People v. Stelle CA2/2 ( 2022 )

Filed 12/12/22 P. v. Stelle CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B322499
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. INF1500499)
v.
ORDER MODIFYING
STANFORD JAMES STELLE OPINION AND DENYING
III, REHEARING
Defendant and Appellant. NO CHANGE IN THE
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on November 23, 2022,
be modified as follows:
1. On page four, in the second sentence of the second full
paragraph, replace the semicolon with a comma, and
insert after that comma, “the charging documents, a
police report regarding the molestation, and defendant’s
police interview,” so that the full sentence reads:
Dr. Leitman wrote a four-page report based solely on
an interview with defendant, the charging
documents, a police report regarding the molestation,
and defendant’s police interview.
2. In the fourth sentence of the same paragraph (also on
page four), which begins, “Because,” delete the second
word, “defendant,” and replace it with “defendant’s
answers indicated a lack of ‘knowledge about important
aspects of the legal system’ and because he,” such that
the sentence reads:
Because defendant’s answers indicated a lack of
“knowledge about important aspects of the legal
system” and because he gave “some bizarre
responses” during that interview—including that he
“lived in bushes,” “loves to ride horses,” and has
problems remembering things—Dr. Leitman opined
that defendant “would not be able to cooperate with
his attorney” in his defense.
3. In the immediately following sentence (also on page 4),
which begins, “Dr. Clark,” insert “in her nine-page
report” after the first “and,” so that the sentence reads:
2
Dr. Clark also interviewed defendant, and in her
nine-page report observed that he had “poor eye
contact,” a “flat” “affect,” and what appeared to be
“impaired” “memory function” during that interview.
4. Delete the sentence that begins at the end of page four
and continues onto page five— beginning, “In November
2015”—and replace it with the following sentence:
In November 2015, the parties stipulated that the
trial court may base its finding of incompetency to
stand trial on Dr. Leitman’s and Dr. Clark’s reports.
5. In the sentence that immediately follows (on page five),
replace “Based on that stipulation, the” with “The,” and
insert “consequently” after “court,” so that the sentence
reads:
The court consequently found defendant “mentally
incompetent to stand trial” and suspended the
criminal proceedings.
6. At the end of page nine, in the first part of the first
sentence following the bullet point labeled “Testimony of
Dr. Jones,” replace the phrase “that the prior diagnosis
of malingering was still valid,” with “his prior opinion
that defendant was likely malingering,” so that the
beginning of that sentence reads:
3
Dr. Jones did not reexamine defendant, but
reaffirmed his prior opinion that defendant was likely
malingering because . . .
7. In the same sentence as immediately above (but on page
10), after the comma that precedes, “(2) Dr. Gilewski’s
diagnosis,” add a footnote and renumber the subsequent
footnotes accordingly. The footnote should read as
follows:
3 Although Dr. Jones acknowledged that he had not
“seen [the] norms for autistic individuals” (that would
place defendant on “some type of autism scale”), he went
on to testify that defendant “appeared to be able to
concentrate and to engage” in a way that “an autistic
person . . . lost in their thoughts way out here . . . might
not be able to do.”
8. Also in the same sentence as immediately above (on
page 10), insert between “(6) defendant’s” and
“neurocognitive disorder” the following: “medical records
‘indicate[d]’ that his,” so that the last part of that
sentence reads:
and (6) defendant’s medical records “indicate[d]” that
his neurocognitive disorder was not progressive.
9. Delete the first full sentence on page 11, which begins,
“However, Dr. Jones testified,” and replace it with the
following sentence:
4
However, Dr. Jones testified that this email did not
“impact” him in how he “approached this case” and
that he was “not concerned” about defendant’s release
status when evaluating defendant’s mental health.
10. On page 18, in the sentence immediately preceding
the heading “B. Analysis,” replace the word “cast”
with the phrase “constitute a substantial change in
circumstances or new evidence casting,” so that the
sentence reads:
Consequently, where the new information
“substantially duplicates evidence already considered
at” the prior hearing or any change entails “minor
changes in the defendant’s mental state,” it does not
constitute a substantial change in circumstances or
new evidence casting a serious doubt on the prior
finding and does not warrant convening a new
competency hearing.
11. In the third full paragraph on page 20, in the second
sentence, which begins, “There is also no support,”
insert a fourth footnote after “Brady v. Maryland (1963)
373 U.S. 83,” and renumber subsequent footnotes
accordingly. The footnote should read:
4 Because a prosecutor’s duty under Brady to
disclose “favorable” evidence to the defense
encompasses evidence that impeaches government
witnesses (Turner v. United States (2017) 137 S.Ct.
1885, 1893), Brady subsumes the duty of prosecutors
5
to disclose impeachment evidence first recognized in
Giglio v. United States (1972) 405 U.S. 150.
12. In the same sentence where the fourth footnote above
is to be inserted, delete “; further, any discovery error
can be harmless (Buenrostro, supra, 6 Cal.5th at p. 399),
and as explained below, was harmless error,” and insert
the following full sentence as the third sentence of the
paragraph:
Further, and contrary to what defendant argues in
his petition for rehearing, the nondisclosure of
favorable evidence violates Brady only if the evidence
was “material” to the outcome of the proceeding
(People v. Beck & Cruz (2019) 8 Cal.5th 548, 557),
and violations of the Criminal Discovery Act are
subject to harmless error analysis (Buenrostro, supra,
6 Cal.5th at p. 399); as explained below, the ex parte
communication was not material to the outcome of
the competency proceeding and its omission was
harmless here.
13. On page 22, delete the second sentence beneath the
heading labeled, “2. October 2020 ruling not to convene
a second competency hearing,” which begins, “Applying
the standards,” and replace it with the following
sentence (leaving untouched the citation that follows the
original sentence):
Applying the standards set forth above, the trial
court’s ruling was correct as long as substantial
6
evidence supported its findings that (1) there was no
substantial change of circumstances, or (2) there was
no new evidence casting a serious doubt on the
validity of the trial court’s prior, May 2019 finding of
competency.
14. In the next paragraph, which is the second full
paragraph beneath the heading labeled “2. October
2020 ruling not to convene a second competency hearing,”
delete the first sentence, which begins, “Even if we
assume,” and replace it with the following sentence:
Even if we assume that the additional evaluations
defendant proffered in October 2020 qualify as a
“change of circumstances” or as “new evidence,” the
trial court had substantial evidence to support its
rulings that the evaluations did not constitute a
substantial change in circumstances or new evidence
that cast serious doubt on the trial court’s prior
finding that defendant was competent to stand trial.
15. In the sentence that begins on page 22 and continues
onto page 23, delete the word “new,” so that the sentence
reads:
The evidence defendant proffered was largely aimed
at undermining that subsidiary finding of
malingering.
7
16. In the first full sentence on page 23, which reads “But
that new evidence,” delete “new evidence did not cast”
and replace it with “evidence did not constitute a
substantial change in circumstances or constitute new
evidence that casts,” so that the beginning of the
sentence now reads:
But that evidence did not constitute a substantial
change in circumstances or constitute new evidence
that casts a serious doubt on that finding because . . .
