People v. Wycoff

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
EDWARD MATTHEW WYCOFF,
Defendant and Appellant.
S178669
Contra Costa County Superior Court
5-071529-2
August 23, 2021
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Kruger, and Groban concurred.
PEOPLE v. WYCOFF
S178669
Opinion of the Court by Jenkins, J.
Defendant was charged with the first degree murders of
his sister and brother-in-law. (Pen. Code, § 187.)1 The
information also alleged, as to each murder, a multiple-murder
special circumstance allegation (§ 190.2, subd. (a)(3)) and
enhancement allegations based on the use of a deadly or
dangerous weapon (a knife and a wheelbarrow handle) (§ 12022,
subd. (b)(1)). During pretrial proceedings, a psychologist
examined defendant at the request of the court and issued a
report stating that, due to “severe mental illness,” defendant
had “a misperception of [his lawyers’] motives, a
misunderstanding of the risk involved [in his case], a
minimizing of the precariousness of his predicament, and
impaired judgment.” The psychologist’s report added: “Because
of his grandiosity, [defendant] is not able to rationally consider
‘telling his story’ with the assistance of an attorney. On this
ground, I find him incompetent to stand trial.” There was no
expert evidence in the record contradicting that conclusion. The
trial court, however, rejected the psychologist’s opinion without
initiating the competency procedures set forth in sections 1368
and 1369, concluding instead that defendant was mentally
competent.
1
All further statutory citations are to the Penal Code.
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At his guilt trial, defendant waived his right to counsel,
represented himself, and testified in his own defense. He
treated the trial like an entertainment show, made numerous
jokes, and admitted all the facts underlying the charges. After
deliberating for less than two hours, the jury convicted him of
both counts of first degree murder and found true, as to both
murders, the special circumstance allegation and the
enhancement allegations.
Defendant again represented himself at the penalty
phase. He continued to engage the jury in ways that illustrated
his mental illness and grandiosity. The jury took about an hour
to return a verdict of death.
Defendant’s jocularity continued at sentencing. At
defendant’s request, the court held the sentencing on
defendant’s birthday. On that day, defendant said: “Welcome
to my birthday party. [¶] Is everyone having fun? Is everyone
having a good time?” The court then sentenced defendant to
death for each of the murders.
This appeal is automatic. (§ 1239.) We reverse the
judgment as to both guilt and penalty on the ground that, before
the guilt trial, the court was presented with substantial
evidence of defendant’s mental incompetence — specifically, his
inability, due to mental illness, to consult rationally with
counsel — and therefore the court was obligated to initiate the
competency procedures set forth in sections 1368 and 1369,
which it failed to do. In light of this conclusion, we do not
address the remaining issues defendant raises on appeal.
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I. FACTS
A. Guilt Phase
1. The Prosecution’s Case-in-Chief
Julie and Paul Rogers were murdered in their home in El
Cerrito in the early morning hours of January 31, 2006. Two of
their children — Eric (age 17) and Laurel (age 12) — were also
home at the time. A third child, Alex, was away. The children
awoke to the sound of a struggle. Eric looked into the hallway
and saw a large-framed person,2 dressed in black, wearing a
motorcycle helmet. The person was struggling with someone,
whom Eric took to be one of his parents. Eric went into Laurel’s
room and called the police. When the noise of the struggle
subsided, Eric and Laurel found their father, Paul, face down on
the floor in the master bedroom, with a knife in his back. Paul
told Laurel, “It was your uncle.” When Laurel asked if he meant
her Uncle Ted, Paul nodded in agreement.3
About this time, police arrived. In the master bedroom,
they found Paul, still alive, lying on his stomach. He had a bump
on his forehead and stab wounds in his back. One of the officers
asked Paul who had attacked him, and Paul answered: “My
brother-in-law Ted.” Paul was not able to give any more details
before he died. Another officer followed a trail of blood down the
hallway, through the kitchen, and out the sliding glass door. He
located Julie near the swimming pool. She was bleeding
profusely but breathing. She had a large wound to her abdomen,
2
Defendant testified that at the time of the murders he was
6 feet 5 inches tall and weighed 300 pounds.
3
Defendant — Julie’s brother — goes by the name Ted
among family.
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exposing her intestines. She was transported to the hospital,
but efforts to save her life were unsuccessful.
Defendant was arrested a few hours after the murders, at
a hospital near his home in Citrus Heights. At the time of
arrest, he had a cut on his left hand and a large cut on his right
leg. He also had various scratches and abrasions on his chin and
hands. Items that matched debris at the murder site were found
in his van and home. The next day, February 1, 2006, officers
interviewed defendant after advising him of his rights. (See
Miranda v. Arizona (1966) 384 U.S. 436.) The interview was
recorded and admitted into evidence. In the interview,
defendant confessed that he had committed the murders and
also that he had planned them in advance. He explained that
Julie and Paul “were really bad, rotten people.” Paul was a
“communist” and “way over to the left.” Julie and Paul were lax
parents who drank in front of their children, maintained a filthy
home, and neglected their dogs. As a result, the children were
undisciplined and disobedient. Defendant thought that after
killing Julie and Paul, he could “offer the kids to come live with
[him]” and “raise them right.”
Defendant chose January 31, 2006 as the day for the
murders, because that was the 20th anniversary of the day his
father had knocked down his grandmother, causing her to break
her hip. He decided against using a gun for the murders,
because he did not want the murders to be “another statistic
that liberals could use” to argue in favor of gun control.
Therefore, he chose to commit the murders with a knife,
although he also bought a wheelbarrow handle.
When he arrived at Julie and Paul’s house to commit the
murders, defendant began to have second thoughts. He
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explained to his police interviewers: “For like several minutes,
I was going through my mind, okay, this is what I’m gonna do,
this is where I’m gonna go, rehearsing it in my mind. And I just
really didn’t want to do it, but I told myself this is something
that has to be done. These are horrible, rotten people, and, you
know, what they’re doing to their kids. It’s just something that
has to be done. And I forced myself to do what had to be done.”
Defendant then entered the house by smashing the window next
to the front door. As a result, the wheelbarrow handle broke in
half. Defendant found Julie and Paul awake. He stabbed Paul,
but the knife got stuck. He then went after Julie, following her
out the backdoor. He hit her and stabbed her with the broken
wheelbarrow handle. Then, he fled.
Defendant also described for the police various grievances
he had against his sister, including the division of their father’s
estate and the care being provided for an elderly aunt, but more
generally, defendant believed that Julie and Paul were evil
people. He said: “I set out to make the world a better place.
And I set out . . . , you know, to [¶] . . . [¶] fight against evil.”
About killing people, he said, “It’s murder. It’s wrong,” but he
added: “What I did, I don’t . . . see it as murder, you know. I see
it as something, you know, a bunch of moral steps that had to be
taken. [¶] . . . [¶] I felt that [Julie’s] life was getting more and
more screwed up, and she was screwing up her kids. And she
was screwing up everyone else, everything around her. And
they had just turned into some really evil people. [¶] . . . [¶] I
do believe in self-defense. And I think it’s okay to, you know, do
something like this in self-defense.” He further explained: “This
is something you do to somebody when they deserve it, you
know. I don’t like this kind of stuff.” In the same vein, he said:
“Well, you know, I’m kind of happy because, you know, I guess
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you could call it leveling. I may have leveled some karma, you
know. I stopped an evil person in this world that had too much
power. [¶] I mean some people like, you know, Adolf Hitler, you
know . . . , if you could just kill Adolf Hitler before he did what
he did.”
Other prosecution evidence included notes taken by a
reporter from the Contra Costa Times. The parties stipulated
that if called as a witness, the reporter would testify that he
visited the Martinez jail on Friday, February 3, 2006, and
defendant confessed to him. According to the reporter’s notes,
defendant repeated several of the things he had told the police,
including his opinion that the murders were necessary to
eliminate “bad people” who were politically “liberal,” thus
“mak[ing] the world a better place.” In addition, on June 4, 2009
(shortly before jury selection), officers searched defendant’s jail
cell and found handwritten poetry. The poems were in the form
of confessions, describing the murders in a triumphant tone and
with gruesome detail.
2. The Defense Case
a. Defendant’s Testimony
As noted, defendant represented himself and testified
during his trial. His apparent strategy was to relate the entire
story of his lifelong relationship with his sister, hoping to
persuade the jury that he only did what needed to be done. The
trial court allowed the testimony — which included lots of side
stories, hearsay, and speculation — for the limited purpose of
enabling the jury to evaluate defendant’s state of mind at the
time of the murders. Defendant’s testimony repeated the details
that he had described in his police interview. He generally
portrayed Julie as manipulative and selfish, seeking to cheat
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him out of his inheritance, and he portrayed Paul as weak and
closely allied with Julie in her effort to cheat him.
Eventually, defendant decided to kill his sister, but he
thought it was a “big thing” to do, so he climbed a hill in the
desert near Mojave and prayed about it. He asked God to
intervene to stop him — perhaps by creating a traffic accident —
if God did not want him to follow through with his plan. Then
he heard a rumbling sound in the sky. (Edwards Air Force Base
is located near Mojave.) Defendant understood the rumble to
mean “prayer received,” and during the next week, everything
was normal — that is, there was no unusual circumstance that
obstructed defendant’s plan. Then, Julie, who was having her
house renovated and needed to store excess furniture, arranged
to have a piano shipped to defendant’s home in Citrus Heights.
Defendant recalled that 20 years before, when his father had
knocked down his grandmother, the underlying dispute between
his father and his grandmother had been about moving a piece
of furniture. In defendant’s mind, Julie’s decision to move the
piano “matched.” Defendant told the jury: “Now, if that is not
a sign from God to kill Julie and Paul, then I don’t know what
is.”
b. Cross-examination
On cross-examination, defendant readily admitted that he
planned and intended both murders, and he added that he
would celebrate them. The prosecutor asked: “You mean the
fact that they died on January 31st, you’re going to celebrate
that?” Defendant responded: “Oh, of course. You know, . . . it’s
not a good thing to have to do, but, you know, it had to be done.
But, you know, it is something to celebrate when you get some
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awful person that is ruining people’s lives, . . . and you make a
correction like that.”
Defendant also said about Julie and Paul’s deaths: “I’m
proud of that. I accomplished something.” He expressed anger
that Julie did not work, though his parents had paid for Julie to
go to college, whereas he worked, and he had paid his own way
through trucking school.
