People v. Rodas , 239 Cal. Rptr. 3d 814 ( 2018 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DOMINGO RODAS,
Defendant and Appellant.
S237379
Second Appellate District, Division Three
B255598
Los Angeles County Superior Court
BA360125
November 26, 2018
Justice Kruger filed the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Kline concurred.
PEOPLE v. RODAS
S237379
Opinion of the Court by Kruger, J.
Defendant Domingo Rodas was found incompetent to stand
trial and ordered confined at a state hospital. After several
months of treatment with antipsychotic medication, hospital
physicians reported that defendant had regained trial
competence, but cautioned that it was important for defendant
to continue taking his medication. At the start of his jury trial
some months later, however, the trial court learned that
defendant had stopped taking his medication and that he had
begun communicating incoherently with counsel about defense
strategy, exhibiting some of the same symptoms he had
displayed during earlier episodes of incompetence. Defense
counsel declared a doubt about defendant’s competence, but the
trial court ruled that the trial could proceed after conducting a
brief colloquy with defendant in which defendant was able to
identify the charges against him and stated a willingness to go
to trial and work with counsel. Later, against counsel’s advice,
defendant testified in his own defense. The testimony was
incoherent and the court struck it as irrelevant. Defendant was
ultimately convicted on several counts and sentenced to
multiple life terms.
We conclude the trial court erred in failing to suspend the
criminal trial and initiate competency proceedings at the time
counsel declared a doubt as to her client’s competence. As a
general rule, once a defendant has been found competent to
stand trial, a trial court may rely on that finding absent a
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
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 call for additional,
formal investigation before trial may proceed. In the face of such
evidence, a trial court’s failure to suspend proceedings violates
the constitutional guarantee of due process in criminal trials.
(People v. Rogers (2006) 39 Cal. 4th 826, 847.)
I.
Rodas, also known by his birth name, Doudley Brown, was
charged with murdering Frederick Lombardo, Keith Fallin and
Roger Cota, and attempting to murder Kenneth McFetridge and
Ronald Vaughn. The victims were homeless men living on the
street in Los Angeles. All of the victims were stabbed over the
course of July and August 2009; four of the stabbings occurred
within a few hours in the same area of Hollywood. Defendant
was apprehended in the area carrying a knife. DNA from three
of the victims was found on the knife, its sheath, or defendant’s
shirt. A surviving victim later identified defendant from a
photographic lineup, and one of the fatal stabbings was captured
by surveillance cameras.
In February 2012, before trial began, the parties raised the
question of whether defendant was competent to stand trial.
The parties agreed to submit the question on the reports of two
experts, psychiatrist Kory J. Knapke and psychologist Sara
Arroyo, without any live testimony or argument. After
reviewing the reports, the trial court found defendant
incompetent to stand trial.
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Opinion of the Court by Kruger, J.
Only Dr. Knapke’s report is in the appellate record. The
report begins by recounting defendant’s psychiatric history. In
1974, when he was 19 years old and still known as Doudley
Brown, defendant was hospitalized in a military hospital for a
psychiatric disorder. He received a medical discharge from the
United States Army and a 30 percent disability rating for
psychiatric reasons. In 1984, he was found incompetent to stand
trial and was committed to Patton State Hospital (Patton) for
several months. In 1986, defendant returned to Patton when he
was found incompetent to stand trial on burglary charges. He
was later found competent and was convicted of those charges.
In 1988, at the end of his state prison sentence for burglary,
defendant was confined at Atascadero State Hospital
(Atascadero) and Patton under a mental health
conservatorship.1 He was diagnosed with schizophrenia,
paranoid type, and schizoaffective disorder with substance
abuse. At the hospitals, defendant refused to eat or drink,
explaining that “ ‘Lucifer would get him out of the hospital
sooner if he starved himself.’ ” On his admission to Atascadero,
he showed symptoms of “ ‘florid psychosis,’ ” with marked
disorganization to his thinking, and “ ‘speaking in nonsensical
terms or word salad with legalistic flavor.’ ” For example, he
kept repeating the statement, “ ‘I will have to have my mother
review, for I need a legal recourse for my faculties, recourse of
legal testament for legal statements of my personage. I don’t
commit to answer any tests for legal recourse of degree of
1
Under Penal Code section 2974, an inmate who has been
released from prison may be placed in a state hospital if a
danger to himself, herself, or others, or gravely disabled as a
result of a mental disorder, and if he or she does not come within
the provisions of the Mentally Disordered Offender Act.
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recourse of trial. I did not answer questions. I do not recognize
you as being a doctor by personage testimony witness offers.’ ”
Dr. Knapke’s report noted that defendant had been
examined by Dr. Arroyo in 2011. According to Knapke, Arroyo
found that “defendant’s thought processes were fragmented,”
that he could not rationally cooperate with his attorney, and
that he was therefore incompetent to stand trial. Dr. Knapke
reached a similar conclusion after examining defendant in
January 2012. At the start of the examination, defendant
immediately began “rambling in a nonsensical manner” about
needing photographs and fingerprints from Patton to prove he
had never been there. Dr. Knapke asked about defendant’s
current charges but defendant did not answer on that subject,
instead becoming increasingly agitated. Defendant insisted he
was not the person Knapke was talking about and yelled,
“ ‘You’re accusing me of being at a hospital.’ ” When asked
whether he believed he suffers from a mental illness, defendant
responded, “ ‘You’re basing it on wrong identification. The court
should verify that I’ve never been [at] Patton State Hospital.’ ”
Dr. Knapke’s report summarized defendant’s condition
succinctly, describing defendant as “psychotic and paranoid . . .
and does not make any sense.” Because defendant could not
rationally cooperate with his attorney or participate in court
proceedings, Dr. Knapke concluded, he was incompetent to
stand trial. With “zero insight into his mental illness and need
for medications,” Dr. Knapke wrote, defendant “will require
involuntary medications.” On a face sheet addendum to his
report, Knapke indicated that if untreated with medication,
defendant “probably will suffer serious harm to his . . . physical
or mental health,” but “[p]sychotropic medication will likely
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restore this person to a state of mental [c]ompetency to stand
trial.”