17. In the sentence that immediately follows (also on
page 23), delete “cast no,” and insert in its place, “was
not a substantial change in circumstance and was not
new evidence casting,” so that the sentence reads:
And because the evidence of defendant’s malingering
remained unassailed, the additional evidence that his
feigned memory loss was getting worse was not a
substantial change in circumstances and was not new
evidence casting doubt on the prior finding of
competency.
18. In the second full paragraph on page 23, in the
second sentence, which begins with “Thus, defendant
concludes,” delete “cast” and insert in its place “were a
substantial change in circumstances and new evidence
casting,” so that the sentence reads:
8
Thus, defendant concludes, the new diagnoses were a
substantial change in circumstances and new
evidence casting doubt on the trial court’s prior
finding of competency.
19. In the first sentence of the first full paragraph on
page 24, which begins “Second, defendant argues,”
delete the word “new,” and insert between “thereby” and
“casting,” the words “constituting a substantial change
in circumstances and,” so that the sentence reads:
Second, defendant argues that the evidence regarding
the prosecutor’s ex parte communication with Dr.
Jones deprives his opinion of all weight, thereby
constituting a substantial change in circumstances
and casting serious doubt on the court’s finding of
malingering.
20. In the first sentence of the following paragraph (also
on page 24), which begins, “Third, defendant asserts,”
delete the word “new”; insert “a” between “constituted”
and “substantial”; and insert “change in circumstances
or new” between “substantial” and “evidence,” so that
the sentence reads:
Third, defendant asserts that the trial court applied
the incorrect analysis in assessing whether his new
evidence constituted substantial evidence that casts
serious doubt on the prior competency finding.
9
21. On page 25, seven lines down, in the sentence
beginning, “By his argument,” delete the first
appearance of the word “new”; delete “casts” and insert
in its place “constitutes a substantial change in
circumstances or new evidence casting”; and insert after
“any” “change in circumstances and any,” so that the
sentence reads:
By his argument, defendant seems to suggest that a
trial court may not evaluate or weigh whether
evidence—even if accepted as true—constitutes a
substantial change in circumstances or new evidence
casting a serious doubt on the prior finding of
competency; but accepting defendant’s suggestion
would mean that any change in circumstances and
any new evidence—no matter how flimsy or how it
fits into the overall tapestry of other evidence—would
mandate a new competency hearing.
22. In the very next sentence (also on page 25), which
begins “We reject this suggestion,” in the portion of the
sentence occurring after the semicolon: delete
“substantial,” and replace it with “evidence of a
‘substantial’ change in circumstances or of new”; and
insert between “not on” and “evidence” “evidence that
shows any change in circumstances or new.” The
sentence from the semicolon onward should read:
Rodas conditions a further competency hearing on a
showing of evidence of a “substantial” change in
10
circumstances or of new evidence that casts a
“serious doubt” on the prior finding of competency,
not on evidence that shows any change in
circumstances or new evidence that merely suggests
any doubt.
23. In the very next sentence, which is the last sentence
of that paragraph (also on page 25), beginning, “The
trial court used,” insert between “level of” and “casting,”
“a substantial change in circumstances or new
evidence,” so that the sentence reads:
The trial court used the proper analysis in this case
because it accepted Dr. Gilewski’s and Dr. Leitman’s
evaluations at face value, but determined that they
did not rise to the level of a substantial change in
circumstances or new evidence casting serious doubt
on the court’s prior finding of malingering in light of
the overwhelming other evidence of malingering that
was unaffected by the new evaluations.
24. In the first part of the next sentence (also on page
25), which begins, “Fourth”: Delete “there was” and
replace it with “the new evaluations constituted a”;
insert between “substantial” and “evidence,” “change of
circumstances or new”; delete “that the new evaluations
cast,” and replace it with “casting,” so that the first part
of the sentence reads:
11
Fourth, defendant urges that the trial court’s
analysis of whether the new evaluations constituted a
substantial change of circumstances or new evidence
casting serious doubt on the prior finding of
competency was flawed because . . .
25. On page 28, in the third sentence beneath the
heading “3. April 2021 ruling not to convene a second
competency hearing,” replace “‘substantial evidence’”
with “a substantial change in circumstances or new
evidence,” so that the sentence reads:
The trial court did not err in concluding that those
items of evidence did not constitute a substantial
change in circumstances or new evidence that “casts
serious doubt” upon its prior finding of competency.
26. On page 30, six lines down, insert an additional space
before the sentence beginning “What is more,” so that
there are two spaces between that sentence and the one
preceding it.
27. In the first full paragraph on page 30, in the first
sentence, replace “two” with “three,” so that the
sentence reads:
Defendant offers three arguments in rejoinder.
28. At the end of the same paragraph mentioned above
(the first full paragraph), insert the following sentence:
12
Third, defendant in his petition for rehearing argues
that the weak probative value of the evidence goes to
its weight and not its admissibility; he is wrong, for if
defendant were correct that the slight probative
value of evidence could never preclude its admission,
section 352 would be a nullity.
* * *
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
——————————————————————————————
CHAVEZ, Acting P. J. HOFFSTADT, J. BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
13
Filed 11/23/22 P. v. Stelle CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B322499
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. INF1500499)
v.
STANFORD JAMES STELLE
III,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County, Dale R. Wells, Judge. Affirmed.
Dorsey & Whitney, Lynnda A. McGlinn, RJ Zayed, and
Michael Rowe for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Charles C. Ragland, Assistant
Attorney General, A. Natasha Cortina, Annie Featherman
Fraser, and Lindsay Boyd, Deputy Attorneys General, for
Plaintiff and Respondent.
******
Stanford James Stelle III (defendant) stands convicted of
forcing his much younger cousin to engage in sex acts from the
time she was five years old until she was 12. On appeal, he does
not contest his guilt. Instead, he argues that he was not
competent to stand trial or to be sentenced. He also argues that
the trial court erred in excluding evidence of his mental state to
negate the specific intent required for a subset of the sex crimes.
We conclude that his arguments lack merit, and affirm his
convictions and sentence.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Defendant and his cousin
Defendant was born in 1978. He completed 11th grade. He
has access to a substantial sum of money held in a family trust.
In 2005, defendant injured the frontal lobes of his brain in a
motorcycle accident.
S. Doe was born in 1998. She is defendant’s cousin.
B. Defendant sexually molests his cousin for nearly
a decade, despite knowing it was “wrong” to do so
From 2003 (when S. Doe was five years old) until 2011
(when she was 13 years old), defendant sexually molested S. Doe
every weekend. Initially, defendant would massage S. Doe’s
chest and stick his finger in her vagina during the showers he
insisted they take together. Defendant then progressed to
2
making S. Doe lay on the floor while naked, where he would rub
his penis against her vagina until he ejaculated all over her
chest. Defendant eventually started to orally copulate S. Doe and
to demand that S. Doe orally copulate him, even though she
would choke and gag as she did so.
To ensure that S. Doe would not tell anyone else about
what he called their “little secret,” defendant would buy S. Doe
trinkets, candy, and items of clothing.
The molestation ended in 2013. While at their
grandfather’s 91st birthday party that year, defendant took S.