3. Closing Argument
Defendant began his closing argument by asserting that
the prosecutor was a “bad little man” for presenting trial
exhibits that depicted Julie’s naked dead body. He also called
the prosecutor the “persecutor,” which was a nickname he used
several times throughout the trial. Defendant had earlier joked
that, whereas the prosecutor represented “the People,” he
represented “the person.” During closing argument, defendant
repeated this joke, saying: “Well, anyway, [the prosecutor]
doesn’t represent the People. The person represents the
People. . . . The person represents the People more than the
People do.” About the poems he had written describing the
murders, he argued that “it’s good to write songs and dance
about tyrants getting beaten,” and he offered the Star-Spangled
Banner as an example. Later in his argument, he said: “I do
not deserve punishment for this. I deserve award and reward
and to live a beautiful, peaceful life for this. You know, people
need to look up at me and appreciate me for this . . . .” He also
characterized himself as a heroic vindicator of good over evil. He
said: “A favorite saying of mine is, The only thing necessary for
the triumph of evil is for good men to do nothing. Well, I am a
good man, and I sure as hell did do something.”
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4. Verdict
The jury deliberated for less than two hours. It found
defendant guilty of both counts of first degree murder. It also
found true, as to both murders, the multiple-murder special
circumstance allegations and the deadly weapon enhancement
allegations.
B. Penalty Phase
1. Defendant’s Opening Statement
Defendant began his opening statement with this
comment: “For the wrong decision that was made yesterday,
when do I get to beat the amoral tar out of these lumpers?”4
Then, discussing the murder of Julie and Paul, he said: “I
played judge, jury, and executioner. It was cheap. It was, you
know, not millions of dollars like all of this.”
2. The Prosecution’s Case in Aggravation
The People introduced out-of-court statements defendant
had made on January 31, 2006, and February 1, 2006, when
being booked. During booking, defendant asked: “How often do
you get something like me in here that does something like
that?” He also commented: “You know, I should be executed for
this. I believe in the death penalty. That’s the way it should go
down. I . . . believe in the death penalty. And I should be
executed. I mean I think it would make society a more moral
place if this was handled the way it should be handled.”
The prosecution also introduced recordings of 10 telephone
calls defendant made while in custody. In one call, defendant
4
A “lumper” is “a laborer employed to handle freight or
cargo.” (Webster’s 9th New Collegiate Dict. (1990) p. 710.) It is
a term often used in the trucking industry.
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said he did not want to receive any psychological treatment: “I
do not want to go that route. And, uh, I don’t want to believe
that. Because, uh, the thing is — I made a moral choice, and I
don’t think there’s nothing sick about making a, uh, moral
decision. I mean, I, uh, believe that, uh, my sister and brother-
in-law were evil and needed to be taken out. And, uh, that’s
that. I had it all planned out. I planned to raise their kids. And
take care of everything. But, uh, it, it, it, uh, didn’t turn out
right.” In another call, defendant said that Julie had married
into a “screwed up” family of “faggots.” In a third call, defendant
said: “I’m just one trait away from being a serial killer.” He
added: “I have the ability to go out into the world and . . . just
kill people. And enjoy doing it. [¶] . . . [¶] . . . There’s just one
thing, though. I have moral values. And . . . that’s the thing
that keeps me in check is I have morals, and I try to do good, do
good, do good. And . . . it keeps that in check. Now the thing is,
I screw up from time to time. You know. . . . [¶] . . . [¶] And it
doesn’t affect me at all.” Then he repeated: “I’m just one trait
away from being a real serial killer that just kills people for the
fun of it.”
Later in the same conversation, defendant commented
about his frequent involvement in vehicle accidents like a
“truck[] getting hit by a train” and “a truck get[ting] burned.”
He said: “Now, I didn’t do these things on purpose. [¶] . . .
[¶] . . . But the thing is, I wonder . . . if my subconscious mind
makes these things happen. I enjoy these things. I mean, the
serial killer in me enjoys these things, but I don’t do ’em on
purpose. I don’t, you know, screw all that stuff up on purpose,
but . . . since I do enjoy ’em, I wonder if my subconscious mind
kinda makes it happen every now and then. [¶] . . . [¶] No, . . .
I don’t try to screw that stuff up. But when it happens, I get out
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the video camera, and I videotape it and explain what happens
and show the damage . . . , and believe me, there’s a hell of a lot
of videotapes of that. I mean, . . . it would just blow you away,
the videotapes of damage and destruction on the road. [¶] . . .
[¶] . . . I’m talking hours, hours, hours.” With specific reference
to his video of the collision between a train and a truck,
defendant said: “When I see people watching the videotape with
their mouths agape, I know that I made a good videotape. I
know that I’m doing something right.”
The prosecution also read into the record two letters
defendant wrote while in custody. In the first letter, dated April
6, 2006, defendant wrote that he was not like Ted Bundy or the
Unabomber, because they are “serial murderers, two bad people
who like to harm others.” He added: “I’m a good person who
killed two bad people who liked to harm others.” Defendant also
wrote that in most murders, the killer is evil, and the victim is
good. In his case, however, he was the “good guy.” He said: “I
am the victim, not the criminal.”
Defendant began the second letter on August 1, 2006, and
he completed it on September 11, 2006. In the letter, he argued
that he should be rewarded with paradise for what he had done.
He then described paradise as a place where he would “spend
[his] time playing with explosives and blowing stuff up.” At
several points in the letter, he wrote the words “Red rum,” and
at the end of the letter, he revealed that “Red rum” was “murder”
spelled backwards. Defendant also wrote: “I am facing first
degree multiple murder charges, and I am facing the death
penalty. This is the ultimate charge and the maximum
punishment. [¶] Right now I can rob a bank, steal a car, or even
kill again, and this state couldn’t punish me one bit more. I have
achieved the ultimate.”
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In addition, the prosecution presented victim impact
evidence. Paul’s brother Kent discussed the difficulty of caring
for Paul’s children after the murder of their parents. Doug
Bowman testified that he had grown up with Paul and described
the many noble qualities of both Julie and Paul. Julie and Paul
“didn’t see people as bad, they saw them as what they were, and
they really cared for other people, and that was the people they
were.”
Eric and Laurel also testified, describing their parents in
positive terms, and also relating the personal difficulties they
faced after the murders. Eric said: “Something that is really
important in describing both of them is that, they didn’t believe
in, like, bad people, like, we struggled growing up, we got in a
lot of trouble, and they never thought that we were bad, just that
our actions maybe needed adjusting, and they were not
vengeful. They wouldn’t react out of anger . . . .” On cross-
examination, defendant asked Eric about the penalty decision
then before the jury, and Eric said: “It would be wrong for you
to get the death penalty, you specifically, because you’re
mentally childish. You’re very immature for your age. [¶] I
know people who have known you for a long time, and they say
you haven’t changed much since you were about nine years old.”5
3. The Defense Case in Mitigation
a. Direct Examination of Defendant
Throughout his testimony, defendant continued his habit
of calling the prosecutor the “persecutor,” and he said that he
5
This answer was consistent with a trial court ruling that
allowed Eric to testify about the appropriate penalty only in the
context of describing defendant’s character.
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(defendant) had “won that free trip to Prisneyland,” a play on
the word “prison.” He then commented that “this audience was
comically challenged,” and he specifically mentioned the fact
that his tie was tied in the shape of a hangman’s noose. He next
complimented Eric, adding: “I did a good job in getting rid of the
parents, it was a good thing to do, it helped a lot.” He also said:
“Some people think I’m a bad man or an evil man, but you know,
if I was . . . really an evil man, I would have killed the kids right
there, but I didn’t do that, see. So, I am a good person for that.”
Referencing his statement that he was “one trait away
from being a serial killer,” defendant conceded that it was true,
arguing that he “used it positively” by killing only when
necessary. He said: “What I meant was, you know . . . , I can do
stuff like this, you know, I got the ability, but my wanting to do
good, my morals keep me in check. . . . But what proves that I’m
a real man is that, if I have to do something like this, I will do
it.” Then, about the death penalty, he said: “It’s wrong to just
throw a person away like that.”
Defendant also testified that he had saved the state money
by killing bad people without the need for a costly trial, saying
that he had “played judge, jury, and executioner.” In addition,
he pointed out the humor in the recording of him talking to his
uncle on the telephone while a cuckoo clock sounded in the
background. He said: “I was telling him what happened” and
“while I am talking about all this crazy stuff, you hear this dome,
cuckoo, dome, cuckoo, dome, cuckoo. . . . Uncle Charlie probably
heard that and thought, yeah, he is cuckoo.” Defendant also
mentioned his usefulness to society: “The world out there could
really use a man like me. They need a man like me to protect
America’s explosive supply and stuff.”
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Defendant next introduced into evidence 25 homemade
video recordings, showing his various adventures. While the
video-player was being set up, defendant coughed and then
joked: “Wow, I almost choked to death on this water. I almost
saved this state thousands of dollars in death penalty fees. [¶]
Oh, well, I guess there will still have to be an execution.”
The videos were then played for the jury. Several of the
videos showed defendant enjoying nature and socializing with
friends and family, including with Julie and Paul and their
children. Other videos demonstrated that defendant was an
experienced and resourceful truck driver. Generally speaking,
the videos presented defendant as an amiable person with a
keen sense of humor, although one who finds entertainment in
things that are dangerous, transgressive, or out of the ordinary.
For example, one video depicted defendant lighting bottle
rockets indoors and playing recklessly with a blowtorch.
Another showed defendant gleefully giggling about the danger
of working with explosives. Several videos showed defendant
explaining truck accidents that had just occurred, defendant
usually taking great delight in the drama of the accident. One
video depicted events that transpired immediately after
defendant’s truck engine caught fire. Although the fire was
relatively small and manageable when it began, defendant did
not retrieve the fire extinguisher from his truck, instead getting
his video camera. Defendant’s failure to extinguish the fire
resulted in the destruction of his truck, and it nearly caused a
major brush fire.
Defendant ended by reiterating that he was the true
victim even though “society” was going to condemn him: “I
looked at everything, and I realized no one is going to care about
me, no one is going to care that I was truly the victim in this.
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They were going to say they were the victims, Julie and Paul
were the victims . . . they are not going to see me as the
victim . . . . [¶] And . . . it just hit me, wow, from the way society
sees it, I should get executed for this. And I saw it coming. I
knew this trial was coming. Four years ago, [four] years in the
making, I seen it coming, and it just hit me. My God, the way
society sees this, I should get executed . . . .” He added: “These
people of El Cerrito should thank me and be happy with me as
a person for removing two crooks, two rip-off artists from their
city. [¶] . . . I don’t like to kill, but when I have to kill, I will kill.