Clinical staff at Patton submitted a progress report to the
court in May 2012. Staff noted that when defendant was
admitted the previous month, he presented with psychotic
symptoms including disorganized speech and thought and
paranoia. He had been prescribed psychotropic medication to
control those symptoms and stabilize his mood. Although he
was compliant with the medication regimen, he had not yet been
restored to competence.
In a second report, dated October 2012, staff noted that
defendant continued to show symptoms of schizophrenia,
including “tangential and circumstantial thought processes, and
disorganized non-sensical speech.” With psychotropic
medications, defendant had “demonstrated some symptom
stabilization,” though not to the point of restored trial
competence. Due to his confused thought and speech patterns,
defendant was still unable to “logically and meaningfully assist
his attorney” or to “appreciate his legal situation in a
meaningful way.” He showed some progress toward “gaining
knowledge of the legal procedures,” but while he sometimes
began answering a question about court proceedings correctly,
he would “become derailed by irrelevant and odd ideas, and
ultimately spoil his partially correct response.” Clinical staff
believed that with continued psychiatric treatment there was a
substantial likelihood defendant would achieve trial competence
in the foreseeable future, but that without it he was not expected
to improve. Staff concluded: “There are no effective alternatives
to treatment with antipsychotic medication.”
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Defendant was transferred from Patton to Atascadero in
February 2013. In May, the Atascadero medical director filed
with the court a certification of mental competency under Penal
Code section 1372. The certification was supported by a clinical
report dated April 18, 2013. According to the report, defendant
suffered from schizophrenia, but since his transfer he had
“presented with organized thought processes and ha[d] not
expressed any delusional or paranoid ideation,” “appear[ed] to
have an adequate factual understanding of his charges and the
different court procedures and did not express any delusional
thought content about his charges” and was “able to logically
discuss his legal options and has the capacity to return to court
and cooperate with his attorney.” The report noted, however,
that defendant “has limited insight into his history of mental
illness and continues to deny he was involved in the charges and
insists it was somebody else.” The report cautioned: “He should
remain on his current medication regimen once he is returned
to custody to prevent mental decompensation and maintain
competency related abilities while he waits to return to court.”
Further opining on defendant’s discharge readiness, the
Atascadero report explained that while defendant wished to
plead not guilty and go to trial, he understood his plea choices
and was willing to listen to his attorney’s advice. In a
recommendation for continuing care in defendant’s next facility,
the report stated: “It is recommended that Mr. Rodas continue
to take the medication he is being prescribed to prevent mental
decompensation and maintain competency related abilities once
he returns to custody and is waiting to return to court.” The
Atascadero medical director reiterated this point in a letter to
the trial judge accompanying the report and certification: “It is
important that the individual remain on this medication for his
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own personal benefit and to enable him to be certified under
Section 1372 of the Penal Code.”
In May 2013, without conducting an evidentiary hearing,
the court ruled that defendant was competent to stand trial and
reinstituted criminal proceedings. In so ruling, the court stated
it was proceeding with no case file before it, only a “docket
sheet,” and with the understanding that “he was found
competent.” In later proceedings to settle the record, the
superior court judge who presided on that date stated that she
had before her only a “dummy file” containing the Atascadero
medical director’s certification of competence. There being no
defense request for a hearing on competence and no objection
from either party, the judge explained that she had
“inferentially found him competent based upon the doctor’s
letter.”2 At the hearing, the court and defense counsel discussed
the possible need for a court order to ensure defendant received
his antipsychotic medication at the jail, but the court made no
order at the time or, so far as the record indicates, at a later
time.
In March 2014, after jury selection was completed and
before opening statements were given, defense attorney Carole
Telfer told the court that after recent communications with
defendant, she had developed a doubt as to defendant’s trial
2
On appeal, defendant contended the trial court could not
properly proceed in this manner without a stipulation
submitting the matter on the medical report. The Court of
Appeal, relying on People v. Mixon (1990) 225 Cal. App. 3d 1471,
1480, held that absent a request for a hearing, the trial court
could summarily approve the state hospital certification of
competency. We did not grant review on that issue, and we do
not decide it here.
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competence. Counsel explained her concerns in an in camera
hearing. The previous day, defendant told her he wished to
testify on his own behalf, which they had previously agreed he
would not do. When she tried to find out what he intended to
say in testimony, he sent her a note that said: “Playing record
Hollywood department Westside Honor Ranch L.A. County.
Two police officers visiting. Four records. Call to testify in
court. Statement you are the one that murdered a series of
persons in a tunnel.” On another page, the note continued (in
counsel’s reading): “Transcriptures of acquittal of execution,
transcriptures of the advance of the court date from May 2nd,
2012 from April 6th, 2012, and transcriptures of the name plake,
P-L-A-K-E, Rodas, Domingo to Doudley Brown.”
According to counsel, defendant’s reference to two police
officers visiting him in jail was not accurate. Counsel asked
defendant what he meant about “playing record,” and from his
response she gathered that “he was indicating something about
the video, but was asserting that the video they had, all three of
them were assimilations and were not the correct video.”
