People v. Roark CA1/2

Filed 11/19/20 P. v. Roark CA1/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A151503
v.
DAHESI NIGEL ROARK, (Solano County
Super. Ct. No. VCR222819)
Defendant and Appellant.
Defendant Dahesi Nigel Roark was convicted of first degree residential
robbery and found to have multiple prior serious or violent felony convictions.
Almost a year after trial but before sentencing, defense counsel expressed
doubt as to Roark’s competence “moving forward,” and the trial court ordered
two psychological evaluations. At a subsequent hearing on the matter,
defense counsel submitted the issue of competence on the psychologists’
reports, and the trial court found Roark competent. Roark was sentenced to
30 years to life in prison.
Roark appealed, arguing (1) there was insufficient evidence to support
the trial court’s finding of competence and (2) the court erred in failing to
refer him to the regional center for the developmentally disabled (Regional
Center) for assessment. We rejected Roark’s arguments and affirmed the
judgment on September 27, 2018. (People v. Roark (Sept. 27, 2018, A151503)
[nonpub. opn.].)
1
Roark petitioned for rehearing, asserting rehearing was required to
address the availability of newly enacted Penal Code1 section 1001.36, which
created a pretrial diversion program for persons with certain mental health
disorders. We denied the petition for rehearing on October 25, 2018. Roark
then petitioned for review in the California Supreme Court, arguing, among
other things, that he was entitled to remand to the trial court to seek mental
health diversion under section 1001.36.
On January 16, 2019, the Supreme Court granted Roark’s petition for
review and deferred further action pending its decision in People v. Frahs,
which was filed on June 18, 2020. (People v. Frahs (2020) 9 Cal. 5th 618
(Frahs).)
On August 19, 2020, the Supreme Court directed us to vacate our prior
decision and to reconsider the cause in light of Frahs. Accordingly, we vacate
our decision of September 27, 2018, and, upon reconsideration, we
conditionally reverse the judgment of conviction and remand to the trial court
to determine in the first instance whether Roark is eligible for mental health
diversion under section 1001.36. The Supreme Court’s order does not affect
any other aspect of our prior decision, and we again reject Roark’s claims of
error in the competency determination.
BACKGROUND
In March 2016, a jury found Roark guilty of first degree residential
robbery and found true the allegation the residence was inhabited. In a
subsequent court trial, the court found Roark had three prior serious felony
convictions within the meaning of section 667, subdivision(a)(1), three prior
1 Further undesignated statutory references are to the Penal Code.
2
serious or violent felony convictions within the meaning of section 667,
subdivisions (b)–(i), and had served three prior prison terms (§ 667.5).
On March 6, 2017, the date scheduled for judgment and sentencing,
defense counsel filed a Romero2 motion to strike Roark’s prior convictions
arguing, among other things, that evidence of Roark’s developmental
disability justified dismissal of his prior “strike” convictions.3 In a
declaration filed in support of the Romero motion, neuropsychologist Dr.
Howard Friedman stated that he had examined Roark in 2001 and offered
his opinion at that time that Roark was developmentally disabled. More
recently, Friedman evaluated Roark in July and September 2016 and
concluded Roark continued to have a mild intellectual disability. He found
Roark “functions equivalent to a 5 year old regarding his language
comprehension.”4
At the court hearing that day, defense counsel also raised a doubt as to
Roark’s competence. He told the court, “There’s another issue, your Honor,
based upon my filings and my interaction with Mr. Roark for over several
years’ period of time, and my review of the case law, I think it’s prudent to
2 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero).
3There was a long delay between Roark’s conviction and sentencing
because Roark was facing a life sentence under the Three-Strikes Law, and
defense counsel requested and was granted repeated continuances to give
counsel time to prepare a Romero motion.
4Friedman did not expressly opine that Roark was incompetent to be
sentenced, but he wrote in a letter attached to the Romero motion, “There are
questionable elements of his competency. In particular, he has limitations
with any understanding of legal concepts and facts. . . . He is simplistic in his
reasoning and how he can apply his limited knowledge base to any rational
understanding of the legal situation. [Roark’s c]apacity to assist [his]
attorney is limited by virtue of his poor intellectual functioning as, again, his
thinking is quite simplistic and repetitive.”
3
declare a doubt about his competency moving forward. I think, based upon
his long history of developmental disability, I think we should probably have
this thing sent to the Regional Center for evaluation as to whether or not he
is or is not developmentally disabled.”
The court asked whether Roark had been a client of the Regional
Center before. Defense counsel responded no, but “I reviewed the case law, I
think based upon my analysis, knowing what I know, I don’t want this thing
to come back for a retro grade [sic] competency.”
The court stated, “I think I need to do the standard process. In the
event through the standard process, the traditional process we determine
that additional steps, as a result of disability are in order, we take those
steps. But if he’s never been a Regional Center client, I’m not going to do
that at this point. Can we stipulate to one doctor or do you want two?”
Defense counsel asked for two evaluators.
The court suspending criminal proceedings and appointed Drs.
O’Meara and Nakagawa to evaluate Roark.
Both court-appointed psychologists interviewed Roark and concluded
he was competent. After the psychologists submitted their reports, at a
hearing on April 6, 2017, defense counsel and the prosecutor submitted on
the reports. Defense counsel also said, “I reviewed both Dr. O’Meara and the
other doctor’s report this morning and it appears he’s competent.” Relying on
the doctors’ reports, the trial court reinstated criminal proceedings and
eventually sentenced Roark.