Doe into a bedroom and pulled off her pants. S. Doe urged him to
stop, but he ignored her pleas. It was not until she forcefully
pushed him off her and she got away from him that the years of
nonstop molestation—except for the brief period when he was in
the hospital after his 2005 motorcycle accident—ceased.
To family counselors, to police, and to S. Doe, defendant
admitted that what he had done was “wrong,” that it was “over
the line,” and that he would “take it back” if he could. When S.
Doe called defendant in March 2015 with law enforcement
covertly listening in, defendant agreed with S. Doe that he had
“sexually touch[ed]” S. Doe and that it was “wrong” to do so, but
refused to say anything more because he did not “want anybody
else to hear what [he was] saying.”
II. Procedural Background
A. Initial complaint
In March 2015, the People filed a criminal complaint
against defendant alleging 14 felonies arising out of his
molestation of S. Doe.
In a 2015 interview by a defense investigator, defendant
stated that he knew he was charged with having sex with a
3
minor. He reported that he was innocent because S. Doe’s
mother (defendant’s aunt)—who had a “drug abuse problem”—
“was trying to extort money from [him] and his family” by
making up these allegations and then demanding money in
exchange for keeping quiet about them.
B. Adjudication of competency to stand trial
In May 2015, and after defendant’s attorney did the same,
the trial court “declare[d a] doubt as to defendant’s mental
competence” to stand trial and suspended the criminal
proceedings.
The trial court appointed two experts to evaluate
defendant—Dr. Michael Leitman (Dr. Leitman) and Dr. Joy
Smith Clark (Dr. Clark). Dr. Leitman wrote a four-page report
based solely on an interview with defendant; Dr. Leitman
reviewed no other documentation about defendant and did not
administer any tests. Because defendant gave “some bizarre
responses” during that interview—including that he “lived in
bushes,” “loves to ride horses,” and has problems remembering
things—Dr. Leitman opined that defendant “would not be able to
cooperate with his attorney” in his defense. Dr. Clark also
interviewed defendant, and observed that he had “poor eye
contact,” a “flat” “affect,” and what appeared to be “impaired”
“memory function” during that interview. Because defendant
also denied knowing anything about the legal process, Dr. Clark
opined that a “question remains whether there is some cognitive
impairment or deficit,” but that “malingering”—that is, the
possibility that defendant was pretending to have mental
competency issues—“cannot be completely ruled out.”
In November 2015, the parties stipulated to a finding that
defendant was not competent to stand trial based on Dr.
4
Leitman’s and Dr. Clark’s reports. Based on that stipulation, the
court found defendant “mentally incompetent to stand trial” and
suspended the criminal proceedings.
From November 2015 until November 2019, defendant was
housed in two mental health facilities. Those facilities provided
the following progress reports:
● March 2016 report. In a report dated March 2016,
the first facility reported that defendant was “not yet competent
to stand trial.” The report indicated that defendant likely suffers
from “cognitive deficits” such as having “poor concentration” and
being “forgetful,” but that he was also malingering insofar as he
was “exaggerating secondary symptoms [of those deficits] for [his
personal] gain.” Specifically, the report documented that
defendant’s results on the Test of Memory Malingering (TOMM)
“indicate[d] [defendant] was very likely exaggerating memory
impairment at the time of testing.” The report further cited
defendant’s inability to remember his own age as providing
additional evidence of his exaggeration of his memory deficits.
● August 2016 report. In a report dated August 2016,
the second facility reported that defendant was not yet competent
to stand trial because he was “unable to demonstrate adequate
knowledge” regarding court proceedings. Like the prior report,
this report diagnosed defendant as having a “[m]ajor
[n]eurocognitive [d]isorder due to [the] [t]raumatic [b]rain
[i]njury” from his 2005 accident, but that defendant was
malingering by “exaggerat[ing] his deficits.” Specifically, the
report noted that defendant “has great difficulty expressing
himself to his treatment providers but he speaks rapidly and
confidently” to his fellow inmates and to persons on the phone.
5
● March 2017 report. In a report dated March 2017,
the second facility relayed that defendant was still not competent
to stand trial due to his lack of understanding of the nature of the
charges against him. Despite staff working with defendant with
flashcards to teach him court procedure, defendant continued to
express no knowledge. The report noted that defendant’s “brain
injury has left him with a somewhat odd presentation at times,
which in a psychiatric setting, may be mistaken for mental
illness.”
In September 2017, the second facility certified to the trial
court that defendant was competent to stand trial, and submitted
an assessment letter in support of its certification. In the letter,
the facility diagnosed defendant with (1) a “[m]ajor
[n]eurocognitive [d]isorder, [d]ue to a [t]raumatic [b]rain
[i]njury,” resulting in “[m]ild” “behavioral disturbances,” and (2)
“malingering” because he was “intentionally” “exaggerating” the
“genuine cognitive impairments” caused by his neurocognitive
disorder. The letter set forth three reasons for its finding of
malingering: (1) defendant was exaggerating his lack of
knowledge about legal processes because his reported mastery of
court-related information had “actually worsened,” which “does
not make sense from a neurocognitive standpoint,” (2) defendant
was “feigning some cognitive and memory problems” because his
lack of memory was “selective,” insofar as he would accurately
remember certain “names and events” and “provide details,” but
would purport to not remember anything about the charges
against him or the legal process, “despite this being the focus of
treatment for the past 14 months,” and (3) defendant would act
forgetful and nonresponsive when being evaluated, but was
6
“observed speaking rapidly and confidently while using the
telephone and while speaking with his peers.”
After receiving the certification, the trial court appointed
Dr. William Jones (Dr. Jones) to evaluate defendant’s competency
to stand trial. Dr. Jones reviewed a January 2019 evaluation
prepared by an expert retained by defendant named Dr. Michael
Gilewski (Dr. Gilewski). In that report, Gilewski opined that
defendant had a (1) “severe attention, memory, and executive
functioning impairment,” and (2) a “prior diagnosis . . . for
[a]utism [s]pectrum [d]isorder.” Dr. Jones agreed with Dr.
Gilewski that defendant had a genuine neurocognitive disorder
stemming from the 2005 brain injury, but found that defendant
was malingering by exaggerating the deficits from that disorder.
In support of his opinion that defendant was malingering, Dr.
Jones cited (1) defendant’s result on a separate TOMM test Dr.
Jones administered in April 2019, which indicated a “high
likelihood of malingering,” and (2) defendant’s disoriented affect
when being interviewed by experts, as contrasted with
defendant’s affect on 13 recorded jail calls, where defendant
“appeared to be alert and responsive” and engaged in a “higher
level of discourse.”
On May 24, 2019, and based upon the above-stated
information, the trial court declared defendant to be competent to
stand trial and reinstated the criminal proceedings.
C. Resumption of criminal proceedings
In November 2019, the trial court held the preliminary
hearing on the charges in the pending criminal complaint and
held defendant to answer for most of them. The People filed a 13-
count information alleging six counts of engaging in lewd and
7
lascivious conduct with a minor (Pen. Code, § 288, subd. (b)(1)),1
six counts of aggravated sexual assault (§ 269, subd. (a)(4)), and
one count of oral copulation with a minor 10 years or younger (§
288.7, subd. (b)).