According to counsel, defendant said that what he had been
shown were all “assimilations,” though she did not know what
he meant by that term. When counsel asked defendant what he
meant by “transcriptures of acquittal of execution,” he
responded in a “word salad”—that is, by “using a lot of
polysyllabic words that go around in a circle and don’t really
make sense.”
When counsel tried to talk to defendant about his name
change (from Doudley Brown to Domingo Rodas), she reported:
“[H]e got very angry at me and again started doing this word
salad, talking about—something about forgery and . . . how
could they say he was Doudley Brown.” Counsel was unsure
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Opinion of the Court by Kruger, J.
whether defendant meant that he should be charged with
forgery for using the wrong name or that law enforcement
authorities were committing forgery by referring to him as
Doudley Brown. Counsel was concerned because on previous
occasions when defendant had been incompetent to stand trial
he had used the same “word salad,” though sometimes in the
past he had spoken in Spanish instead of English. Defendant
had also told defense counsel he was not taking his medication,
and unlike earlier interactions since defendant’s return to court,
counsel was now having difficulty understanding her client: “I
don’t know what he’s saying, I don’t know what he wants, and
he wants—apparently wants to testify and I’m afraid to put him
on the stand because I don’t know what’s going to come out of
his mouth.”
After hearing from counsel, the court addressed defendant
in the following colloquy:
“The court: . . . Mr. Rodas how you doing?
“The defendant: I’m fine, thank you, your Honor. Since I
have returned from Atascadero Hospital, that I’ve been proved
mentally competent to stand trial, it is the first time that I made
those notes and I had a conversation with Carole Telfer just
yesterday. And I really didn’t mean to be obstructive to the
person’s attention. I didn’t know that that was the person
means. I was being belligerent as how the—antagonistic as how
the person said, and I didn’t know that I was being obstructive
or confrontive, or con –
“The court: Confrontational.
“The defendant: Yeah, confrontational. And I didn’t know
that I was being by anyone—being obstructive against the
person.
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“The court: Well, how are you feeling today?
“The defendant: I feel perfectly fine, your Honor. I don’t—
I don’t consider—I only wanted to ask the person’s pardon if I
possibility was being obstructive that I made up those notes, and
I really don’t mind how the person to continue defending my case
for me and I do mean to keep quiet. I didn’t know, at least the
first time I spoke to the person admittedly, and I didn’t know
that I was being—that the person was considering me to be
confrontative or obstructive.
“The court: Well, let’s slow down here. [¶] You know what
we have a jury now?
“The defendant: Yes, your Honor.
“The court: And we’re set to start the trial?
“The defendant: Yes, your Honor.
“The court: And do you understand that you’ve been
charged with some serious crimes?
“The defendant: Yes, your Honor.
“The court: You’ve been—can you tell me what you’ve
been charged with?
“The defendant: Yes, I understood yesterday the
proceedings were going over and that I was being charged with
three counts of murder and two counts of attempted murder.
“The court: And you know Ms. Telfer is here to defend you
on those charges?
“The defendant: Yes, your Honor.
“The court: And are you willing to help her to the best of
your ability?
“The defendant: Yes, your Honor.”
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Opinion of the Court by Kruger, J.
Addressing defense counsel, the court said it was
“impressed with his clarity of speech and apparent clarity of
reasoning in addressing the court. He understands the charges.
He says he’s willing to help you.” The court then asked
defendant if he thought it was “okay to go ahead and have the
trial,” to which Rodas said, “Yes, your Honor. That will be
properly fine, yes, your Honor.” The court confirmed that was
Rodas’s “request.” When the court asked Rodas if he was taking
his medication, Rodas replied, “No, your Honor, I’ve been doing
without the medication. I’ve been doing fine. I’ve been getting
along well. I’ve been there about a year already. I returned from
Atascadero Hospital since May of last year and I’ve been doing
fine. I have been doing without my medications. It was just the
notes that I made to Ms. Telfer and she thought I was being
obstructive or confrontative.” Answering the court’s leading
questions, defendant affirmed he understood what was going on
and would try to help his counsel with his defense. The court
said, “I think we should go forward.” Counsel replied, “Fine. I
just wanted to make a record.”
The trial proceeded. Against counsel’s advice, defendant
testified in his own defense. In his testimony, defendant asked
the court to “order the three video record exhibition and report
for video filming in the nature exhibited, the copy from the
Hollywood Police Department, the copy that Carole Telfer
showed me at Wayside Honor Ranch, and the copy in the nature
that is being exhibited here at the courtroom . . . .” Defendant
maintained “that the three copies are disassimilated copies, that
they’re not perfectly alike copies, and that they have divulginary
and arbitrary information of casting of images.” He also asked
that the police officers who he said had visited him in jail and
who had “committed” him “the statements to the four video
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Opinion of the Court by Kruger, J.
record copies that you are the one that committed a serious of
murders in a tunnel” be called to testify regarding the “four
record copies on their video copy of record of filming in their
possession . . . .” The court granted the prosecution’s motion to
strike the testimony as irrelevant.
The jury convicted defendant of the murder of Fallin, with
a special circumstance of murder by lying in wait, and of both
attempted murders, but acquitted him on two of the charged
murders. He was sentenced to life without possibility of parole,
plus two additional life terms.