Sometimes it’s something that needs to be done, and I will do it.”
b. Cross-examination of Defendant and Rebuttal
Evidence
The prosecutor cross-examined defendant extensively
regarding the video recordings defendant had introduced,
probing whether defendant was in fact the cause of the various
problems he purported to be fixing. In response to a question
about whether defendant made an effort to avoid damage to his
vehicles, defendant said: “I’ve got a little bit of that serial killer
in me. When something breaks, I enjoy it. I have fun with it. I
videotape it.” Defendant also stated more than once that it was
his prerogative to decide between what was moral and what was
immoral, and that if someone wronged him, he was entitled to
get even by stealing from that person or resorting to other forms
of self-help. “I’ll pay evil for evil,” he asserted. In that context,
defendant admitted several incidents of petty criminal behavior
and hooliganism.
The prosecutor also offered into evidence a video of
defendant displaying a dead cat and describing the fact that he
shot the cat twice and then beat it to death with a stick. In the
video, defendant related that the cat belonged to a neighbor,
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Curtis, and defendant said it was the second of Curtis’s cats that
defendant had killed. Later in the same video, defendant
described “cat war one” and “cat war two,” which together
included 17 “confirmed cat kills” and many other possible “cat
kills.”
In addition, the prosecutor offered a video in which
defendant lamented graffiti and garbage behind a strip mall
near his house. In the video, defendant explained that he used
the private road that accessed the loading docks behind the strip
mall, and he was angry that, due to the graffiti and the dumping
of garbage, the owner had installed gates at either end of the
private road. Defendant expressed an intent to vandalize the
gates. In his view, installing the gates punished innocent people
who used the private road as a shortcut, and the better solution
was for the owner to shoot and kill the immoral people who were
vandalizing the area and dumping the garbage. He also said
that he hated a particular woman who was feeding cats behind
the strip mall, and he said he would kill her.
Finally, the prosecutor elicited from defendant that he saw
himself as an executioner, not a murderer. Defendant said:
“Should the executioner be executed? No. The executioner is
doing a job.” Defendant also explained that he was well
qualified to decide who should be punished and who should not
be, because his mind was “not cluttered” and “not polluted” by
education. The prosecutor closed his cross-examination with
this question: “But you might kill somebody if they left trash
behind the warehouse or fed cats, correct?” Defendant
answered: “Well, I might do that, yes.”
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c. Redirect Examination of Defendant
On redirect, defendant quoted a newspaper horoscope
urging him to defend his past actions: “ ‘Stick up for what you
have done in the past.’ That’s what my horoscope said in
yesterday’s newspaper. No joke. Sagittarius.”
4. Defendant’s Closing Argument
During closing argument, defendant repeated familiar
themes about Julie and Paul being bad people and bad parents,
and about how he had solved the problems and thus helped the
children. He said: “I chose to better everyone else around me,
you know. That’s what I’m doing. I’m trying to better everyone.
Trying to make everyone happy. I tell these wonderful jokes,
and I’m a good person for that, see.” Defendant also argued that
he had helped Julie and Paul’s children by making them less
trustful.
Defendant described the trial as a “satirical comedy” in
which his role was that of court jester. He said: “Yesterday, you
know, yesterday the mood in this courtroom got grim towards
the end. It was unlike the other day where I livened it up with
the videos and everything. I talked first, and then [the
prosecutor] got in there, but the mood got pretty grim at the end
of yesterday. And then it was over, we all went home. And you
didn’t have Uncle Edward to liven it up, but I’m not the one that
broke down the attitude and the moods in this courtroom, I’m
not the one that broke it down. This man put on this show and
depressed everybody, not me, where a couple of days ago . . . I
picked it back up with my show. I livened it up. I turned the
satirical comedy into a better happy comedy.”
Defendant then said: “All of the kids were messed up, but
I fixed them. I’m . . . the fixer. I’m the corrector. I corrected
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this.” Finally, after threatening the prosecutor, defendant
concluded his argument by reminding the jury of Eric’s
statement that he (defendant) should not receive the death
penalty, adding: “I’m his favorite uncle, and he appreciates
everything I done for him.”
5. Verdict and Sentencing
After deliberating for about an hour, the jury returned a
verdict of death as to both counts. At defendant’s request,
sentencing took place on defendant’s birthday.
In regard to the automatic motion to modify the death
verdict (§ 190.4, subd. (e)), defendant addressed the court,
saying: “You should not sentence me to punishment. Instead,
you should set me free. You know, just . . . walk out of here, be
done with this. And I can get back to truck driving and making
videotapes and running people off the road and things, and, you
know, get on with my life, what I was doing before, blowing stuff
up and things, and everyone can be happy. I’ll be a happy person
in society again.” The trial court denied the automatic motion.
In regard to defendant’s sentence, Julie and Paul’s son
Eric addressed the court, making a statement in opposition to
the death penalty. Eric said: “I think it’s very apparent
[defendant is] not a normal person, that he struggles with
mental issues even if he didn’t make that argument. . . . [¶] For
us to kill a crazy person, I think would be wrong. As a society, I
would hope that we can set a better example . . . .” Eric closed
by addressing defendant directly: “Ted, I’m not on your side at
all. . . . It’s not because I have a particular affinity for you [that
I am opposing the death penalty]. It’s because I think it would
be irresponsible for us to be a punishing and condemning
society. [¶] I would hate to see that done in my parents’ name.”
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Finally, defendant addressed the court. He said:
“Welcome to my birthday party. [¶] Is everyone having fun? Is
everyone having a good time?” He then complained that he did
not have the celebrity status that he wanted: “When this trial
got started, I . . . gave a little speech, and at the end, I asked if
anyone wants any autographs . . . . And not one person, not one
single person approached me for an autograph in this whole
trial.” What followed was a long, meandering statement in
which defendant showed little respect for the court. He read
poetry that described the murders in graphic detail. He joked
about Julie and Paul’s wedding, at which the wedding march
had become a funeral march. He implied that he had lied in his
testimony, saying: “I don’t know if any of the jurors noticed —
some of them are here today — but you know, when I was taking
the oath, I crossed my fingers behind my back with the other
hand. Nobody else could see that, but there were some jurors
standing behind me. I thought it would be funny, I did that. So
they could see it.” Defendant also asked to use the overhead
projector, and he handed the person operating the projector a
picture of a woman’s genitals.
When defendant finished, the trial court sentenced him to
death for each of the murders. It also sentenced him to one year
for each deadly weapon enhancement involving use of a knife,
those sentences to be served consecutively. It sentenced him to
a year for each deadly weapon enhancement involving use of a
wheelbarrow handle, but the court stayed those enhancements.
II. DISCUSSION
On appeal, defendant raises several guilt and penalty
phase issues. We address only the issue of his mental
competence to stand trial and to waive counsel, and because we
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conclude, based on our analysis of that issue, that the judgment
must be reversed in its entirety, we decline to address the other
issues.
A. Facts Related to Defendant’s Mental
Competence
Defendant was initially represented by Michael Kotin of
the Contra Costa County Public Defender’s Office. Due to a
conflict, defendant’s case was reassigned to the Alternate
Defender Office, and Daniel Cook took over as defendant’s
counsel, making his first appearance on March 27, 2006. A few
months later, Cook associated David Briggs as Keenan counsel.
(See Keenan v. Superior Court (1982) 31 Cal.3d 424 [trial court
has discretion to appoint a second defense attorney in a capital
case].) Defendant clashed with Cook, and on November 30,
2006, defendant brought an unsuccessful Marsden motion,
seeking to replace Cook. (See People v. Marsden (1970) 2 Cal.3d
118.) Defendant’s main complaints against Cook were that Cook
had gone to defendant’s house in Citrus Heights without letting
defendant know, that Cook had only met with defendant about
once per month, and that Cook had unnecessarily delayed the
case. A couple of months after that unsuccessful Marsden
motion, Cook resigned from the Alternate Defender Office, and
Roberto Najera became defendant’s lead attorney.
Although the relationship between defendant and Najera
began well, it eventually broke down, and on January 18, 2008,
defendant brought another unsuccessful Marsden motion, this
time seeking to replace Najera. Briggs, by contrast, had gained
defendant’s trust, but after Briggs advised Najera and Susan
Hutcher (Najera’s supervisor) about the importance of meeting
often with defendant, Hutcher dismissed Briggs (it is unclear
why). Defendant then brought yet another unsuccessful
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Marsden motion, again seeking to replace Najera. His
complaints about Najera were similar to those he had previously
made about Cook (i.e., failure to share discovery with
defendant,6 failure to meet with defendant regularly, failure to
involve defendant in important strategy decisions). Eventually,
defendant refused to cooperate with Najera, even taking steps
to sabotage the defense case as a way of punishing Najera.
Defendant then brought a Faretta motion, seeking to
represent himself. (Faretta v. California (1975) 422 U.S. 806.)
In presenting the motion, defendant made clear that he had
brought the motion primarily because he couldn’t work with
Najera, not because he truly wanted to represent himself. He
said: “I just got to get rid of [Najera].” He added: “I’m willing
to represent myself to get [Najera] off my case.” The crux of his
concern with Najera’s representation centered upon his
disagreement with Najera over whether to assert an insanity
defense. The trial court denied defendant’s Faretta motion on
the ground that defendant was using the motion to relitigate the
denial of his Marsden motions. Two months later, however,
Najera resigned from the Alternate Defender Office. David
Headley then took over as defendant’s lead counsel.
At that point, David Briggs, whom Hutcher had dismissed,
brought a Harris motion seeking appointment as defendant’s
counsel. (See Harris v. Superior Court (1977) 19 Cal.3d 786[trial court has discretion in certain circumstances to replace
appointed counsel with counsel of defendant’s choice].) The
motion was supported by defendant’s declaration stating that he
was prepared to cooperate with Briggs. But while Headley was
6
Defendant’s attorneys confirmed that, for tactical reasons,
they did not share discovery with defendant.
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still representing defendant and while Briggs’s Harris motion
remained unresolved, defendant brought a second Faretta
motion. Defendant still did not feel he was getting the respect
and deference he deserved. He also explained that he planned
to punish his attorneys, because they would not allow him to
make strategic decisions in his case. In his moving papers, he
wrote: “I will work against my atturneys [sic] even if it hurts
my case. I will do this to make a point, I said no!” Defendant
also stated that he no longer trusted lawyers and that he did not
think Headley would be any different from the others. “I don’t
even want Briggs on the case,” defendant added. “This is
something I got to do myself.” Defendant’s primary concern was
that he maintain strategic control over the case, and he did not
feel that his attorneys gave him that control.
