
distinguish right from wrong when he acted.
Dr. Wagner went further. He testified that schizophrenics, despite their disorder,
can still understand the nature and quality of their acts and distinguish right from wrong.
Then, after considering a hypothetical schizophrenic who engaged in defendant’s same
conduct, he concluded that the conduct demonstrated an understanding of both the nature
and quality of the acts and the legally and morally wrong nature of those acts. He
testified that capturing a victim, bringing her to a private area, and telling her “to give it
up” after removing her leggings would show the actor knew “the nature and quality of the
act that he was trying to engage in.” He testified that pulling a victim from a public street
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to a more private area would indicate trying to hide, trying to avoid being caught, and “go
to knowing whether or not something was morally or legally wrong.” And he testified
that fleeing after police were called, yelling at people not to call the police, and stating
consequences if the victim failed to do desired conduct, would all tend to show the actor
knew his actions were legally and morally wrong.
Such evidence was sufficient to support the jury’s finding of sanity. (See Powell,
supra, 5 Cal.5th at p. 957 [it is enough that a jury’s finding of sanity “is supported by
evidence that is reasonable, credible, and of solid value, from which a reasonable trier of
fact could find the defendant sane by a preponderance of the evidence”].)
Defendant nevertheless argues the expert testimony suffered from a material flaw,
in that neither expert had spoken with defendant. But defendant offers nothing showing
that mental health experts are incapable of rendering an opinion about a defendant when
the defendant refuses to speak with them. Nor do we find any reason for making this
conclusion here. The law, after all, generally permits experts to
“ ‘render opinion testimony on the basis of facts given “in a hypothetical question that
asks the expert to assume their truth.” ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 449
[adding that “ ‘a hypothetical question must be rooted in facts shown by the
evidence’ ”].)
Defendant further argues that his decision to go to a more private area for a sexual
encounter did not show that he understood the encounter to be morally or legally wrong,
it only showed that he understood public sex to be unacceptable. Defendant suggests the
former would evidence sanity while the latter would not, but we are not persuaded that
the distinction makes a difference in this context. In any event, Dr. Wagner concluded
that moving a victim to a more private area would tend to show that the actor understood
his actions were legally and morally wrong, and the jury was free to accept Dr. Wagner’s
interpretation of the evidence rather than defendant’s preferred interpretation. (See
Powell, supra, 5 Cal.5th at p. 958 [finding a jury could rely on two experts’ opinions on
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sanity when “their qualifications and the nature of their testimony” showed their opinions
“were of sufficient quality”].)
B
We turn next to the jury’s finding that defendant violated section 136.1.
Section 136.1, as relevant here, makes it a crime to attempt to prevent or dissuade
a crime victim from making a report of that victimization to a law enforcement officer.
(Id., subd. (b)(1).) In the trial court the prosecution argued defendant violated the statute
when he told E.M. to shut up and hit her after she yelled at bystanders to call the police.
Challenging the sufficiency of the evidence on appeal, defendant claims that telling E.M.
to shut up did not establish the specific intent to dissuade a crime report.
Considering the context of defendant’s instruction to shut up, we are satisfied that
defendant had the specific intent to prevent the reporting of a crime. E.M. testified that
she asked bystanders to “call the cops” because defendant was trying to rape her, and, in
response, defendant told her to shut up. E.M. also testified that defendant separately told
a man, “No cops.” On these facts, a jury could conclude that defendant had the specific
intent to prevent the reporting of a crime, the one matter defendant claims the evidence
fails to establish. (See People v. Wahidi (2013) 222 Cal.App.4th 802, 806 [“If the
defendant’s actions or statements are ambiguous, but reasonably may be interpreted as
intending to achieve the future consequence of dissuading the witness from testifying, the
offense has been committed.”].)
Defendant argues we cannot consider the evidence that defendant told a man “No
cops,” because that fact was the basis for a separate count on which the jury acquitted
him. While it is true that one of the counts for dissuading a witness was premised on
defendant’s alleged “[n]o cops” statement to an unknown man and that the jury acquitted
defendant on that count, there is no indication the jury acquitted defendant because it
concluded defendant did not make the statement. At trial, defense counsel never claimed
that defendant did not make the statement; he instead suggested the jury could acquit
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because that was all defendant said and nothing more. In any event, as we have
explained, that statement is not the only evidence that defendant violated section 136.1.
His contention lacks merit.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further
proceedings consistent with section 1368 and applicable law.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
KRAUSE, J.
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