D. Defendant’s eve-of-trial challenge to competency
A few weeks before trial was set to begin in late October
2020, defendant’s attorney asked the trial court to declare a
doubt about defendant’s competency and to suspend the criminal
proceedings. Because the request was not accompanied by any
evidentiary support, the trial court denied the request without
prejudice.
On October 19, 2020, defendant moved the trial court to
reconsider its ruling. In support of the motion, defendant
supplied evidentiary support—namely, updated evaluations from
Dr. Gilewski and Dr. Leitman. The trial court ruled that a
motion for reconsideration was procedurally improper, but offered
to construe the defense motion as one to suspend the criminal
proceedings due to defendant’s incompetence.
The court then held a three-day evidentiary hearing on the
question of whether there had been a “substantial change of
circumstances or new evidence . . . casting serious doubt on the
validity of the prior finding of the defendant’s competence.” If so,
the court would declare a doubt about defendant’s competency
and suspend the proceedings; if not, the matter would proceed to
trial. The following evidence was presented at the hearing 2:
1 All statutory references are to the Penal Code unless
otherwise indicated.
2 Defendant’s attorney agreed that defendant would have the
right to a jury trial at a second competency hearing should one be
8
● Testimony of Dr. Gilewski. Dr. Gilewski testified that
(1) he had diagnosed defendant with two new mental
conditions—namely, (a) autism spectrum disorder and (b)
schizotypal personality disorder, which renders defendant “out of
touch with reality,” (2) that the results of the TOMM test (which
indicated that defendant was malingering) did not account for
these two new mental conditions, and (3) a malingering test Dr.
Gilewski administered to defendant (called the M-FAST test) did
not show any malingering. Dr. Gilewski also opined that
defendant’s “mental status has decreased significantly from the
2016 assessment.” Dr. Gilewski acknowledged that the severity
of the charges against defendant and their possible sentences
gave defendant a motive to malinger, but opined that defendant’s
lack of knowledge about trial procedure and his inability to
remember things rendered him not competent to stand trial.
● Testimony of Dr. Leitman. Dr. Leitman testified that
the autism and schizotypal personality disorder had
“contributed” to the earlier findings of malingering, and undercut
the validity of those findings. Dr. Leitman administered
defendant a malingering test (called the SIMS test). Although
the results of that test indicated that defendant was malingering
if the test results were “strict[ly] analy[zed],” Dr. Leitman felt it
was appropriate to ignore those results because defendant
“doesn’t always see the world the same way you and I would.”
● Testimony of Dr. Jones. Dr. Jones did not reexamine
defendant, but reaffirmed that the prior diagnosis of malingering
was still valid because (1) Dr. Gilewki’s diagnosis of autism and
necessary, but that defendant had no right to a jury trial at this
threshold evidentiary hearing to determine the necessity for such
a second hearing.
9
schizotypal personality disorder did not undermine the TOMM
test results because autism exists along a spectrum that includes
people who have a “relatively high intellectual functioning” and
because defendant was not “delusional” (and hence not divorced
from reality, as persons with schizotypal personality disorder
typically are), (2) Dr. Gilewski’s diagnosis, as well as defendant’s
current conduct in rocking back and forth and appearing
distracted and unfocused on reality, was impossible to reconcile
with defendant’s ability to have “linear” conversations about the
real world, as reflected in 13 recorded jailhouse calls in 2018 and
2019 with his family and friends, (3) the M-FAST test Dr.
Gilewski administered was unhelpful because it was designed to
test malingering for “symptoms of severe mental illness” rather
than malingering with respect to one’s memory, which was the
chief deficit stemming from defendant’s 2005 neurocognitive
injury, (4) defendant’s allegedly faulty memory was “selective”
insofar as he could remember some things but not anything about
criminal procedure, (5) numerous other doctors at the second
mental health facility—including Dominique Kinney, Joseph Liu,
Debra Richards and Melissa Jajko—had all independently
concluded that defendant was malingering by exaggerating his
faulty memory, and (6) defendant’s neurocognitive disorder was
not progressive. Dr. Jones frankly admitted that all of this
evidence indicated a “possibility” and “likel[ihood]” of
malingering, but that he could not make any absolute, “for sure”
diagnosis. Dr. Jones acknowledged that, prior to completing his
first report in 2019, the prosecutor assigned to the case at that
time had emailed him to advise him that defendant’s “time” at
the second facility “ha[d] expired,” such that if defendant were
“found incompetent [back in 2019], [defendant could] not continue
10
treatment” and could “essentially no longer be prosecuted for his
crime.” However, Dr. Jones testified that this email did not affect
his analysis because defendant’s release status had nothing to do
with his evaluation of defendant’s mental health.
● Testimony of correctional officers. Two correctional
officers who regularly interacted with defendant testified that
defendant did not display any odd behaviors while in custody
(such as rocking back and forth or giving a “1000-mile stare”),
that defendant interacted normally with other inmates, and that
defendant remembered his name and other details from
conversation to conversation.
● Jailhouse calls. Thirteen jailhouse calls between
defendant and others were introduced. As Dr. Gilewski agreed,
on those calls, defendant’s conversation and thought processes
were not “confused” or “disorganized,” and his “affect” was not
“flat”; to the contrary, defendant on those calls had “focused” and
task-oriented conversations with his family and/or friends.
At the conclusion of the evidentiary hearing, the trial court
gave a detailed oral ruling denying defendant’s motion. As a
threshold matter, the court ruled that defendant had not
presented any “new evidence” because Dr. Gilewski’s diagnosis of
autism “could have been raised at the first hearing” (given that it
appeared in Gilewski’s January 2019 report). More to the point,
the court ruled that neither Dr. Gilewski’s nor Dr. Leitman’s
evaluations casted “serious doubt” on the court’s prior finding
that defendant was competent to stand trial. As the court
explained, the prior finding was based upon the fact that
defendant had been malingering by exaggerating any genuine
impairments he had. Although Dr. Gilewski and Dr. Leitman
now opined that the prior finding of malingering was useless
11
because the TOMM test that supported that finding was invalid
due to the additional autism and personality disorder diagnoses,
the court determined that their new opinions did not cast any
serious doubt upon the prior finding of malingering in light of the
still-undisputed facts that (1) defendant’s faulty memory was
“selective,” because defendant failed to retain information about
the legal system; and (2) defendant was engaging in regular,
reality-based and linear conversations whenever he was not
being evaluated, as the correctional officers’ testimony and jail
calls indicated. The court was “very concerned” by the
prosecutor’s ex parte communication with Dr. Jones, but ruled
that the solitary communication did not undermine Dr. Jones’s
opinion given Dr. Jones’s testimony that it had not affected his
analysis and given that numerous other doctors came to the very
same conclusion about defendant’s malingering. Summing up,
the court explained that the new evaluations did not “indicate
that [defendant] is not competent” and did not indicate that he
lacked “the ability to assist his attorney in the preparation of the
defense.” “The issue,” the court put it, “is not whether [defendant
is] able to [assist his counsel], the issue is whether he’s willing
to.”
E. Trial
Defendant’s trial began in the fall of 2020.