The Court of Appeal affirmed. The appellate court rejected
defendant’s argument that the trial court erred in failing to
suspend proceedings when counsel raised a doubt about his
competence in March 2014. While counsel’s description of
defendant’s behavior “certainly suggested mental illness,” the
court reasoned, it “did not necessarily constitute substantial
evidence of defendant’s incompetence.” Rather, the court
continued, defendant’s responses to the trial court’s questions
suggested competence: “[Defendant] knew he was in a jury trial;
he recited the charges against him with precision; he knew that
Ms. Telfer was defending him; he was willing to help her; he
wanted to go forward with trial; and he apologized for his
‘obstructive’ and ‘belligerent’ behavior. The record therefore
shows that Rodas understood the nature of the criminal
proceedings and could assist counsel in the conduct of a defense
in a rational manner.” The Court of Appeal acknowledged that
defendant’s 2013 psychiatric report “connected taking
medication to maintaining competence,” but reasoned that the
report did not condition its competence finding on continued
medication, and the trial court had “no current medical report
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from 2014 describing the effect, if any, of Rodas’s failure to take
his medication.”
We granted defendant’s petition for review, limited to the
question of whether the trial court erred in failing to suspend
the criminal proceedings after defense counsel expressed her
doubts as to defendant’s competence to stand trial.
II.
A.
The constitutional guarantee of due process forbids a court
from trying or convicting a criminal defendant who is mentally
incompetent to stand trial. (People v. Mickel (2016) 2 Cal.5th
181, 194; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15.)
Section 1367 of the Penal Code, incorporating the applicable
constitutional standard, specifies that a person is incompetent
to stand trial “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.” (Id., subd. (a); see Dusky v.
U.S. (1960) 362 U.S. 402 [competence requires “ ‘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’ ”].)
Penal Code section 1368 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 (id., subd. (a)) and defense counsel concurs (id.,
subd. (b)). This 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
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that he is incapable, because of mental illness, of understanding
the nature of the proceedings against him or of assisting in his
defense.” (People v. Pennington (1967) 66 Cal. 2d 508, 518,
discussing Pate v. Robinson (1966) 383 U.S. 375, 385–386.)
“Once such substantial evidence appears, a doubt as to the
sanity of the accused exists, no matter how persuasive other
evidence—testimony of prosecution witnesses or the court’s own
observations of the accused—may be to the contrary.”
(Pennington, at p. 518.) As we have explained in more recent
cases, substantial evidence for this purpose is evidence “that
raises a reasonable or bona fide doubt” as to competence, and
the duty to conduct a competency hearing “may arise at any time
prior to judgment.” (People v. Rogers, supra, 39 Cal.4th at
p. 847; accord, People v. Sattiewhite (2014) 59 Cal. 4th 446, 464.)
When a doubt exists as to the defendant’s mental
competence, the court must appoint an expert or experts to
examine the defendant. The issue is then tried to the court or a
jury under the procedures set out in Penal Code section 1369.
Except as provided in Penal Code section 1368.1 (allowing for
probable cause and motion hearings in certain circumstances),
all criminal proceedings are to be suspended until the
competence question has been determined. (Pen. Code, § 1368,
subd. (c).)
If, after a competency hearing, the defendant is found
competent to stand trial, a trial court may rely on that finding
unless the court “ ‘is presented with a substantial change of
circumstances or with new evidence’ casting a serious doubt on
the validity of that finding.” (People v. Jones (1991) 53 Cal. 3d
1115, 1153 (Jones); accord, People v. Mendoza (2016) 62 Cal. 4th
856, 884.)
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B.
Defendant contends that the trial court was presented with
substantial evidence of his mental incompetence at the March
2014 hearing and that the circumstances at that time had
substantially changed from those prevailing in May 2013, when
defendant was found competent to stand trial. We agree. Given
the circumstances, the trial court erred by proceeding with trial
without undertaking the required formal inquiry into
defendant’s competence.
First, a brief review of the facts. As the trial court was
aware, defendant had a history of mental illness dating at least
to 1974, and he was found incompetent to stand trial on criminal
charges in 1984 and 1986. In 1988, he was again confined at
Atascadero and Patton and diagnosed with schizophrenia.
Besides delusional thinking, his communication was
disorganized: he spoke in “word salad,” using nonsensical terms
with no connection to one another.
In 2011 and 2012, experts found him incompetent to stand
trial based on his “fragmented” thought processes, “rambling”
and “nonsensical” speech and his delusional belief he was
misidentified as the person who previously had been confined at
Patton. But with psychotropic medication, Dr. Knapke noted in
2012, defendant could probably be returned to a state of mental
competence to stand trial. After several months of treatment, a
report from Patton found that with medication defendant had
shown some progress in reducing symptoms of psychosis. With
continued treatment, he likely would regain competence, but
without it he likely would not: “There are no effective
alternatives to treatment with antipsychotic medication.”
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When, several months later, the Atascadero medical director
ultimately certified defendant as competent, the report twice
cautioned that he should remain on his medication regimen “to
prevent mental decompensation and maintain competency
related abilities.” In a cover letter to the court on filing the
certificate of competence, the Atascadero medical director
repeated the warning: “It is important that [defendant] remain
on this medication . . . to enable him to be certified under Section
1372 of the Penal Code.”
In sum, the psychiatric reports and letters in the record
established two critical facts. First, defendant’s schizophrenia
causes him to suffer paranoid ideation and severe difficulties in
organizing his thoughts and speech, periodically rendering him
incompetent to stand trial. Second, while consistent
administration of antipsychotic and mood-stabilizing
medication can control these symptoms, maintenance of
competence depends on continued medication.
It was against this backdrop that defense counsel informed
the trial court in March 2014 that she had formed a new doubt
about defendant’s competence. At that time, the trial court
learned that defendant had stopped taking his medication and
his condition had severely deteriorated. Defendant was now
focused on a paranoid theory that the videotapes the prosecution
was using against him were “assimilations” and that
identifications of him as Doudley Brown (his original name,
under which he had been previously confined in state hospitals)
were somehow “forge[d].” Beyond that, his communications to
his attorney were incoherent, consisting of a “word salad” like
that reported during his earlier bouts of mental incompetence.