The court decided that, in light of the high court’s then-
recent decision in Indiana v. Edwards (2008) 554 U.S. 164(Edwards), it could not rule on defendant’s Faretta motion
without an opinion from a mental health expert as to
defendant’s competence to represent himself. The court said
that it had “not seen any evidence at all that [defendant] would
not be competent to stand trial,” but the high court in Edwards
had distinguished between competence to stand trial and
competence to represent oneself at trial, and the trial court
explained that it was not sure defendant possessed the latter
competency. The court therefore obtained a report from Paul
Good, Ph.D., an expert in forensic psychology. In deciding that
a mental health evaluation of defendant was needed, the court
specifically referenced defendant’s “grandiosity” and his “fairly
high level of paranoia.”
Dr. Good’s report stated that he had interviewed
defendant on three occasions, and he found “defendant’s thought
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process . . . clear, coherent and goal directed.” Defendant
“displayed a concrete ability for abstract thought.” Nonetheless,
Dr. Good diagnosed defendant as “most probably suffering from
Paranoid Schizophrenia,” and in any case suffering from “severe
mental illness.” He based that conclusion “on the presence of
paranoid and grandiose delusions, negative symptoms of
flattened affect, and long-standing interpersonal alienation.”
Although Dr. Good had been appointed to address
defendant’s competence to represent himself, his report also
addressed, in detail, defendant’s competence to stand trial. On
the latter point, Dr. Good observed that defendant had “a factual
understanding of the proceedings and intellectually
under[stood] the relationship between attorney and client.”
Moreover, he added: “Based on the 14 dimensions of the CAI-R,
[defendant] would be found competent to stand trial were he to
proceed with counsel.” (Italics added.)7 Dr. Good then described
everything that defendant understood about the legal
proceeding he was then facing. This section of Dr. Good’s report
makes clear that defendant had a relatively sophisticated grasp
of criminal procedure.
Dr. Good next related the history of defendant’s
contentious relationships with counsel. Defendant told Dr.
Good that counsel wanted to pursue an insanity defense, but
defendant saw that as a “small victory,” one not worth pursuing.
He believed his attorneys were “the enemy” and “were locking
[him] away so that no one would discover [he] was really sane.”
Significantly, defendant did not give as much importance as his
7
The CAI-R refers to the “Competency Assessment
Instrument-Revised,” a tool sometimes used by forensic
psychologists to evaluate competence to stand trial.
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lawyers did to the goal of avoiding a death sentence. Defendant
doubted that a death sentence would ever result in his
execution, and if it did, he did not think the execution would
occur for a long time. Pointing out that both his parents had
died from cancer and that he was overweight, defendant thought
he would be much more likely to live out his normal lifespan in
prison than to be executed. He also felt that the evidence
against him was very strong, and therefore there was not much
chance of winning a major victory. Given those circumstances,
he thought the dignity of handling his own defense and telling
the world his story was more valuable to him than the indignity
of submitting to the legal maneuvering of his lawyers, with
chances of success uncertain.
Although defendant conceded to Dr. Good that it was
“possible” that a jury would accept an insanity defense, he
thought it was “very unlikely.” He argued that he was “too
competent, too sane” to persuade a jury that he had committed
the offenses while insane. In this regard, he pointed out that he
had worked in difficult jobs all his life, that a successful insanity
defense was statistically rare, and that the jury in his case
would be death qualified (see Wainwright v. Witt (1985) 469 U.S.
412, 424), which in his view meant that it would be less likely to
accept an insanity defense. Given all that, he thought it was a
better strategy “to try to pick a jury that believes in vigilante
justice” and then explain to the jury why he had killed Julie and
Paul. He also commented that if he took the insanity route, he
would be admitting that what he did was wrong and asserting
that he was too insane to appreciate its wrongfulness.
Defendant felt very strongly that what he did was not wrong.
Dr. Good concluded this section of his report by giving his
opinion that defendant was not competent to stand trial. The
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report made reference to the legal standard that governs
competence to stand trial, noting in particular that a
defendant’s “ ‘rational as well as factual understanding of the
proceedings against him’ ” is not the sole consideration; a
defendant must also have “ ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding.’ ” (Dusky v. United States (1960) 362 U.S. 402(Dusky); see § 1367, subd. (a) [incorporating the Dusky
standard].) Dr. Good explained that due to defendant’s “[s]elf-
importance,” “prideful independence,” and “grandiosity,” he “is
not able to rationally consider ‘telling his story’ with the
assistance of an attorney.” Dr. Good added: “On this ground, I
find him incompetent to stand trial.” Thus, Dr. Good based his
finding of mental incompetence specifically on defendant’s
inability to rationally consult with counsel.
Dr. Good further elaborated the basis for his opinion.
First, Dr. Good directly linked defendant’s tumultuous
relationships with counsel to his “paranoid mental disorder,”
explaining that the disorder caused defendant to have a
“hypercritical and suspicious stance towards his attorneys.”
Second, Dr. Good explained that defendant had “a
misperception of [his lawyers’] motives, a misunderstanding of
the risk involved [in his case], a minimizing of the
precariousness of his predicament, and impaired judgment, all
of which are symptoms of his paranoid mental state.” Dr. Good
further stated: “Clinically, I believe [defendant] is in denial
about the danger he faces, and he substitutes hostility at those
who take seriously his predicament.”
A redacted version of Dr. Good’s report was provided to
defense counsel and the prosecution on the day of defendant’s
Faretta hearing. Although Dr. Good had opined about
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defendant’s mental competence to stand trial, the trial court
limited its discussion with defense counsel to the subject of
defendant’s mental competence to conduct his own defense in
the event that the court granted the Faretta motion and relieved
counsel.
The court then granted defendant’s Faretta motion. In its
ruling the court said: “On review of Dr. Good’s report, and again
particularly since I think the standards applicable here under
Edwards are less than clear, it does appear to me that while
there is a diagnosis of paranoia, and [it] appears to be consistent
with the court’s own observations of [defendant], I frankly do not
think it rises to the level that would preclude [defendant] from
electing to represent himself should he choose to do so.” When
defense counsel was prompted by the court to discuss his views
regarding Dr. Good’s report, counsel told the court: “We trust
your reading of it.”8
On December 17, 2008, about a month after granting
defendant’s Faretta motion, the court appointed David Briggs as
“advisory counsel” for defendant. (People v. Mattson (1954) 51
Cal.2d 777, 797 [trial court has discretion to “appoint an
attorney . . . to render . . . advisory services to an indigent
defendant who wishes to represent himself”].) A month after
that, on January 27, 2009, a new deputy district attorney made
his first appearance in the case, taking over as lead attorney for
the prosecution, and on June 26, 2009, the case was reassigned
for all purposes to a new judge.
8
It is apparent from this discussion that the court and
counsel focused exclusively on defendant’s competence to
represent himself, not his competence to stand trial.
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On September 10, 2009, as the parties prepared for jury
selection, the prosecutor came across a file labeled “1368 issue,”
a reference to section 1368, which governs situations in which a
doubt has arisen about a defendant’s competence to stand trial.
The prosecutor viewed Dr. Good’s report as a potential problem
because it declared defendant to be mentally incompetent to
stand trial and because there was no expert evidence in the
record contradicting that conclusion, meaning that there was no
expert evidence to support the trial court’s implicit finding of
competence. The prosecutor therefore asked the trial court to
address the matter. The prosecutor pointed out that Dr. Good
had only been appointed to address defendant’s competence to
represent himself. Nevertheless, Dr. Good had volunteered his
opinion that defendant was not mentally competent to stand
trial. The prosecutor then expressed his own views regarding
defendant’s mental condition: “I certainly think [defendant] is
competent to stand trial from what I have seen. . . . But with
this record I am concerned about any possible issues on appeal.”
The prosecutor added: “I should note that [defendant has]
participated very competently since I have been in this case. He
has filed a motion to suppress, which in fact portions of it have
been granted. He has raised objections to questions in the
[juror] questionnaire. So, I think time and his participation in
these proceedings have further illustrated his competency to
stand trial. . . . But I want to make sure the record is clear and
that this issue is addressed.”
Defendant, who at this point was proceeding pro se, then
explained to the court that he was forced into representing
himself only because his attorneys would not share discovery
with him and would not involve him in strategic decisions.
Defendant said: “For . . . a little more than two years, I have
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tried Faretta[ motion]s, Marsden[ motion]s, and I would talk to
Susan Hutcher and, you know, try and get respect, try and get
my things, try and — And I was just constantly, I was at war
with the Alternate Defender[] Office. They are the ones that
really screwed all of this up, I was at war with them. And
finally, after all these Marsden[ motion]s, and all of these . . .
Faretta[ motion]s, [the court] made the decision to grant me my
own case pro per. And since that time there has been peace on
this case. I am getting what I wanted, I’m seeing everything
[(i.e., discovery)], I’m part of the case. I’m getting along with Mr.
Briggs . . . . [¶] . . . [¶] . . . I’m not really looking forward to being
my own attorney in this big powerful trial. I will do it, but I just
don’t want to go back to the way things were before . . . [the
court] granted me the right to represent myself.” Defendant
then stated for the record that he was not seeking a finding of
mental incompetence.
After defendant spoke, the court commented on its own
observations of defendant’s competence: “The request that is
being asked today is that I . . . satisfy myself . . . on the decision
to let you represent yourself and . . . satisfy myself that you are
competent to go to trial. In other words, [that] you understand
what is going on, basically. That is a very short version of the
standard. [¶] I can tell you that from our interactions over the
last several months I . . . haven’t seen any reason to question
either of those premises . . . .” The court then took a recess to
study the record more fully.
After that recess, the court confirmed that defendant was
competent to stand trial. The court said: “Based on all that I
have reviewed and . . . my participation in the case and my
interactions with [defendant], I do not have any doubt about
[defendant’s] competency to stand trial. [¶] My view is that
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[defendant] clearly understands the nature and purpose of these
proceedings, the roles of the respective participants and the fact
that this is a matter of utmost seriousness in that it is a
potential death penalty case, but he fully understands that [and
is] capable of understanding all of the issues that I have
discussed.” The court then took another recess, this time to
study the unredacted version of Dr. Good’s report. After that
second recess, the court said: “Having read and considered[] the
full report by Dr. Good . . . I continue in my beliefs that I have
articulated earlier and confirm my findings as to
competency . . . .” The court never addressed the specific ground
on which Dr. Good had found defendant incompetent, to wit,
that defendant lacked a “ ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding.’ ” (Dusky, supra, 362 U.S. at p. 402.)
The trial court revisited the question of defendant’s
mental competence three months later, after the jury had
reached its death verdicts. The court made the following
comment: “I did want to state for the record that in the time we
spent on this case over the last several months, and the many
days and hours that we have been in court, it’s my view, and I
don’t think I ever had occasion to state it clearly on the
record, . . . that [defendant] has at all times demonstrated that
he is competent to stand trial and has been competent to stand
trial and to waive his right to counsel.” Addressing defendant
directly, the court stated: “In other words, . . . I believe that [the
court] made the correct decision allowing you to represent
yourself.” Defendant, who had recently been sentenced to death,
responded: “Oh, so do I.”