Defendant sought to call Dr. Gilewski as a defense witness
to testify that defendant suffered from two “mental disease[s] or
defects”—namely, autism and schizotypal personality disorder—
that precluded him from forming the specific intent necessary to
be convicted of any of the lewd and lascivious conduct counts.
The trial court excluded this evidence under Evidence Code
section 352, ruling that Dr. Gilewski’s opinion was not
12
particularly probative on the question of defendant’s mental state
at the time of the crimes (that is, between 2003 and 2012) because
Dr. Gilewski’s evaluations all occurred in or after 2019 and
because there was no contemporaneous evidence (from 2003
through 2012) indicating defendant suffered from either
condition. As a result, the court reasoned, Dr. Gilewski’s
backwards-in-time extrapolation that defendant suffered from
these conditions 10 to 15 years earlier was speculative, such that
the probative value of Dr. Gilewski’s testimony was substantially
outweighed by the danger that it might confuse the jury and
result in unfair prejudice.
Defendant took the stand. Notwithstanding his prior
admissions to sexually touching S. Doe, defendant testified that
the only time he touched S. Doe was during “tickle fights” and
that S. Doe’s allegations were the product of S. Doe’s mother
trying to extort $30,000 from defendant to pay off a drug debt the
mother owed. Defendant testified that his prior admissions of
impropriety were lies aimed at placating S. Doe’s mother.
Because defendant, while on the stand, spoke haltingly,
rocked back and forth, and seemed confused, the trial court
permitted defendant to call Dr. Gilewski to testify that defendant
suffered from a major neurocognitive disorder and from autism
spectrum disorder, both of which could explain his
unconventional behavior while testifying. The trial court then
gave an instruction limiting the jury’s use of Dr. Gilewski’s
testimony, informing the jury that persons with “a developmental
disability, or a cognitive, mental, or communication impairment”
were not “any more or less credible than any other witness.” In
rebuttal, the People called two prison officials who testified that
defendant acted normally outside of the courtroom.
13
The jury convicted defendant of all charges.
F. Defendant’s eve-of-sentencing challenge to
competency
Right before sentencing was to occur in February 2021,
defendant’s attorney again moved the court to declare a doubt
about defendant’s competency, to suspend the proceedings, and to
conduct a second competency hearing. This motion was based
upon a January 2021 evaluation performed by Dr. Gilewski, who
opined that (1) additional testing of defendant showed that
defendant was not malingering, chiefly because defendant’s 2005
traumatic brain injury was “exaggerat[ing] the impairment
associated with [defendant’s] autism spectrum and schizotypal
[personality] disorders,” and (2) defendant’s condition was once
again demonstrated by defendant’s confusion during his
presentencing interview with the probation officer, where
defendant purported not to understand Miranda warnings. The
court convened an evidentiary hearing in April 2021. Defendant
submitted on Dr. Gilewski’s updated evaluation. The People
offered transcripts from several more calls defendant made from
jail in February 2021; on those calls, defendant “remembered
things,” “made remarks that were in context consistent with the
conversation,” and was able to “track” the conversational thread
of the other speaker. The probation officer testified. In an oral
ruling, the trial court found that this additional evidence did not
cast any serious doubt on the prior finding that defendant was
competent (because he was continuing to malinger).
After also denying defendant’s pending motion for a new
trial, the trial court sentenced defendant to prison for a term of
105 years to life plus 38 years.
G. Appeal
14
Defendant filed this timely appeal.
DISCUSSION
In this appeal, defendant argues that the judgment against
him must be vacated, not due to insufficient evidence of his guilt,
but rather because (1) he was not competent to stand trial or be
sentenced, and (2) the trial court wrongly excluded Dr. Gilewski’s
proffered trial testimony that defendant’s autism and
neurocognitive injuries precluded him from forming the specific
intent to commit a subset of the charged crimes. Regarding the
first issue, we review the trial court’s competency rulings with
“great deference” (People v. Mai (2013) 57 Cal.4th 986, 1033), and
more to the point, we “review . . . a trial court’s ruling concerning
whether another competency hearing must be held . . . . for
substantial evidence.” (People v. Huggins (2006) 38 Cal.4th 175,
220 (Huggins).) Regarding the second issue, we review the trial
court’s evidentiary rulings for an abuse of discretion. (People v.
Flores (2020) 9 Cal.5th 371, 409.)
I. Defendant’s Competency to Stand Trial
Defendant challenges all three of the trial court’s
competency rulings—namely, (1) the court’s May 2019 ruling
finding defendant had regained his competency to stand trial, (2)
the court’s October 2020 ruling finding that defendant remained
competent to stand trial, and (3) the court’s April 2021 ruling
finding that defendant remained competent to be sentenced.
A. The law of competency to stand trial, generally
The constitutional guarantee of due process as well as
California statutory law provide that criminal defendants may be
tried and sentenced only if they are mentally competent at the
time of trial and sentencing. (People v. Rodas (2018) 6 Cal.5th
219, 230 (Rodas); People v. Medina (1990) 51 Cal.3d 870, 881-882
15
(Medina).) A conviction or sentence imposed upon a person at a
time when they are not mentally competent must be vacated.
(People v. Buenrostro (2018) 6 Cal.5th 367, 386 (Buenrostro).)
The substantive standard for assessing competency is a
function of federal constitutional law and California statute.
Together, they provide that a criminal defendant is mentally
competent to stand trial and be sentenced if he has (1)
‘“‘“sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding,”’”’ and (2) ‘“‘“a
rational as well as factual understanding of the proceedings
against him.”’”’ (Buenrostro, supra, 6 Cal.5th at p. 386, quoting
Cooper v. Oklahoma (1996) 517 U.S. 348, 354; Dusky v. United
States (1960) 362 U.S. 402, 402; § 1367, subd. (a).)
The procedures for assessing competency are defined by
California statutory and decisional law.
1. Initial assessment of competency
If, at any time prior to judgment where felony offenses are
involved, a trial court has a “bona fide doubt” as to whether a
criminal defendant is mentally competent, the court must (1)
suspend the criminal proceedings, and (2) convene a hearing to
determine the defendant’s competence. (§ 1368, subds. (a), (b) &
(c); People v. Mendoza (2016) 62 Cal.4th 856, 884 (Mendoza).) A
trial court should have a “bona fide doubt” about a defendant’s
competency whenever “substantial evidence of [defendant’s]
incompetence is introduced.” (Medina, supra, 51 Cal.3d at p. 882;
Rodas, supra, 6 Cal.5th at pp. 230-231; Mendoza, at p. 884.) The
court’s role in assessing whether there is a “doubt” is narrow—
namely, “to decide whether the evidence of incompetence is
substantial”; the court is “not to resolve” “conflicting evidence
regarding competence.” (Rodas, at p. 234, italics added.)
16
At the hearing on a defendant’s mental competence that is
convened once a trial court declares a doubt, the defendant is
presumed to be competent and thus bears the burden of proving
his lack of competence by a preponderance of the evidence. (§
1369, subd. (f); Buenrostro, supra, 6 Cal.5th at p. 387.) The trial
court appoints experts to assess the defendant’s competency. (§
1369, subd. (a)(1).)