Defendant had told counsel he now wanted to testify, contrary
to their earlier agreement, but counsel did not understand what
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defendant was saying to her and hence did not know “what’s
going to come out of his mouth” if he took the stand. Taken as a
whole, this information constituted substantial evidence of
mental incompetence. The facts made known to the 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.” (Pen.
Code, § 1367, subd. (a).)3
In concluding that the trial could proceed, the trial court
relied on a brief colloquy with defendant, in which defendant
displayed a general understanding of the nature of the
proceedings and the charges against him. But nothing in the
colloquy dispelled the specific concerns that counsel had raised
3
The record does not support the Attorney General’s
speculative suggestion that defendant’s incoherent
communication with counsel was attributable to his use of
English rather than Spanish. Defendant’s sister testified at
trial that he was fluent in both English and Spanish. Defendant
was born in Puerto Rico but, according to Dr. Knapke’s report,
his father was “British from Honduras.” On one occasion,
defendant insisted to an interviewer that he spoke only Spanish,
but he nevertheless “spontaneously began speaking English in
the middle of an interview about any problem.” The record
reflects, moreover, that the problems counsel described arose
when defendant was speaking Spanish as well as when he was
speaking English. Dr. Knapke also noted that when he
interviewed defendant through a Spanish interpreter,
defendant began “rambling in a nonsensical manner,” and the
interpreter told Knapke he was having difficulty understanding
defendant because of defendant’s “bizarre use of words and
syntax.” Even to the interpreter, defendant “was using words
out of context” and “was not making any sense.” In declaring
her doubts as to competence, defense counsel explained to the
trial court that defendant had previously used a “word salad” in
Spanish and was now doing so in English.
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about defendant’s ability to rationally assist her in conducting
his defense. Indeed, the transcript of the colloquy is suggestive
of some of the very communication difficulties counsel had
described: In response to the court’s opening question about
how he was doing, defendant responded that he was fine, but
then continued: “[I]t is the first time that I made those notes
and I had a conversation with Carole Telfer just yesterday. And
I really didn’t mean to be obstructive to the person’s attention.
I didn’t know that that was the person means. I was being
belligerent as how the—antagonistic as how the person said,
and I didn’t know that I was being obstructive or confrontive.”
And critically, while aspects of defendant’s performance in
this colloquy could be seen as weighing to some degree against
counsel’s evidence of incompetence, the colloquy did not provide
an adequate basis for resolving any conflict in the evidence
concerning defendant’s competence. In Pate v. Robinson, supra,
383 U.S. 375 (Pate), the high court made clear that when
substantial evidence of incompetence otherwise exists, a
competency hearing is required even though the defendant may
display “mental alertness and understanding” in his colloquies
with the trial judge. (Id. at p. 385.) The court explained that
while the defendant’s in-court behavior “might be relevant to the
ultimate decision as to his sanity, it cannot be relied upon to
dispense with a hearing on that very issue.” (Id. at p. 386.)
This court has followed the same principle: When faced
with conflicting evidence regarding competence, the trial court’s
role under Penal Code section 1368 is only to decide whether the
evidence of incompetence is substantial, not to resolve the
conflict. Resolution must await expert examination and the
opportunity for a full evidentiary hearing. (People v. Lightsey
(2012) 54 Cal. 4th 668, 703–704; People v. Pennington, supra, 66
18
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
Cal.2d at p. 518.) Had the issue of defendant’s competence been
tried to the court under Penal Code section 1369, the trial court
might legitimately have weighed defendant’s demeanor and the
nature of his responses to the court’s questioning against the
experts’ reports and other available evidence relating to his
condition. But in the face of substantial evidence raising a doubt
about defendant’s competence, defendant’s demeanor and
responses supplied no basis for dispensing with further inquiry.
It is true that, generally speaking, when a defendant has
already been found competent to stand trial, “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.” (Jones, supra, 53 Cal.3d at p. 1153.)
We have also said that when a competency hearing has already
been held, “the trial court may appropriately take its personal
observations into account in determining whether there has
been some significant change in the defendant’s mental state,”
particularly if the defendant has “actively participated in the
trial” and the trial court has had the opportunity to observe and
converse with the defendant. (Ibid.)
This rule does not, however, alter or displace the basic
constitutional requirement of Pate, supra, 383 U.S. at pages 385
to 386, and People v. Pennington, supra, 66 Cal.2d at page 518,
which require the court to suspend criminal proceedings and
conduct a competence hearing upon receipt of substantial
evidence of incompetence even if other information points
toward competence. The effect of the Jones rule is simply 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
19
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
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.
Whether there has been a change in circumstances
sufficient to call for a new competency hearing is necessarily a
fact-specific inquiry. Under the facts of this case, however, it is
plain that the standard was met; the evidence before the trial
court made it unreasonable to continue to rely on the prior
competence finding in allowing the trial to proceed. The May
2013 competence finding had followed a finding of incompetence
in February 2012; in the interim, defendant had been confined
in state hospitals and treated with antipsychotic medication.
When the competence finding was made, it was based solely on
the certification of the medical director, who stated clearly that
it was “important that [defendant] remain on this medication
. . . to enable him to be certified.”4
Considering this context, the information presented to the
court at the March 2014 in camera hearing showed a substantial
change in circumstances since May 2013. At that hearing, the
court learned that defendant had stopped taking his
antipsychotic medication—on which his prior competence
4
Not only was no evidentiary hearing held at that time, but
the court had before it no case file; it made its determination
based solely on the “docket sheet,” as the judge presiding at the
hearing said at the time, or at most on a “dummy file” containing
only “the letter from the doctor, finding the defendant
competent,” as the judge stated in settling the record.