Mr. Briggs, who had acted as defendant’s advisory counsel
throughout the trial, then asked to address the court. He said:
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“I feel that I need to respond to the court’s comments
today. [¶] . . . [¶] And I do so with all respect, but I disagree
with the court’s statement[] . . . that [defendant] was competent
to represent himself throughout this trial. [¶] I make this
statement based on evidence to which the court has not been
privy, that I am not at liberty to disclose, but if I remain silent
in the face of the assertion, it could be construed as an
agreement with it, and I do not agree with it.” (Italics added.)
Defendant then added his own comment: “As you were
saying earlier, uhmm, [the court’s] decision for me to represent
myself was a very good decision, because, you know, Julie and
Paul were attorneys that I killed. And if [the court] did not let
me fire that legal team that was representing me at the time,
that legal team would have been the next two attorneys that I
killed.”
B. Relevant Legal Principles: Competence To
Stand Trial and Competence To Waive Counsel
At the outset, it is necessary to explain why we are
addressing in the same discussion both the question of
defendant’s competence to stand trial and the question of his
competence to waive counsel. In Godinez v. Moran (1993) 509
U.S. 389 (Godinez), the high court concluded that the standard
that governs both competency determinations is the same. In
reaching that conclusion, the high court listed several decisions
of constitutional magnitude that a defendant who stands trial
must make. The court said: “A defendant who stands trial . . .
will ordinarily have to decide whether to waive his ‘privilege
against compulsory self-incrimination,’ [citation], by taking the
witness stand; if the option is available, he may have to decide
whether to waive his ‘right to trial by jury,’ [citation]; and, in
consultation with counsel, he may have to decide whether to
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waive his ‘right to confront [his] accusers,’ [citation], by
declining to cross-examine witnesses for the prosecution.” (Id.
at p. 398.) The high court then said: “[W]e [do not] think that a
defendant who waives his right to the assistance of counsel must
be more competent than a defendant who does not, since there
is no reason to believe that the decision to waive counsel
requires an appreciably higher level of mental functioning than
the decision to waive other constitutional rights.” (Id. at p. 399.)
Nor did the high court conclude that the required “level of
mental functioning” was appreciably lower for a decision to
waive counsel. (Ibid.) Specifically, the high court rejected “the
notion that competence . . . to waive the right to counsel must be
measured by a standard that is higher than (or even different
from) the Dusky[, supra, 362 U.S. 402,] standard” that governs
competence to stand trial. (See Godinez, at p. 398, italics added.)
Significantly, Godinez involved a defendant who pled
guilty, and the high court addressed only his decision to waive
counsel (and then to enter the guilty plea); it did not decide what
level of mental functioning was necessary for a defendant to
conduct his or her own defense. The court said: “Respondent
suggests that a higher competency standard is necessary
because a defendant who represents himself ‘ “must have
greater powers of comprehension, judgment, and reason than
would be necessary to stand trial with the aid of an attorney.” ’
[Citations.] But this argument has a flawed premise; the
competence that is required of a defendant seeking to waive his
right to counsel is the competence to waive the right, not the
competence to represent himself. . . . [A] criminal defendant’s
ability to represent himself has no bearing upon his competence
to choose self-representation.” (Godinez, supra, 509 U.S. at pp.
399–400.) In other words, the court severed the question of
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competence to waive counsel from the question of competence to
self-represent, and it concluded that the waiver of counsel, when
viewed in isolation, is not different from numerous other
decisions a defendant must make when standing trial, and it
was subject to the same analysis and governed by the same
standard.9
We recently addressed in some detail the legal principles
that govern the question of a criminal defendant’s mental
competence to stand trial, and by implication from Godinez,
supra, 509 U.S. at page 398, the same principles govern a
defendant’s competence to waive counsel. In People v. Rodas
(2018) 6 Cal.5th 219 (Rodas), we said: “The constitutional
guarantee of due process forbids a court from trying or
convicting a criminal defendant who is mentally incompetent to
stand trial. [Citations.] 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 . . . .) [¶] 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
9
Of course, a defendant who is competent to waive counsel
does not necessarily do so knowingly, voluntarily, and
intelligently. (See, e.g., People v. Lynch (2010) 50 Cal.4th 693,
721.) That is a separate question from the competency question,
as is the question whether the defendant has the mental
competence necessary to self-represent (see People v. Johnson
(2012) 53 Cal.4th 519, 530–531).
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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
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 . . . .)”
(Rodas, at pp. 230–231.)
In Rodas, we stated that the accused is entitled to a
hearing “ ‘if he comes forward with substantial evidence’ ” of
mental incompetence (Rodas, supra, 6 Cal.5th at p. 231, italics
added, quoting People v. Pennington, supra, 66 Cal.2d at p. 518
(Pennington)), but under section 1368, subdivision (a), it doesn’t
matter how the evidence comes before the court. If the court is
presented with substantial evidence of mental incompetence —
whether or not defendant is its immediate source — the court
must declare a doubt about the question and initiate an inquiry,
including obtaining a formal opinion from defense counsel and
appointing defense counsel if the defendant is proceeding pro se.
(See § 1368, subd. (a).) Moreover, substantial evidence of
mental incompetence necessarily raises such a doubt
irrespective of whether other evidence, including the court’s own
observations, suggests the defendant is competent. On this
latter point, we said in Rodas: “ ‘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.)” (Rodas, supra, 6
Cal.5th at p. 231, italics added.)
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In Rodas, we found support for the latter point in Pate v.
Robinson. We said: “In Pate v. Robinson, supra, 383 U.S.
375 . . . , 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.” (Rodas, supra, 6 Cal.5th at pp.
233–234.) In other words, once a trial court has before it
substantial evidence that a defendant is not mentally
competent, its own observations of the defendant’s competence
cannot take the place of the formal competence inquiry under
sections 1368 and 1369.
In People v. Lewis and Oliver (2006) 39 Cal.4th 970 (Lewis
and Oliver), we elaborated on what constituted “substantial
evidence” in this context: “Evidence is not substantial enough
to mandate a mental competence hearing unless it raises a
reasonable doubt on the issue. [Citation.] We have said that
this standard is satisfied if at least one expert who is competent
to render such an opinion, and who has had a sufficient
opportunity to conduct an examination, testifies under oath
with particularity that, because of mental illness, the accused is
incapable of understanding the proceedings or assisting in his
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defense.” (Id. at p. 1047.) The word “substantial” does not mean
that for a doubt to arise, there must be a large quantity of
evidence of a defendant’s incompetence; rather, it means that
there must be some evidence of sufficient substance that it
cannot be dismissed as being inherently unpersuasive.
C. Analysis
1. Competence To Stand Trial
In this case, the trial court had before it a defendant who
was manifestly aware of what was going on in the courtroom
and who had demonstrated his ability to understand the
proceeding with a high degree of sophistication. Defendant told
Dr. Good that he believed the evidence of guilt was
overwhelming and that it was unlikely he would be acquitted.
That assessment was more than plausible, especially
considering Paul’s dying declaration implicating defendant and
defendant’s very detailed confession to police just one day after
the murders, a confession that admitted premeditation and
deliberation. The chances of an acquittal were negligible.
Defendant also believed that an insanity defense would prove
unsuccessful, and he was able to articulate his reasons for that
conclusion. And defendant gave Dr. Good a rational reason for
why he did not fear a sentence of death, asserting his view that
the death penalty was not likely to be carried out. Thus, viewing
the record from the trial court’s perspective, the matter of
defendant’s incompetence to stand trial was less than clear. On
the one hand, defendant presented as a person who very much
understood what was happening around him and who had a
relatively sophisticated ability to navigate the criminal justice
system. On the other hand, there was the uncontradicted
opinion of an experienced mental health professional who had
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examined defendant on three occasions and concluded that
defendant was not competent to stand trial, because his mental
illness prevented him from consulting with counsel with a
reasonable degree of rational understanding.
But the difficulty presented here is also directly addressed
by our precedents. Once “substantial evidence” of mental
incompetence 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, supra, 66
Cal.2d at p. 518; see Rodas, supra, 6 Cal.5th at p. 231 [quoting
this statement from Pennington].) Moreover, we have
repeatedly reaffirmed that a finding of incompetence to stand
trial can be based solely on a defendant’s “incapab[ility] of . . .
cooperating with counsel.” (Pennington, at p. 519; see People v.
Ghobrial (2018) 5 Cal.5th 250, 270 [quoting this statement from
Pennington]; People v. Sattiewhite (2014) 59 Cal.4th 446, 465
(Sattiewhite) [same]; People v. Lewis (2008) 43 Cal.4th 415, 525
[same].) On the record before us, we find as a matter of law that
Dr. Good’s report constituted substantial evidence of such
incapability. (See People v. Mai (2013) 57 Cal.4th 986, 1033
[requiring an appellate court to defer to a trial court’s
competency determination unless the evidence of incompetence
is substantial “as a matter of law”].) Indeed, Dr. Good’s report
related defendant’s paranoid belief that his attorneys “were
locking [him] away so that no one would discover [he] was really
sane,” and the report included the following passage in bold
typeface: “[Defendant’s] failure to appreciate the logic and
wisdom of his attorneys is a function of his paranoid mental
disorder. As a result of his hypercritical and suspicious stance
towards his attorneys, [defendant] has not shown the ‘present
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ability to consult with his lawyer[s].’ Each of his past attorneys
has failed [defendant’s] tests of competency and loyalty, and he
is likely to find fault with every new attorney that may be
appointed. Self-importance and prideful independence lead
[defendant] to believe that only he can represent himself.
Because of his grandiosity, [defendant] is not able to rationally
consider ‘telling his story’ with the assistance of an attorney. On
this ground, I find him incompetent to stand trial.” That
conclusion, combined with the psychological testing and
background findings that supported it, constituted substantial
evidence as a matter of law. Therefore, once the trial court
received and read Dr. Good’s report, the procedures set forth in
sections 1368 and 1369 came into play. (Pennington, supra, 66
Cal.2d at p. 518.)
Section 1368, subdivision (a) provides that when a doubt
as to a defendant’s mental competence arises, the trial court
shall “inquire of the attorney for the defendant whether, in the
opinion of the attorney, the defendant is mentally competent.”