If the trier of fact determines that the defendant is
mentally competent to stand trial or be sentenced, the court
reinstates the criminal proceedings. (§ 1370, subd. (a)(1)(A).) If
the trier of fact determines that the defendant is not mentally
competent to stand trial or be sentenced, then the court must
continue to suspend the criminal proceedings and take action to
attempt to restore the defendant’s mental competence. (§ 1370,
subds. (a)(1)(B) & (b).) If the doctors treating the defendant
indicate that the defendant’s competency has been restored, the
court must convene a restoration hearing to assess whether the
defendant has regained his mental competence and whether the
criminal proceedings may resume. (§ 1372.)
2. Further assessment(s) of competency once a
defendant has been restored to competency
“If, after a competency hearing, [a] defendant is found
competent to stand trial, a trial court may rely on that finding”—
and need not convene a further competency hearing—“unless the
court ‘“is presented [(1)] with a substantial change of
circumstances or with new evidence” [(2)] casting a serious doubt
on the validity of that finding.’” (Rodas, supra, 6 Cal.5th at p.
231; People v. Jones (1991) 53 Cal.3d 1115, 1153.) A substantial
change of circumstances or new evidence “cast[s] a serious doubt”
on the validity of the prior finding only if it “ma[kes] it
17
unreasonable [for the trial court] to continue to rely on the prior
competence finding.” (Rodas, at p. 235.) Consequently, where
the new information “substantially duplicates evidence already
considered at” the prior hearing or any change entails “minor
changes in the defendant’s mental state,” it does not cast a
serious doubt on the prior finding and does not warrant
convening a new competency hearing. (Id. at pp. 234-235; cf. id.
at p. 223 [serious doubt cast when restoration of defendant’s
competency turns on his ingestion of anti-psychotic medication,
and defendant stops taking that medication]; In re Sims (2021) 67
Cal.App.5th 762, 775 [same].)
B. Analysis
1. May 2019 determination that defendant had
regained his mental competency
Defendant asserts that the trial court’s May 2019
determination that he had been restored to mental competency is
incorrect. As noted above, our task is limited to determining
whether the court’s determination of competency is supported by
substantial evidence. It is.
Substantial evidence supports the trial court’s finding that
defendant, although suffering from a neurocognitive disorder
arising out of his 2005 traumatic brain injury, was nevertheless
competent to stand trial because defendant was malingering—
that is, he was exaggerating the deficits from that disorder to
make it seem as if he was incapable of understanding the
proceedings and assisting his attorney. The court’s finding was
supported by four clusters of evidence. First, defendant’s
performance on two separately administered TOMM tests
indicated that there was a “high likelihood” that defendant was
exaggerating his lack of memory (and thereby malingering).
18
Second, defendant’s faulty memory was “selective” insofar as he
could retain knowledge on many topics but never any knowledge
on legal procedures, despite being repeatedly reeducated on those
procedures. Third, defendant’s purported difficulties in
remembering legal concepts was getting worse, despite the focus
on teaching him those concepts and despite the absence of any
reason for a deteriorating condition (let alone such a targeted
deterioration). Fourth, and most significantly, defendant
appeared to have an “on/off switch” when it came to his purported
mental competency issues: Defendant would demonstrate a
faulty memory, a flat affect, a disoriented and confused
demeanor, and hesitation in answering questions when
questioned by evaluators, but would be “alert,” properly oriented
and “responsive,” and would also display a “high level of
[conversational] discourse” when interacting with anyone else,
including during the 2015 phone call with S. Doe, during his
interview with the defense investigator and the police, during his
regular interactions with other mental health patients, and
during the 13 jail calls he made in 2018 and 2019. As our
Supreme Court has noted, a defendant’s own words can
constitute ‘“powerfully persuasive”’ evidence of his competency
(Huggins, supra, 38 Cal.4th at p. 220); here, they most certainly
did.
Defendant resists this conclusion with what boil down to
two arguments.
First, defendant contends the trial court gave too much
evidentiary credence to the “stale, thin, and questionable
[evaluative] reports” from the first facility. In effect, defendant is
asking us to weigh the evidence differently than the trial court.
This is beyond our purview where, as here, we are reviewing the
19
trial court’s finding of competency for substantial evidence.
(People v. Houston (2012) 54 Cal.4th 1186, 1215 (Houston) [“‘We
do not reweigh evidence or reevaluate a witness’s credibility.’”].)
Second, defendant makes the following multistep
argument: Dr. Jones’s opinion (including his administration of
one of the two TOMM tests) was wholly compromised by the
prosecutor’s ex parte contact with Dr. Jones prior to the issuance
of his report; his opinion is entitled to no evidentiary weight
whatsoever; and there is no other evidence supporting the trial
court’s finding that defendant was malingering.
Although we agree with defendant’s position that the
prosecutor’s conduct in sending a court-appointed expert witness
an ex parte communication aimed at influencing his opinion is
egregious, we disagree with defendant’s position that the
prosecutor’s conduct invalidates the trial court’s finding that
defendant’s competence had been restored. Our disagreement
rests on several reasons.
To begin, our task is to evaluate the evidence before the
trial court at the time of its May 2019 ruling, and the fact of the
ex parte communication did not come to light until 2020. (People
v. Panah (2005) 35 Cal.4th 395, 434, fn. 10.) There is also no
support for defendant’s accusation that the prosecutor’s failure to
disclose the ex parte communication at that time violated Brady
v. Maryland (1963) 373 U.S. 83 or the Criminal Discovery Act (§
1054 et seq.), as both of these mechanisms are tied to the
discovery of evidence prior to the adjudication of guilt rather than
competence; further, any discovery error can be harmless
(Buenrostro, supra, 6 Cal.5th at p. 399), and as explained below,
was harmless here. Relatedly, we reject defendant’s suggestion
that the failure to disclose the ex parte communication prejudiced
20
his right to choose whether to have a jury decide whether his
competency had been restored because a defendant has no right
to a jury determination regarding the restoration of competency.
(People v. Murrell (1987) 193 Cal.App.3d 822, 826-827; § 1372,
subd. (c) [determination of “whether or not the defendant . . .
recovered competence” is to be “found by the court”].)
Moreover, Dr. Jones’s opinion is not automatically entitled
to no weight, particularly where, as here, Dr. Jones testified
under oath that he was not influenced by the ex parte
communication. Defendant cites several out-of-jurisdiction cases
as well as California Rules of Court, rule 5.235, but none of them
erects a “one ex parte and done” rule that would apply on the
facts of this case. (Matter of Kenneth C. v. Delonda R. (N.Y. Fam.
Ct. 2006) 10 Misc.3d 1070(A), *44-*45 [ex parte communication
with expert witness does not disqualify the expert]; G.K. Las
Vegas Ltd. Partnership v. Simon Prop. Group (D.Nev. 2009) 671
F.Supp.2d 1203, 1215 [party’s ex parte communication with the
neutral third-party expert that party requested forfeits the
party’s right to use that expert’s opinion]; United States v. Kight
(N.D.Ga., July 12, 2017, No. 1:16-cr-99-WSD) 2017 U.S.Dist.
Lexis 107922, *8-*12 [party should not have ex parte
communication with court’s expert, but not specifying the remedy
for violation]; United States v. Pogany (3d Cir. 1972) 465 F.2d 72,
78 [impartial experts should be used to evaluate sanity]; Cal.