Ms. Telfer, who had represented defendant in earlier
proceedings and who later represented him at trial, was not
present for the May 2013 hearing; two other deputy public
defenders stood in for her.
20
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
finding was effectively conditioned—and was again displaying
symptoms similar to those he exhibited during prior bouts of
incompetence. Far from duplicating the evidence considered in
the course of making the prior competency finding, this new
information painted a starkly different picture from that
contained in the medical director’s certification. Nothing the
trial court heard in its colloquy with defendant negated the
showing of changed circumstances—nor, for that matter, did the
trial court justify its decision not to declare a doubt after the in
camera hearing by any determination that the circumstances
had not significantly changed since defendant was found
competent in May 2013. This change in circumstances required
additional, formal inquiry under Penal Code section 1368.5
This conclusion is consistent with that of another published
decision of the Court of Appeal, in which the court held that a
competency hearing was required under circumstances strongly
5
Even if the information the court received at the March
2014 in camera hearing were not deemed to show substantially
changed circumstances from the May 2013 competence finding,
defendant’s nonsensical and irrelevant testimony during trial,
together with counsel’s earlier presentation, clearly did so.
When the court tried to clarify defendant’s testimony that the
tape copies were “divulginary and arbitrary information of
casting of images” by asking whether defendant was saying the
jury had been shown a different tape than he had seen in jail,
defendant responded: “No, your Honor, not explicitly that
nature. I am just saying that the physical material copies in the
fact of knowledge identified consistency, a prototype of the
nature of the assimilated nature.” Although defense counsel did
not at that point renew her caution that defendant appeared
incompetent to stand trial, the court’s duty to assess competence
is a continuing one. (People v. Sattiewhite, supra, 59 Cal.4th at
p. 464.)
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PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
resembling those presented in this case. In People v. Murdoch
(2011) 194 Cal. App. 4th 230 (Murdoch), the court held that the
trial court was required to suspend criminal proceedings under
Penal Code section 1368 when confronted with evidence that the
defendant had stopped taking his medication and was pursuing
a delusional theory of defense. The defendant there, charged
with assault, was found competent to stand trial based on expert
reports stating that he was competent so long as he remained
medicated. But the same reports noted that defendant had
either completely or mostly stopped taking his medication and
could “decompensate and become incompetent if he continued to
refuse medication.” (Murdoch, at p. 233.) At trial a few months
later, the defendant, now representing himself, told the court
that he wanted to introduce parts of the Bible and other books
to prove that the alleged victim was not a human being because
he did not have shoulder blades, which “ ‘are symbolic of angelic
beings,’ ” and instead had a single bone that prevented him from
shrugging his shoulders. (Id. at p. 234.) When the victim
testified, the defendant asked him on cross-examination if he
could shrug his shoulders. The victim did so, and the defendant
stated, “ ‘That’s all I have. This isn’t the man that I believe
attacked me.’ ” (Id. at p. 235.) The Murdoch court held that in
light of the experts’ reports, which described the defendant’s
“fragile competence and its evident dependence upon continued
medication,” and evidence that the defendant had stopped
taking that medication, the defendant’s bizarre explanation of
his defense required new proceedings to determine competence.
(Id. at p. 237.)
Although the Court of Appeal in this case attempted to
distinguish Murdoch, the cases are similar in relevant respects.
Like the defendant in Murdoch, defendant here had been
22
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
diagnosed with a mental illness that threatened his trial
competence if untreated; as in Murdoch, the trial court was
faced with evidence defendant had stopped taking his
medication and was now insisting on presenting a defense that
threatened to be nonsensical or delusional. In this case, the
evidence before the court also showed that defendant could no
longer communicate rationally with his attorney about his
defense. In both cases, the defendants’ behavior, in combination
with the warnings of the health professionals about the
likelihood that they would become incompetent if they did not
take antipsychotic medication, was substantial evidence giving
rise to a doubt as to their competence. Here, as in Murdoch, the
trial court was required to suspend proceedings and launch a
formal inquiry to resolve the matter.
C.
The Attorney General raises two main arguments in
defense of the trial court’s ruling, but neither is persuasive. The
Attorney General first attempts to minimize the concerns
defense counsel raised at the March 2014 hearing, arguing that
defendant’s note and remarks to counsel do not reflect
delusional thinking on par with that of the Murdoch defendant.
We grant there are differences between the Murdoch
defendant’s mental state and the mental state of defendant in
this case. But the differences do not render defendant’s
condition less concerning from the standpoint of due process.
Defendant’s insistence that the prosecution’s videotapes were
“assimilations” and that the accusation against him involved
some type of “forgery” of his identity reflected paranoid thinking
like that he had displayed in previous episodes of mental
incompetence. And defendant’s descent into speaking in “word
salad” in response to questions about his desire to change trial
23
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
strategy—which had also characterized his previous episodes of
incompetence—showed him unable to coherently discuss his
defense with counsel, which meant he could not rationally assist
his attorney with his defense.
Second, echoing the Court of Appeal’s rationale, the
Attorney General also argues that the record does not clearly
establish the connection between the administration of
medication and defendant’s competence. The medical reports in
the record, the Attorney General contends, did not “necessarily
condition” his mental competence on continued medication. And
the record contains no contemporaneous medical report
indicating that defendant’s symptoms had returned after he
stopped taking his medication.
For reasons already stated, we disagree with the Attorney
General’s characterization of the medical reports in the record.