In some cases, defense counsel might not agree that the
defendant is mentally incompetent; here, however, the court did
not make the inquiry. By not initiating a competency
proceeding by making that inquiry, the trial court erred. (See
§§ 1368, subd. (a), 1369.)10
Then, nearly a year later, when a new attorney was
representing the prosecution and a new judge had been assigned
to the case, the issue of defendant’s mental competence was
10
The trial court’s focus was exclusively on defendant’s
mental competence to represent himself (see Edwards, supra,554 U.S. 164), and the court did ask defense counsel about that
question.
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raised anew. Again, Dr. Good’s report came to the attention of
the court, a report that, as a matter of law, constituted
substantial evidence of defendant’s mental incompetence.
Therefore, the procedures set forth in sections 1368 and 1369
came into play a second time. But at this point defendant was
not represented, so the trial court’s error was slightly different.
Section 1368, subdivision (a) provides that “[i]f the defendant is
not represented by counsel, the court shall appoint counsel.” By
not appointing counsel and initiating competency proceedings,
the trial court erred again.11
The Attorney General offers several arguments in defense
of the trial court actions here — none of which is ultimately
persuasive. First, he argues that Dr. Good’s report does not,
standing alone, amount to substantial evidence of mental
incompetence and therefore that the trial court did not err in
declining to hold a section 1369 competency trial. The Attorney
General relies on Lewis and Oliver, supra, 39 Cal.4th 970, in
which there was testimony from a psychiatrist — Dr. Alvin
Davis — that the defendant was mentally incompetent, yet we
upheld the trial court’s conclusion that the evidence of the
defendant’s mental incompetence was insubstantial. Our
11
It is true that Dr. Good’s finding of mental incompetence
focused on defendant’s inability “ ‘to consult with his lawyer
with a reasonable degree of rational understanding’ ” (Dusky,
supra, 362 U.S. at p. 402), but it does not follow from defendant’s
dismissal of his attorneys that his competency was no longer in
doubt. That is so because Dr. Good made clear that defendant’s
mental illness was what led to his decision to dismiss his
attorneys. If a defendant is mentally incompetent because of an
inability to consult with counsel, the dismissal of counsel is not
an appropriate remedy.
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decision in Lewis and Oliver is, however, easily distinguished
from this case.
In Lewis and Oliver, the trial court determined that Dr.
Davis (the psychologist who submitted a report regarding the
defendant’s competence to stand trial) was not a credible
witness. It expressed its reluctance to credit the expert’s views
regarding mental competence, noting that Dr. Davis “ ‘is rather
well known in the system.’ ” (Lewis and Oliver, supra, 39
Cal.4th at p. 1046; see People v. Farnam (2002) 28 Cal.4th 107,
197 [describing an effective cross-examination of Dr. Davis,
focusing on his qualifications to assess mental competence].)
Additionally, the trial court in Lewis and Oliver expressly found
that Dr. Davis’s “ ‘conclusions are not supported by any factual
basis and he disregards evidence that is contrary to what
appears to be a prefixed opinion.’ ” (Lewis and Oliver, at p.
1047.) In upholding the trial court, we noted that Dr. Davis’s
opinion was contradicted by other experts whose views Dr.
Davis had not considered. (Id. at p. 1048.) In addition, we said:
“Dr. Davis acknowledged that he did not consider Lewis’s
psychiatric history in the Army or in jail. . . . Moreover, Dr.
Davis conceded that his conclusion regarding Lewis’s
competence was tentative and not definitive.” (Ibid.) In sum,
Dr. Davis’s opinion, viewed by itself, was inherently unreliable.
Accordingly, we held that the trial court in Lewis and Oliver had
a reasonable basis to conclude that Dr. Davis’s opinion did not
constitute substantial evidence of mental incompetence.
Lewis and Oliver certainly stands for the abstract
principle that not every psychiatrist’s opinion is substantial
evidence. But here the trial court was presented with the
uncontradicted opinion of Dr. Good, an expert in forensic
psychology chosen by the court, and the record suggests nothing
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that would undermine his credibility. Dr. Good’s opinion was
supported by three interviews with defendant, a thorough
psychiatric history, appropriate psychological testing, and
detailed reasoning in which he made clear the factual basis for
his conclusions. Thus, Lewis and Oliver fails to support the
Attorney General’s argument.
The Attorney General also argues that Dr. Good did not
present his opinion in the form of sworn testimony. (See Lewis
and Oliver, supra, 39 Cal.4th at p. 1047 [a doubt arises as to
mental competence “if at least one expert who is competent to
render such an opinion, and who has had a sufficient
opportunity to conduct an examination, testifies under oath with
particularity that, because of mental illness, the accused is
incapable of understanding the proceedings or assisting in his
defense” (italics added)].) While it is true that Dr. Good did not
testify under oath, he gave his opinion in a formal, signed, 15-
page, single-spaced report addressed directly to the judge trying
defendant’s case and with the understanding that the judge
would rely on it as evidence. Those circumstances suffice to
make it substantial evidence of incompetence.
Of particular significance here is the thoroughness of Dr.
Good’s analysis. Dr. Good described his evaluation procedures
in detail, summarized defendant’s personal background,
evaluated defendant’s mental status as of the time of the
examination, related in detail the factual basis for his diagnosis,
and set forth his diagnosis in cautious terms. Having done so,
Dr. Good then turned to the specific question of defendant’s
mental competence to stand trial. Dr. Good readily conceded
that in many respects, defendant was competent to stand trial.
For example, Dr. Good related in detail defendant’s knowledge
of criminal procedure. But then Dr. Good addressed the specific
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ground on which he concluded that defendant was not
competent to stand trial, that is, his “ ‘present ability to consult
with his lawyer with a reasonable degree of rational
understanding.’ ” (Dusky, supra, 362 U.S. at p. 402.) Dr. Good
gave a full history of defendant’s dysfunctional relationships
with counsel and then directly linked defendant’s inability, in
practice, to work with counsel to his “paranoid mental disorder,”
which caused defendant to have a “hypercritical and suspicious
stance towards his attorneys.” In this regard, Dr. Good
particularly noted defendant’s “self-importance and prideful
independence” and also “his grandiosity,” stating, “on this
ground, I find him incompetent to stand trial.” Dr. Good further
noted that defendant’s “paranoid mental state” caused him to
“minimiz[e] the precariousness of his predicament.”
In summary, Dr. Good’s opinion was presented to the court
in a form that made it reliable, and unlike the opinion of Dr.
Davis at issue in Lewis and Oliver, supra, 39 Cal.4th 970, Dr.
Good’s opinion was well supported and facially persuasive.
Therefore, Dr. Good’s opinion constitutes substantial evidence
as a matter of law of defendant’s mental incompetence. In order
to reject Dr. Good’s opinion, the trial court relied on its own
experience interacting with defendant — an approach we
expressly rejected in Rodas, supra, 6 Cal.5th 219, where we said
that “in the face of substantial evidence raising a doubt about
defendant’s competence, defendant’s demeanor and responses
supplied [the trial court with] no basis for dispensing with
further inquiry” in the form of proceedings under sections 1368
and 1369. (Id. at p. 234.)
Moreover, we have said that the trial court’s “duty to
assess competence is a continuing one.” (Rodas, supra, 6 Cal.5th
at p. 236, fn. 5.) Here, therefore, we also appropriately consider
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defendant’s conduct during trial in deciding whether a doubt
was raised about defendant’s mental competence. As noted, Dr.
Good found defendant incompetent to stand trial because
defendant lacked the ability to consult rationally with counsel.
In that regard, Dr. Good mentioned defendant’s “grandiosity”
and his “hostility at those who [took] seriously his predicament,”
both of which were a result of his mental illness. Defendant’s
bizarre behavior at trial served only to confirm and reinforce Dr.
Good’s conclusions. Indeed, even behavior that would be
insignificant if viewed in isolation tended cumulatively to
present an overall picture of a man whose behavior reflected the
precise traits Dr. Good described. There is no reason to reiterate
each detail of defendant’s bizarre behavior at trial, but it is
worth noting a few examples of defendant’s conduct that
validated Dr. Good’s opinion. For example, defendant
repeatedly insisted that he had done a good thing by killing Julie
and Paul, and that the children appreciated it. He admitted
that he did not mind killing people, saying that only his sense of
morality kept him from being a serial killer and that he would
kill people when, in his moral judgment, it was necessary to do
so. In addition, defendant repeatedly insulted the jurors, calling
them “lumpers,” “comically challenged,” and “midgets.” Finally,
defendant sabotaged his own defense because of anger over
perceived slights, and he repeatedly expressed his violent
intentions regarding lawyers. These incidents and others
evidence his “grandiosity” and “hostility at those who [took]
seriously his predicament,” thus supporting Dr. Good’s finding
that defendant lacked the ability to consult rationally with
counsel.
In reaching this conclusion, we are mindful of the Attorney
General’s references to defendant’s relative sophistication.
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Critically, in advancing these arguments, the Attorney General,
like the trial court, fails to address the crux of Dr. Good’s opinion
as to defendant’s mental incompetence. Dr. Good acknowledged
that defendant had a relatively sophisticated understanding of
criminal procedure, but Dr. Good concluded that defendant’s
mental illness led to a grandiosity and emotional indifference
that prevented him, in practice, from consulting rationally with
counsel. Thus, the evidence the Attorney General relies on
misses the point.12
12
The Attorney General also relies on Sattiewhite, supra, 59
Cal.4th 446, and People v. Weaver (2001) 26 Cal.4th 876(Weaver), in support of his argument that the evidence of
defendant’s mental incompetence was not sufficiently
substantial. In Sattiewhite, the sole evidence of the defendant’s
mental incompetence was a psychologist’s penalty phase
testimony that the defendant had brain damage and mental
disabilities. There was no evidence that these diagnoses
affected the defendant’s ability to understand the nature of the
proceedings or to consult rationally with counsel. The
circumstance presented in Sattiewhite was thus completely
unlike the circumstance presented here. (See People v. Mai,
supra, 57 Cal.4th at p. 1034 [expert opined as to defendant’s
mental limitations but did not directly address competence to
stand trial]; People v. Lewis, supra, 43 Cal.4th at pp. 524–526
[same]; People v. Young (2005) 34 Cal.4th 1149, 1217–1218
[same]; People v. Danielson (1992) 3 Cal.4th 691, 723–727
[same].)
In Weaver, supra, 26 Cal.4th 876, the psychiatrist who
testified that the defendant was mentally incompetent based his
conclusion on the defendant’s in-court demeanor, not on a formal
examination of the defendant. The trial court in Weaver said:
“ ‘I just quite frankly don’t believe that a doctor can from the
witness stand, when he is not examining a patient or not even
observing a person except secondarily to his testimony, can
render an opinion like that . . . .’ ” (Id. at p. 953.) This court
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We conclude, therefore, as a matter of law that Dr. Good’s
report “ ‘raise[d] a reasonable or bona fide doubt’ as to
competence” (Rodas, supra, 6 Cal.5th at p. 231, quoting People
v. Rogers (2006) 39 Cal.4th 826, 847), and the trial court was
required to proceed in accordance with sections 1368 and 1369.