Rules of Court, rule 5.235(c) [prohibiting ex parte communication
with court-appointed evaluators in child custody proceedings, but
not specifying the remedy for violation].)
Lastly, there is ample evidence aside from Dr. Jones’s
testimony that supports the trial court’s finding of restoration of
competency, including defendant’s “on/off switch,” the selectivity
21
of his memory loss, and the inexplicable deterioration of his
memory when it came to knowledge about court procedures.
2. October 2020 ruling not to convene a second
competency hearing
Defendant next asserts that the trial court’s October 2020
decision not to suspend the criminal proceedings in order to
convene a second competency hearing is incorrect. Applying the
standards set forth above, the trial court erred only if there was
(1) substantial evidence of a substantial change of circumstances
or new evidence, and (2) substantial evidence that the change or
evidence casts a serious doubt on the validity of the trial court’s
prior, May 2019 finding of competency. (Rodas, supra, 6 Cal.5th
at p. 231.) Defendant urges that he offered two new pieces of
evidence—namely, (1) the updated opinions of Dr. Gilewski and
Dr. Leitman that defendant also suffered from autism and
schizotypal personality disorder that undercut the efficacy of the
TOMM test as a measure of malingering as to his memory, and
(2) the updated opinion of Dr. Gilewski that defendant’s memory
was deteriorating.
Even if we assume that the additional evaluations
defendant proffered in October 2020 qualify as “new evidence,”
the trial court did not err in determining that this new evidence
did not constitute substantial evidence that cast serious doubt on
the trial court’s prior finding that defendant was competent to
stand trial. As noted above, the trial court’s prior finding of
competency was grounded in its subsidiary finding that
defendant was malingering by exaggerating any deficits he may
have had from the neurocognitive disorder caused by his
traumatic brain injury. The new evidence defendant proffered
was largely aimed at undermining that subsidiary finding of
22
malingering. But that new evidence did not cast serious doubt on
that finding because the two new evaluations in no way undercut
(1) the overwhelming evidence that defendant was regularly
toggling between appearing “out of it” to evaluators and judges,
and being perfectly coherent, capable, and grounded in reality
when interacting with everyone else, and (2) the evidence that
defendant was being selective with his faulty memory, choosing
to pretend he could remember nothing about court processes.
And because the evidence of defendant’s malingering remained
unassailed, the additional evidence that his feigned memory loss
was getting worse cast no doubt on the prior finding of
competency.
Defendant resists this conclusion with a plethora of
arguments, which we have organized into five different clusters.
First, defendant argues that the new diagnoses of autism
and schizotypal personality disorder undermine the results of the
TOMM test; that the TOMM test was the backbone of the trial
court’s finding that defendant was malingering; and that
malingering was the sole reason the trial court concluded that
defendant was competent to stand trial notwithstanding his
outward behavior. Thus, defendant concludes, the new diagnoses
cast doubt on the trial court’s prior finding of competency. This
argument ignores that the TOMM test was only part of the
evidence of malingering, and that the more persuasive evidence
of malingering—namely, defendant’s practice of appearing
impaired during evaluations and interactions with court and
judicial officials but acting normal around everyone else—was in
no way called into question by the diagnoses of autism and
schizotypal personality disorder, which according to Dr. Gilewski,
had existed since defendant’s childhood and yet in no way
23
affected his ability to be fully coherent and rational when
defendant chose to be.
Second, defendant argues that the new evidence regarding
the prosecutor’s ex parte communication with Dr. Jones deprives
his opinion of all weight, thereby casting serious doubt on the
court’s finding of malingering. We reject this argument for all of
the reasons noted above. At oral argument, defendant further
argued that the invalidation of Dr. Jones’s opinion means that
there was no prior finding that he had been restored to
competency, such that we should treat the October 2020 hearing
as a hearing to determine whether his competency had been
restored in the first place, rather than a hearing as to whether
new evidence casted a serious doubt on a prior finding of
competence. Because we have found, as noted above, that the ex
parte communication does not invalidate the trial court’s
restoration of competency finding, that finding would also apply
if we applied the restoration-of-competency standard at the
October 2020 hearing.
Third, defendant asserts that the trial court applied the
incorrect analysis in assessing whether his new evidence
constituted substantial evidence that cast serious doubt on the
prior competency finding. Citing People v. Kaplan (2007) 149
Cal.App.4th 372 (Kaplan), defendant argues that a trial court
may decide only whether there is “substantial evidence”
warranting a further hearing and may not “weigh” the evidence
in making that determination. (Id. at pp. 384-385.) Defendant
misreads Kaplan. Kaplan merely held that the “substantial
evidence” standard “necessary to trigger an initial competency
hearing is the same standard required to trigger subsequent
competency hearings.” (Id. at p. 384.) As our Supreme Court
24
explained in Rodas, a trial court determining whether to convene
an initial competency hearing may not weigh the evidence once it
has determined that there is substantial evidence of a lack of
competence; but the court is still permitted to evaluate the
evidence presented to determine whether it rises to the level of
substantial evidence in the first place. (Rodas, supra, 6 Cal.5th
at pp. 230-231.) By his argument, defendant seems to suggest
that a trial court may not evaluate or weigh whether new
evidence—even if accepted as true—casts a serious doubt on the
prior finding of competency; but accepting defendant’s suggestion
would mean that any new evidence—no matter how flimsy or
how it fits into the overall tapestry of other evidence—would
mandate a new competency hearing. We reject this suggestion
because it would give no weight to the court’s prior finding of
competency, a result that flatly contradicts our Supreme Court’s
instruction to the contrary; Rodas conditions a further
competency hearing on a showing of substantial evidence that
casts a “serious doubt” on the prior finding of competency, not on
evidence that merely suggests any doubt. The trial court used
the proper analysis in this case because it accepted Dr. Gilewski’s
and Dr. Leitman’s evaluations at face value, but determined that
they did not rise to the level of casting serious doubt on the
court’s prior finding of malingering in light of the overwhelming
other evidence of malingering that was unaffected by the new
evaluations.
Fourth, defendant urges that the trial court’s analysis of
whether there was substantial evidence that the new evaluations
cast serious doubt on the prior finding of competency was flawed
because the court (1) gave greater weight to the reports from Dr.
Jones and from the second mental health facility, which was
25
error because those reports were not as recent as the ones from
Dr. Gilewski and Dr. Leitman, (2) relied on the jail calls from
2018 and 2019, which was error because they were old, (3) gave
insufficient weight to the effect of the ex parte communication on
Dr. Jones’s opinion, which was error because the court should
have viewed the ex parte communication as dispositively
negating any weight of Dr. Jones’s opinion, (4) gave too much
weight to Dr. Jones’s testimony when he just read the transcripts
of the 2018 and 2019 jailhouse calls, which was error because Dr.
Gilewski listened to less than half of them (six out of the 13
calls), and (5) gave too much weight to the custodial officials’
reports of defendant’s ability to interact in a normal manner over
the opinions of defendant’s paid experts. In all these arguments,
defendant is urging us to reweigh the evidence; we cannot.