While the reports did not state in so many words that defendant
would decompensate and become incompetent if he stopped
taking his medication, the reports did make several points clear:
that defendant had been incompetent while unmedicated; that
defendant had required involuntary medication to be restored to
a state of competency to stand trial; that for defendant “[t]here
are no effective alternatives to treatment with antipsychotic
medication”; that “to prevent mental decompensation and
maintain competency related abilities,” defendant should
continue his medication; and that it was “important” for
defendant to remain on medication “to enable him to be
certified” as competent to stand trial. Given that human
psychology rarely involves absolutes, a closer link between
continued medication and defendant’s mental competence could
hardly be demanded.
24
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
The Attorney General is correct that the court did not have
the benefit of expert reports or testimony evaluating defendant’s
condition after he stopped taking his medication in 2013 or
2014.6 But under the circumstances, substantial evidence of
incompetence existed without such a report. The court already
had the benefit of the medical reports described above, which
related to defendant’s history of incompetence while
unmedicated and which made clear that medication should be
continued to ensure that defendant’s competence continued. At
the March 2014 hearing, the trial court learned not only that
defendant had ceased taking his medication, but also that he
had begun displaying some of the same symptoms he had
displayed during earlier periods of incompetence and, as a
consequence, was unable to communicate rationally or
coherently with his attorney. As in Murdoch, supra, 194
Cal.App.4th at pages 236 to 238, the evidence before the court
went beyond a simple report that defendant was speaking or
acting bizarrely; against the background of medical reports
detailing defendant’s history of schizophrenia and the
importance of medication in controlling his symptoms, counsel’s
report raised a reasonable doubt as to defendant’s continued
competence. To the extent a new expert examination and report
were needed to resolve that doubt, the procedures are contained
in Penal Code section 1369, subdivision (a). The court could not
properly proceed with the criminal trial without first invoking
those procedures to determine whether defendant was
competent.
6
A psychiatrist testified for the defense at trial, but did not
examine defendant or prepare any written report.
25
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
III.
A question remains as to the appropriate remedy. The
Attorney General asks that if we determine the trial court was
required to suspend criminal proceedings and hold a competency
hearing following the March 2014 hearing, we order the case
remanded to the trial court for a hearing to determine whether
defendant was in fact competent at the time of his trial.
This court has never decided whether remand for such a
retrospective competency hearing is an appropriate remedy for
what we have sometimes referred to as Pate error—that is, a
court’s due process error in failing to suspend criminal
proceedings and determine the defendant’s competence. In Pate
itself, the high court rejected a proposal to remand for a
retrospective competency hearing, citing the difficulty of
determining the defendant’s competence some six years after
the fact. (Pate, supra, 383 U.S. at p. 387.) The court did the
same in Drope v. Missouri (1975) 420 U.S. 162, 183 (Drope),
emphasizing “the inherent difficulties of such a nunc pro tunc
determination under the most favorable circumstances.”
For many years, these decisions were generally understood
to mean automatic reversal was the only remedy for Pate error.
(People v. Lightsey, supra, 54 Cal.4th at p. 704 (Lightsey).) But
at some point, some courts began to take a different view,
concluding that retrospective competency hearings might in
some instances be feasible and appropriate. This included the
Court of Appeal in People v. Ary (2004) 118 Cal. App. 4th 1016,
1029 (Ary I), which remanded to the trial court to determine
whether a retrospective hearing was feasible where the record
contained “extensive expert testimony and evidence . . .
regarding defendant’s mental retardation and his ability to
26
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
function in the legal arena” at the time of his disputed
competence. When the same case later arrived at this court for
review, we assumed, without deciding, that this remedy was
permissible. (People v. Ary (2011) 51 Cal. 4th 510, 516–517 (Ary
II).) We emphasized, however, that if the remand procedure is
in fact permissible, it requires the trial court to “first decide
whether a retrospective determination is indeed feasible.
Feasibility in this context means the availability of sufficient
evidence to reliably determine the defendant’s mental
competence when tried earlier.” (Id. at p. 520.)
In Lightsey, we again declined to answer the question
whether a retrospective competency hearing is ever an available
remedy for Pate error, deeming the question “complex and
subject to debate.” (Lightsey, supra, 54 Cal.4th at p. 704.) We
instead concluded that such a hearing might be an appropriate
remedy for a different sort of error—namely, a trial court’s error
in failing to appoint counsel to represent a defendant in a
competency hearing. (Id. at pp. 702, 706–710.) In so holding,
we distinguished cases of Pate error, explaining: “[D]espite the
error in the manner in which the competency proceedings were
conducted, the subject of defendant’s mental competence
actually was reviewed at the time of the trial and
contemporaneous evidence specifically addressing that issue
presumably still exists.” (Id. at p. 707.) “In contrast, in the
circumstances of Pate error, where there was substantial
evidence of incompetence but no proceedings to develop the
record further, there is by definition a shortcoming in the
evidence, and the trier of fact at a retrospective competency
hearing would have to rely on after-the-fact opinions and
evidence in the record (such as the defendant’s courtroom
behavior) that might only circumstantially assist in determining
27
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
the defendant’s mental state at the time of trial.” (Id. at
pp. 707–708.)
Assuming that in some circumstances a retrospective
hearing may be proper when the trial court has erred in failing
to hold a competency hearing, we conclude that here, much as
in Pate and Drope, “the inherent difficulties of such a nunc pro
tunc determination” (Drope, supra, 420 U.S. at p. 183) cannot be
overcome under the circumstances of the case. As we have
previously explained, the critical question in determining
whether a retrospective competency hearing is feasible is
whether there is “sufficient evidence to reliably determine the
defendant’s mental competence when tried earlier.” (Ary II,
supra, 51 Cal.4th at p. 520, italics added.) The burden of proof
in a retrospective hearing is on the defendant, and feasibility
requires finding that such a hearing “will provide defendant
a fair opportunity to prove incompetence, not merely [that] some
evidence exists by which the trier of fact might reach a decision
on the subject.” (Lightsey, supra, 54 Cal.4th at p. 710.)