It did not do so and thus erred.
2. Competence To Waive Counsel
As noted, defendant not only asserts generally that he was
not competent to stand trial, he also asserts more specifically
that he was not competent to waive his Sixth Amendment right
to counsel.
The analysis here is a close cousin to our analysis of the
competence-to-stand-trial issue because, as explained, each
issue is governed by the same standard. (See Godinez, supra,509 U.S. at p. 398.) To be mentally competent a defendant must
have (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.’ ” (Dusky, supra, 362 U.S. at p. 402; see § 1367,
subd. (a).) Applying that standard, we conclude that Dr. Good’s
report was, as a matter of law, substantial evidence of
defendant’s incompetence to waive his right to counsel. (See
Pennington, supra, 66 Cal.2d at p. 518.) Specifically, Dr. Good
concluded that defendant’s mental illness led to a grandiosity
agreed. (Ibid.) Obviously, Dr. Good’s report, based on three
formal examinations of defendant and appropriate psychological
testing, is not comparable to the expert opinion that was before
the trial court in Weaver.
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and emotional indifference that prevented him from consulting
rationally with counsel.13
It might be argued that a defendant who intends to waive
counsel does not need to be able to consult with counsel, and
therefore the first prong of the Dusky standard does not apply
when competence to waive counsel is at issue. The argument
fails as a matter of logic because a defendant who is represented
and is considering whether to waive counsel needs to consult
with counsel in order to understand and weigh the pros and cons
of that decision. Moreover, defendant here made clear that he
sought to proceed pro se primarily because of his dysfunctional
relationship with counsel. Therefore, his decision to proceed pro
se arose from and was integrally connected to his mental illness.
Indeed, Dr. Good’s opinion rested at least in part on an
assessment that defendant’s paranoia and delusional moral
stance made him unable to rationally weigh whether to proceed
with counsel. Because defendant’s mental illness motivated his
desire to waive counsel, we are at a loss to understand how his
13
The Attorney General argues that this case is like People
v. Taylor (2009) 47 Cal.4th 850, in which we concluded that the
trial court did not err in finding the defendant competent to
waive his right to counsel. (See id. at pp. 878–879.) Taylor,
however, is easily distinguished given the substantial evidence
of defendant’s mental illness before us in the present case. In
Taylor, we said: “There was no evidence before the trial court of
psychosis or any severe thought disorder, and neither expert
opined that defendant would be unable to assist counsel because
of a mental illness. Defendant clearly had a history of conflict
with his attorneys, but the court could reasonably conclude,
without contradiction from either psychologist’s report, that
such conflicts were attributable to difficult aspects of
defendant’s personality rather than to a diagnosed mental
illness.” (Id. at pp. 863–864; see id. at pp. 860–861.)
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decision to dismiss counsel provides a justification for
disregarding his mental illness. (See p. 39, fn. 11, ante.)
Our conclusion that the trial court erred finds support in
People v. Burnett (1987) 188 Cal.App.3d 1314 (Burnett). In
Burnett, the defendant was institutionalized after being found
not guilty of criminal fraud charges by reason of insanity. At a
subsequent hearing to determine whether he was “ ‘restored to
mental competence,’ ” the defendant waived his right to counsel.
(Burnett, at p. 1317.) The trial court granted the waiver without
obtaining “expert evidence regarding [the defendant’s] mental
capacity” (ibid.), and it did so despite several bizarre and
delusional statements the defendant made during his court
appearances and despite his history of mental illness (see id. at
p. 1321). The Court of Appeal reversed. It held that “where a
trial court’s doubt about a person’s mental competence to waive
counsel is based upon a history of mental illness or irrational
behavior directly observed in the courtroom, or any other
discernible facts ‘which would give rise to any doubt respecting
defendant’s mental capacity’ [citations], the court cannot
properly determine that such person is competent to exercise the
right asserted without first obtaining psychiatric evidence.” (Id.
at p. 1322.) Although Burnett did not involve the question of
competence to waive counsel during the course of a guilt trial, it
generally supports our conclusion that the trial court here erred
by finding defendant competent and granting defendant’s
waiver of counsel without initiating the competence proceedings
set forth in sections 1368 and 1369.
It is true that in People v. Clark (1992) 3 Cal.4th 41(Clark), this court came to a different conclusion from Burnett,
but we find Clark distinguishable from this case. In Clark, a
capital case, the defendant sought to waive counsel, and defense
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counsel requested a hearing concerning the defendant’s capacity
to “ ‘act in pro per’ ” and “offered to present the testimony of two
psychological experts to show ‘that [the defendant] shouldn’t be
permitted to go pro per because of his mental and character
disabilities.’ ” (Clark, supra, 3 Cal.4th at p. 106.) The trial court
declined to hold a hearing and found — on the basis of a colloquy
in which the court advised the defendant about his
constitutional rights and the risks of self-representation — that
the defendant was mentally competent to waive his right to
counsel. (Ibid.) We affirmed. Quoting Burnett, supra, 188
Cal.App.3d at page 1322, we acknowledged that “ ‘[w]here . . .
[a] person whose competence is in question is confined in a
mental facility pursuant to judicial decree and the state
maintains that such confinement should continue or be
extended because that person continues to suffer a mental
disability [citations], mental competence to waive counsel is in
doubt as a matter of law and such a person cannot be found
competent to represent himself or herself without judicial
consideration of psychiatric evidence bearing on the question.’ ”
(Clark, at p. 107.) We then distinguished Burnett, noting that
the defendant in Clark “gave no indication of mental
impairment which prevented a valid waiver of counsel.” (Ibid.)
We did not, however, disturb Burnett’s ultimate holding that
when a doubt arises about a defendant’s mental competence to
waive the right to counsel, “the court cannot properly determine
that such person is competent to exercise the right asserted
without first obtaining psychiatric evidence.” (Burnett, at p.
1322.)
The defendant in Clark argued on appeal that his
attorney’s request for a hearing coupled with his own disruptive
behavior in the courtroom — which included standing mute in
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protest of the court’s rulings, accusing the judge of lying, telling
the judge to “stop that crap,” and refusing to cooperate with
counsel — should have raised a doubt in the court’s mind about
his competency. (See Clark, supra, 3 Cal.4th at p. 107.) We
disagreed, concluding that although these “were relevant factors
for the court to consider, they did not eliminate the court’s
discretion in light of its own observations and the record as a
whole.” (Id. at pp. 107–108.) In other words, they did not
constitute substantial evidence of mental incompetence “as a
matter of law.” (People v. Mai, supra, 57 Cal.4th at p. 1033.) We
noted that the defendant’s disruptive behaviors during trial “did
not necessarily show incompetence to waive counsel” because
“[o]ne can knowingly invoke the right to represent oneself and
then abuse that right.” (Clark, at p. 108.) In addition, we
pointed out that when defense counsel requested a hearing, his
request was focused on the issue of self-representation, not
competence to enter the waiver, and counsel “never made a
specific offer of proof regarding what the witnesses would or
could testify about [the] defendant’s competence to waive
counsel.” (Ibid.) We therefore concluded that “the trial court’s
refusal to hold a further hearing was within its discretion.” (Id.
at p. 107)
Clark, supra, 3 Cal.4th 41, is distinguishable from this
case because here the record included — in the form of Dr.
Good’s report — credible and detailed psychiatric evidence
indicating that, due to severe mental illness, defendant was not
mentally competent to waive his right to counsel. That evidence
satisfied Pennington’s substantial evidence standard as a
matter of law (Pennington, supra, 66 Cal.2d at p. 518), thus
triggering the competency procedures set forth in sections 1368
and 1369.
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3. The Trial Court’s Hearings Did Not Satisfy Section
1369
Finally, we reject the Attorney General’s argument that
any error here was harmless because the two brief hearings at
which the trial court considered Dr. Good’s report constituted,
by themselves, a competency trial that satisfied section 1369.
Section 1369 requires the appointment of a mental health expert
(or, in some cases, two such experts) (§ 1369, subd. (a)), followed
by a jury trial, including the formal admission of evidence,
argument, and a verdict (id., subds. (b)–(f)). Those procedural
requirements were not satisfied in the two brief hearings that
occurred here.
Accordingly, we conclude that the trial court erred by
failing to initiate the formal competency procedures set forth in
sections 1368 and 1369. We next consider whether, under the
circumstances presented here, a retrospective evaluation of
defendant’s competence to stand trial is feasible.
D. Retrospective Competency Trial
The Attorney General argues that if we conclude, as we
have, that the trial court erred by not initiating the competency
procedures set forth in sections 1368 and 1369, the remedy is a
conditional reversal so the trial court can consider the feasibility
of holding a retrospective competency trial. As we shall explain,
a retrospective competency trial is not a harmless error inquiry.
Rather, it is an opportunity to cure the trial court’s error by
giving the defendant a competency trial that is comparable to
the one he or she should have been given but was denied. In the
present circumstances — involving the passage of more than a
dozen years — that is not possible to do.
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In cases involving Pate v. Robinson error — that is, a
failure to hold a competency hearing despite substantial
evidence of a defendant’s incompetency (see Pate v. Robinson,
supra, 383 U.S. at pp. 385–386) — the United States Supreme
Court has reversed the judgment without ordering an inquiry
into the feasibility of making a retrospective competency
determination. In Dusky, for example, the high court spoke of
the “difficulties of retrospectively determining the petitioner’s
competency as of more than a year ago,” and it reversed the
judgment of conviction without directing any further
proceedings. (Dusky, supra, 362 U.S. at p. 403.) And in Pate v.
Robinson itself, the high court noted that at a retrospective
competency hearing, “[t]he jury would not be able to observe the
subject of their inquiry, and expert witnesses would have to
testify solely from information contained in the printed record.”
(Pate v. Robinson, at p. 387.) The court added that the passage
of time (six years in that case) “aggravates these difficulties”
(ibid.), and it declined to permit a retrospective competency
hearing. Likewise, in Drope v. Missouri (1975) 420 U.S. 162 —
another case in which six years had passed since the relevant
events — the high court noted “the inherent difficulties of such
a nunc pro tunc [competency] determination under the most
favorable circumstances,” and it concluded that such a
determination would not be possible in the case it was then
deciding. (Id. at p. 183.)