(Houston, supra, 54 Cal.4th at p. 1215.) What is more,
defendant’s characterization of the evidence is unduly skewed:
Defendant complains that Dr. Jones’s opinion is less worthy of
credence because he only read the transcripts of defendant’s 13
jail calls, but both of defendant’s experts—Dr. Gilewski and Dr.
Leitman—also relied chiefly or solely on the transcripts as well;
further, Dr. Gilewski testified that his review of the audio of
some of those tapes showed defendant neither “stutter[ing]” nor
“delay[ing]” his responses to questions, which obliterates the
notion that defendant’s oral presentation would have created a
different impression than merely reading the transcripts.
Defendant’s argument also ignores the law, which has affirmed
the propriety of considering “testimony from police or jail
personnel regarding the defendant’s apparent mental state.”
(Medina, supra, 51 Cal.3d at p. 887.)
26
Lastly, defendant contends that the trial court’s ruling is
defective because (1) the court mistakenly relayed that Dr. Jones
had definitively diagnosed defendant as malingering, when Dr.
Jones had actually testified that malingering was “highly likely,”
and (2) the court neglected to rule on both prongs of the
competency test. Defendant is wrong on both scores. Because we
are examining the sufficiency of the evidence irrespective of the
trial court’s actual rationale (e.g., People v. Zapien (1993) 4
Cal.4th 929, 976), any error in the trial court’s characterization of
Dr. Jones’s testimony is irrelevant if we otherwise conclude that
the evidence—properly viewed—does not amount to “substantial
evidence.” As explained above, we have so concluded. In any
event, the evidence of malingering (from defendant’s ability to
turn his ailment on and off at will to his selective memory) is
overwhelming even though Dr. Jones was careful to speak in
probabilities rather than absolutes. The court’s ruling is also
sufficient. Although the court only specifically referenced
defendant’s “ability to assist his attorney in the preparation of
the defense,” the court more broadly found that defendant’s
proffered evidence did not call his “competence” into question.
Because “competence” necessarily includes the additional finding
that a defendant has a ‘“rational as well as factual understanding
of the proceedings against him”’ (Dusky, supra, 362 U.S. at p.
402), and because the trial court considered—and necessarily
rejected—Dr. Gilewski’s diagnosis of schizotypal personality
disorder that meant that defendant was operating in an alternate
reality, we may comfortably infer that the trial court’s
competence finding encompassed both aspects of the competency
test. (E.g., Lynn v. George (2017) 15 Cal.App.5th 630, 642 [“In
the absence of an express finding, we usually would infer that the
27
trial court made implied findings to support its decision, and then
test the implied findings for substantial evidence.”].)
3. April 2021 ruling not to convene a second
competency hearing
Defendant lastly contends that the trial court’s April 2021
decision not to suspend the criminal proceedings prior to
sentencing in order to convene a second competency hearing was
incorrect. Defendant urges that he offered two new pieces of
evidence—namely, (1) a further updated opinion of Dr. Gilewski
that defendant was not malingering based on administering him
another malingering test, and (2) defendant’s “confused”
presentence interview with the probation officer. The trial court
did not err in concluding that those items of evidence did not
constitute “substantial evidence” that “casts serious doubt” upon
its prior finding of competency. Dr. Gilewski’s report is repetitive
of all of his prior reports, and the additional testing and opinions
he offered in this latest report in no way undermined or
otherwise impeached the evidence of defendant’s ability to turn
his odd behavior on and off. And defendant’s confused affect with
the probation officer is no different than his confused affect in
front of the jury and the many psychologists who have evaluated
him; more to the point, it adds nothing to the mix of evidence or
the fact that all of those instances were the product of
malingering. Defendant argues that Dr. Gilewski’s most recent
report should be given greater weight and that Dr. Gilewski is a
more persuasive witness. Alas, this is yet another invitation to
reweigh the evidence that we must respectfully decline.
II. Evidentiary Ruling
Defendant argues that the trial court erred in not allowing
Dr. Gilewski to testify that defendant’s autism and schizotypal
28
personality disorder precluded him from forming the specific
intent that is an element of the six lewd and lascivious conduct
counts, such that those particular convictions must be vacated.
Relatedly, defendant argues that the trial court also committed
an instructional error because the court would have been
required to instruct the jury on how a mental disease or defect
can negate specific intent if Dr. Gilewski’s testimony had been
admitted. Because defendant’s claim of instructional error
hinges on whether the trial court made an incorrect evidentiary
ruling, we start with the evidentiary ruling.
Contrary to what defendant implies, the trial court did not
exclude Dr. Gilewski’s testimony as irrelevant; instead, the court
excluded it under Evidence Code section 352 on the ground that
its probative value was substantially outweighed by the danger of
unfair prejudice, confusing the jury, undue consumption of time,
and the like. (Evid. Code, § 352.) The trial court did not abuse
its discretion in so holding.
The court did not abuse its discretion in ruling that Dr.
Gilewski’s testimony had little probative value because the court
had an ample basis to conclude that his testimony was
speculative: Dr. Gilewski reasoned that defendant suffered from
autism and schizotypal personality disorder between 2003 and
2012 because defendant suffered from them in 2019, but Dr.
Gilewski freely admitted he had no contemporaneous evidence
that defendant had either affliction during the relevant 2003 to
2012 timeframe.
The court also did not abuse its discretion in ruling that
any probative value this evidence had was substantially
outweighed by the dangers of undue prejudice and confusing the
jury because the speculative basis for Dr. Gilewski’s opinion left
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the jury to guess whether defendant’s current afflictions
somehow “related back” to the time of the crimes. The testimony
would also have been unduly prejudicial to the People because it
would have raised the specter of a mental health defense without
any support that defendant’s alleged mental conditions actually
precluded the formation of defendant’s specific intent at the time
of the charged crimes. What is more, admitting this evidence
would undoubtedly have opened the door for the People to
respond with evidence that Dr. Gilewski’s entire diagnosis was
wrong because it was the product of years of malingering by
defendant. Given the volumes of reporter’s transcripts devoted to
these very topics prior to trial, the trial court acted within its
discretion in concluding that relitigating this issue before the jury
on the basis of a speculative expert opinion was a basis for
excluding Dr. Gilewski’s testimony under Evidence Code section
352.
Defendant offers two arguments in rejoinder. First, he
asserts that he has a constitutional right to present a defense.
This is true, but that right does not trump the rules of evidence,
including Evidence Code section 352. (People v. Robinson (2005)
37 Cal.4th 592, 626-627 [‘“[A]s a general matter, the ordinary
rules of evidence do not impermissibly infringe on the accused’s
[state or federal constitutional] right to present a defense.”’].)
Second, defendant asserts that People v. Sotelo-Urena (2016) 4
Cal.App.5th 732 warrants reversal. It does not. That case dealt
with whether it was error to exclude expert testimony that
persons who are homeless have a heightened sensitivity to being
threatened because that evidence was relevant to a claim of self-
defense. (Id. at pp. 745-746.) This case is very different, as it
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deals with whether it was error to exclude speculative expert
testimony under Evidence Code section 352.
In light of our conclusion that there was no evidentiary
error, we need not reach the instructional error or issues of
prejudice.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
CHAVEZ
_________________________, J.*
BENKE
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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