Several factors might bear on this inquiry. (See Ary II,
supra, 51 Cal.4th at pp. 516–517 [suggesting various factors
that might be relevant to the feasibility of retrospective
competency hearings].)7 Here, however, the dominant
7
In Ary II, supra, 51 Cal. 4th 510, we declined to address
the theoretical question whether Pate error may ever be cured
by a retrospective competence hearing. (Ary II, at pp. 516–517.)
In dicta, however, we discussed the feasibility of such hearings,
citing with approval an appellate decision identifying four
factors bearing on feasibility: the passage of time, the
availability of contemporaneous medical evidence, any
statements by defendant in the trial record, and the availability
of individuals who interacted with defendant before and during
trial. (Id. at p. 520, fn. 3.)
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PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
considerations are the fluctuating nature of defendant’s
symptoms, the passage of time, and the lack of contemporaneous
expert evaluations. To saddle defendant with the burden of
proving his incompetence in March 2014, around five years after
the fact, without the benefit of any contemporaneous
psychiatric, psychological, or neurological evaluation, would
neither be fair nor produce a reliable result. Without any
significant prospect of evidence showing competence being
produced, moreover, a retrospective hearing could not feasibly
cure the Pate error.8 Defense counsel already put her negative
view of defendant’s competence on the record at the trial’s
outset, and defendant’s testimony at trial only served to
reinforce counsel’s showing that his mental condition made it
impossible for him to rationally assist in his defense.
8
Here, as in all cases of Pate error, the trial record itself
supplies substantial evidence of defendant’s incompetence. The
critical question is not whether the trial court could reliably
find, on the basis of this evidence, that defendant was in fact
incompetent. The critical question, rather, is whether the trial
court could reliably find competence: whether evidence exists
both to show defendant’s competence at the time of trial and to
permit defendant to respond fully to that showing, such that a
fair and reliable determination that defendant was competent
to stand trial could be made.
We recognize that a retrospective hearing might be
thought technically “feasible” as long as the court had
information sufficient to make a determination either way. But
it would serve no purpose to remand for a hearing that could do
no more than confirm that defendant was incompetent at the
time of trial; our analysis therefore focuses on the feasibility of
holding a hearing that could fairly and reliably show that
defendant was in fact competent at the time of trial.
29
PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
Had the trial court declared a doubt about competence in
March 2014, the court would have appointed two experts to
examine defendant and report on aspects of his mental condition
relevant to competence, as well as the appropriateness of
medical treatment for any condition found. (Pen. Code, § 1369,
subd. (a).) Such evaluations would have been crucial in
determining whether defendant’s failure to adhere to his drug
regimen had resulted in a return of his schizophrenic symptoms
to such a degree as to render him once more incompetent. A
retrospective hearing, in contrast, would presumably require an
attempt by psychologists or psychiatrists to reconstruct
defendant’s mental condition at trial based on the prior medical
reports and defendant’s behavior at the time of trial. But the
most recent expert evaluation, dating from April 2013, tied
defendant’s competence to continuation of his medication.
Given the showing that by March 2014 defendant had long since
stopped taking his medication and had suffered a significant
relapse into a more florid psychotic condition, 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. Under the particular
circumstances of this case, at a distance of around five years and
without any expert evaluations from the time of trial, we do not
believe the trial court could fairly come to a reliable conclusion
that defendant was competent at that time.
By contrast, when courts have permitted retrospective
hearings, they have generally done so in cases involving unusual
circumstances where reliable evidence of the defendant’s mental
condition at the time of trial would be available at the hearing.
(See Ary I, supra, 118 Cal.App.4th at p. 1028; Tate v. State
(Okla.Crim.App. 1995) 896 P.2d 1182, 1188 ; cf. Lightsey, supra,
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PEOPLE v. RODAS
Opinion of the Court by Kruger, J.
54 Cal.4th at pp. 707-708 [retrospective hearing might be
feasible to cure the error of failing to appoint counsel for the
defendant at the original competence hearing].) Absent such
contemporaneous evidence here, and given the fluctuating
nature of defendant’s symptoms and the considerable passage of
time, we conclude no retrospective competency hearing could
“ ‘place[] [defendant] in a position comparable to the one he
would have been placed in prior to the original trial.’ ” (Ary II,
supra, 51 Cal.4th at p. 520.)
Without either approving or foreclosing the possibility that
a retrospective hearing might be found feasible in other cases of
Pate error, we hold that under the circumstances of this case
such a hearing would not supply an adequate remedy.
IV.
We reverse the judgment of the Court of Appeal and remand
the matter to that court with directions to reverse the judgment
of conviction. Defendant may be retried on the charges for which
he was convicted if he is not presently incompetent to stand
trial.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KLINE, J.*
*
Presiding Justice of the Court of Appeal, First Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
31
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rodas
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 8/15/16 – 2d Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S237379
Date Filed: November 26, 2018
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Robert J. Perry
__________________________________________________________________________________
Counsel:
Joanna McKim, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer, Susan Sullivan Pithey and Zee
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joanna McKim
P.O. Box 19493
San Diego, CA 92159
(619) 303-6897
Zee Rodriguez
Deputy Attorney General
300 South Spring Street, Suite 1700
Los Angeles, CA 90013
(213) 576-1342