This court, too, has never expressly held that a
retrospective competency determination is adequate to cure
Pate v. Robinson error. (See Rodas, supra, 6 Cal.5th at p. 239
[assuming without deciding that the remedy of a retrospective
determination is available]; People v. Lightsey (2012) 54 Cal.4th
668, 704 (Lightsey) [declining to answer the “complex and . . .
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debat[able]” question]; People v. Ary (2011) 51 Cal.4th 510, 516–
517 (Ary) [assuming without deciding that the remedy is
available]; People v. Young (2005) 34 Cal.4th 1149, 1217, fn. 16
[noting that “in some circumstances, a remand may be
appropriate and reversal . . . might be unnecessary”]; People v.
Marks (1988) 45 Cal.3d 1335, 1340 [reversing the judgment,
observing, “[t]hat the hearing was not held is dispositive”];
People v. Hale (1988) 44 Cal.3d 531, 541 [absence of competency
trial “rendered the subsequent trial proceedings void because
the court had been divested of jurisdiction to proceed”];
Pennington, supra, 66 Cal.2d at p. 521 [rejecting the argument
that “the error be cured by a retrospective determination of
defendant’s mental competence during his trial”]; see generally
Rodas, at pp. 238–240.) To understand these holdings, it is
important to understand the nature of the retrospective
competency trial that our cases permit, an issue we now turn to.
Significantly, we have held that the defendant has the
burden of proof in a retrospective competency trial. In Rodas,
we said so explicitly: “The burden of proof in a retrospective
hearing is on the defendant . . . .” (Rodas, supra, 6 Cal.5th at p.
240.) Similarly, in Lightsey, we said that “a retrospective
competency hearing [must] provide defendant a fair opportunity
to prove incompetence.” (Lightsey, supra, 54 Cal.4th at p. 710,
italics omitted.) And in Ary, we said that “requiring a criminal
defendant to prove at a retrospective mental competency
hearing that he was incompetent when tried earlier does not
‘ “offend[] some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.” ’ ”
(Ary, supra, 51 Cal.4th at pp. 520–521.) Those statements might
sound odd to someone familiar with the harmless error
standards that apply on appeal. When there is a retrospective
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Opinion of the Court by Jenkins, J.
competency trial, there has necessarily been a finding of trial
court error, and if the case involves Pate v. Robinson error, the
error is one that violates the federal Constitution. It is well
settled that in a criminal case involving federal constitutional
error, an appellate court can affirm the conviction only if “the
beneficiary of [the] constitutional error” — the People — can
“prove beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.” (Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman).) Why then in a
retrospective competency trial does the defendant have the
burden of proof to show he or she was incompetent at the time
of the trial, and therefore that the trial court’s Pate v. Robinson
error was prejudicial?
The answer lies in the fact that a retrospective competency
trial is not a harmless error inquiry, nor is it an unconstrained
post hoc inquiry into a defendant’s mental condition at some
earlier point in time. Rather, a retrospective competency trial
provides a defendant with an opportunity to have a competency
trial comparable to the one the defendant should have been
given but was denied — one in which the defendant would have
had the burden of proof (see Ary, supra, 51 Cal.4th at p.
518; People v. Medina (1990) 51 Cal.3d 870, 881; see also § 1369,
subd. (f) [“It shall be presumed that the defendant is mentally
competent . . . .”]). Hence, in Ary, we said: “ ‘[After a feasibility
finding, t]he defendant will be placed in a position comparable
to the one he would have been placed in prior to the original
[guilt] trial. Under these circumstances, no due process violation
occurs by ultimately placing the burden of proving incompetency
on the defendant in a retrospective hearing.’ ” (Ary, at p. 520,
quoting Tate v. State (Okla.Crim.App. 1995) 896 P.2d 1182,
1188, italics added; see Rodas, supra, 6 Cal.5th at p. 241
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[reaffirming this statement from Ary]; Lightsey, supra, 54
Cal.4th at p. 710 [same].)
Significantly, if the defendant will not “ ‘be placed in a
position comparable to the one he would have been placed in’ ”
(Ary, supra, 51 Cal.4th at p. 520), then a retrospective
competency trial is not feasible. (See Rodas, supra, 6 Cal.5th at
p. 241 [“[W]e 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.” ’ ”]; see
also id. at p. 240 [“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.”].) When a court is
determining whether conditions are sufficiently comparable for
a fair hearing and a reliable result, relevant considerations
include: “ ‘ “ ‘(1) [t]he passage of time, (2) the availability of
contemporaneous medical evidence, including medical records
and prior competency determinations, (3) any statements by the
defendant in the trial record, and (4) the availability of
individuals and trial witnesses, both experts and non-experts,
who were in a position to interact with [the] defendant before
and during trial.’ ” ’ ” (Ary, at p. 520, fn. 3.) If conditions cannot
be made comparable to those that would have prevailed at the
omitted hearing, a hearing to inquire into the defendant’s
mental condition at some earlier point in time would exceed the
narrow framework that we considered in Ary, supra, 51 Cal.4th
510, when we concluded it was consistent with federal due
process for the defendant to bear the burden of proof. Instead,
it would be “nothing but a harmless error determination in
disguise” (James v. Singletary (11th Cir. 1992) 957 F.2d 1562,
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PEOPLE v. WYCOFF
Opinion of the Court by Jenkins, J.
1571, fn. 14), and the People would bear the burden of proving
defendant’s competency beyond a reasonable doubt (see
Chapman, supra, 386 U.S. at p. 24).
Applying Ary’s due process analysis to this case, we
conclude that it is not feasible here to place defendant “ ‘in a
position comparable to the one he would have been placed in
prior to the original [guilt] trial’ ” (Ary, supra, 51 Cal.4th at p.
520; see Rodas, supra, 6 Cal.5th at p. 241; Lightsey, supra, 54
Cal.4th at p. 710). Therefore, a retrospective competency trial
at which defendant bore the burden of proof would violate the
due process clause of the federal Constitution’s Fourteenth
Amendment. (Ibid.)
Consistent with our conclusion here, we note first that in
this case the passage of time since the omitted hearing (13
years) is much longer than — more than double, in fact — the
time gaps in Pate v. Robinson and Drope v. Missouri, where the
United States Supreme Court declined to order a retrospective
hearing, and the gap in Rodas, where we did the same. Nor can
we conclude that that factor is outweighed here by others we
identified in Ary, supra, 51 Cal.4th at page 520, footnote 3.
Aside from Dr. Good’s report itself, the Attorney General does
not point to any specific evidence, such as mental health records
prepared contemporaneously with Dr. Good’s report, that would
now place defendant in a position comparable to his position in
2008, thus making a retrospective competency trial feasible.
The Attorney General asserts that medical personnel had
contact with defendant during the relevant time period and that
these contacts likely resulted in written reports, but despite
being prompted by a letter from this court to address the
feasibility of a retrospective competency trial, the Attorney
General does not state what medical questions those reports
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PEOPLE v. WYCOFF
Opinion of the Court by Jenkins, J.
addressed. More specifically, the Attorney General does not
assert that the reports analyzed defendant’s mental illness in
relation to his ability to consult rationally with counsel.
The Attorney General also points out that defendant
testified extensively at trial, and therefore the trial transcript
could permit a mental health expert to retrospectively evaluate
defendant’s competence. Moreover, the Attorney General
argues that Dr. Good’s report includes lots of information that
defendant could use at a retrospective competency trial and that
the prosecution could use in an attempt to draw a conclusion
different from Dr. Good’s. The Attorney General also notes that
several people who interacted with defendant during the
relevant time period (including his attorneys, the prosecutor,
and Dr. Good himself) might be able to appear as witnesses at a
retrospective competency trial.
But given the passage of time and the corollary difficulty
of reconstructing defendant’s mental state at the time of trial,
none of that potential evidence could possibly place defendant
“ ‘in a position comparable to the one he would have been placed
in’ ” if a timely competency trial had been held in 2008. (Ary,
supra, 51 Cal.4th at p. 520, quoting Tate v. State, supra, 896
P.2d at p. 1188.)
It is true, as the Attorney General argues, that we ordered
an inquiry into the feasibility of making a retrospective
competency determination in Lightsey, supra, 54 Cal.4th 668,
but that case, unlike the one now before us, did not involve Pate
v. Robinson error. In Lightsey, when a doubt arose about the
defendant’s competence to stand trial, the trial court conducted
a timely competency trial, and the defendant was able to develop
his medical evidence, but the trial court erred because the
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Opinion of the Court by Jenkins, J.
statutory obligation to provide counsel at such a trial (see
§ 1368, subd. (a)) was not honored. (See Lightsey, supra, 54
Cal.4th at pp. 699–702.) Under those unique circumstances —
involving state-law error, not a federal constitutional
violation — we concluded that the trial court should at least
consider whether a reliable retrospective competency
determination might be feasible. (Lightsey, at pp. 706–710.) We
reasoned that it might be possible for the trial court to retry the
question of competency, taking advantage of the developed
evidentiary record but giving the defendant the benefit of
counsel that he lacked at his original competency trial. Because
of the existence of the prior competency trial, the problem of
expert witnesses having to testify solely from information
gleaned from a printed record (see Pate v. Robinson, supra, 383
U.S. at p. 387) was, as we put it, “potentially reduced.”
(Lightsey, at p. 707.) In short, Lightsey is nothing like this case,
in which there was no timely, although procedurally invalid,
competency trial.
Precedent from the high court and this court leaves little
flexibility regarding the retrospective competency trial that is
permitted to cure Pate v. Robinson error. Where the defendant
is to bear the burden of proof, the trial must place the defendant
in a position comparable to the one he would have been in at a
timely competency trial. (Ary, supra, 51 Cal.4th at p. 520.)
Assuming such a trial might be feasible in some cases, we
conclude that such a trial is not feasible here. (See Rodas, supra,
6 Cal.5th at pp. 239, 241.)
III. CONCLUSION
The judgment is reversed in its entirety. Defendant may be
retried if the trial court concludes, at the time of such retrial,
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PEOPLE v. WYCOFF
Opinion of the Court by Jenkins, J.
that he is mentally competent. If defendant again seeks to
represent himself, the trial court has discretion, depending on
the medical evidence, to deny self-representation. (See People v.
Johnson, supra, 53 Cal.4th at pp. 530–531.)
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
57
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Wycoff
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S178669
Date Filed: August 23, 2021
__________________________________________________________
Court: Superior
County: Contra Costa
Judge: John William Kennedy
__________________________________________________________
Counsel:
David A. Nickerson, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Jeffrey M. Laurence,
Assistant Attorney General, Glenn R. Pruden, Alice B. Lustre, Roni
Dina Pomerantz and Basil R. Williams, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
David A. Nickerson
5 Astor Circle
Santa Fe, NM 87506
(505) 954-1942
Basil R. Williams
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3885