DISCUSSION
A. Sufficiency of the Evidence
“A defendant who is mentally incompetent cannot be tried or adjudged
to punishment. (§ 1367, subd. (a); Pate v. Robinson (1966) 383 U.S. 375, 378.)
4
A defendant is mentally 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.’ (§ 1367, subd. (a).) The defendant has the
burden of proving incompetency by a preponderance of the evidence. (§ 1369,
subd. (f); People v. Medina (1990) 51 Cal. 3d 870, 881–886.” (People v.
Marshall (1997) 15 Cal. 4th 1, 31.)
Roark contends there was no substantial evidence to support the
court’s finding that he was competent. We review the trial court’s finding “for
support by substantial evidence in the record—that is, for evidence that is
reasonable, credible, and of solid value.” (People v. Jackson (2018) 22
Cal. App. 5th 374, 392.)
Here, two psychologists evaluated Roark in person and submitted
reports to the court concluding he was competent. Dr. Janice Nakagawa
interviewed Roark at the county jail on March 29, 2017. He was then 36
years old. Roark reported that he was in special education classes from
seventh grade until he left school in tenth grade “ ‘because of drugs.’ ” He
stated he “ ‘was on SSI since [he] was a kid’ ” because “ ‘they said [he] was
mentally retarded . . . .’ ” Roark said he was designated “DD1” in jail, which
referred to the presence of developmental delays or disability. Nakagawa
found “[c]ognitively, [Roark’s] fund of information was limited. . . . Verbal
abstraction abilities (his understanding of how two items are alike) were
grossly intact but he tended to be simplistic and concrete in thinking . . . .
Overall, intellectual functioning was estimated to be in the borderline range.”
Nakagawa gave her opinion that Roark was competent. She found,
“with respect to his understanding of various aspects of criminal proceedings,
it was evident that Mr. Roark did not have any difficulties. He was able to
5
identify various pleas such as guilty, not guilty, as well as roles and functions
of courtroom officials. He was also able to demonstrate understanding of his
rights and responsibilities as a defendant.” By his own admission, Roark
knew he had been found guilty of robbery by a jury and a life sentence was
possible. (Nakagawa noted Roark said, “ ‘Maybe I’m looking at 3 strikes—I
don’t know—I’m confused.’ ”) She wrote, “Despite his voiced confusion, [my]
impression was that there was no notable difficulties about his
understanding due to any mental health problems. With respect to
competency issues, Mr. Roark certainly is able to understand the nature and
purpose of proceedings being taken against him and he can assist counsel in
matters pertaining to his case.” (Italics added.)
Dr. Kathleen O’Meara interviewed Roark at the county jail on March
31, 2017. In preparation for the interview, she reviewed the criminal
complaints, his probation presentence report, and his jail medical/psychiatric
chart. She noted that Roark’s reading skills were poor and “he gets help from
others when he needs to comprehend written material.” She also noted that
he served 11 years in prison for a prior robbery “during which time he was
identified as suffering a mild developmental disability (DD1) and requiring
mental health case management.” O’Meara wrote that Roark identified the
charges against him and that he knew he could serve a lengthy prison term
“if convicted.” He knew it was “possibly a third strike.” Roark also believed
his competency “was being questioned because ‘I’m developmentally
disabled.’ ”5
5Roark argues O’Meara mistakenly believed his trial was pending
when she interviewed him. The record on this point is ambiguous. O’Meara
read the probation presentence report before meeting Roark, but she also
noted that Roark faced a lengthy prison term “if convicted.”
6
O’Meara gave her opinion that Roark was competent to stand trial.
She wrote, “He has an adequate appreciation of the nature and purpose of the
proceedings taken against him and he is capable of cooperating rationally
with counsel in preparing his defense.” O’Meara noted that Roark
understood the roles of his attorney, the district attorney, the judge, and
witnesses. She continued, “The defendant appears to be of below average
intellectual functioning. However, he does understand the nature of the
charges against him and that he faces a possible serious penalty involving
prison confinement. . . . He appears capable of providing reasonable
assistance to his attorney.”
Defense counsel was entitled to offer evidence in support of his
allegation of mental incompetence and to offer testimony to rebut the court-
appointed evaluators, but he chose not to. (§ 1369, subd. (b)–(d).)
“[A] single witness may establish any fact. [Citations.] It is ‘not the
role of this court to redetermine the credibility of experts or to reweigh the
relative strength of their conclusions.’ ” (People v. Kirvin (2014) 231
Cal. App. 4th 1507, 1514 (Kirvin).) The reports of Drs. Nakagawa and
O’Meara provide substantial evidence for the trial court’s determination that
Roark was competent to be sentenced.
For the first time on appeal, Roark challenges both doctors’ evaluations
based on “absence of any evidence that either O’Meara or Nakagawa was
qualified to opine whether [Roark] had an intellectual disability and whether
that disability rendered [him] incompetent.” These challenges fail because
“defendants may not attack the validity of expert reports to which they
submit with arguments they did not present to the trial court.” (Kirvin,
supra, 231 Cal.App.4th at p. 1514.) This is because “unlike the adjudication
of criminal guilt, which presumes a defendant’s innocence and places the
7
burden of proof on the state, [a] defendant is presumed competent.” (People
v. Blacksher (2011) 52 Cal. 4th 769, 797 (Blacksher).) When the issue of
competency is raised, the defendant assumes the burden of proof. (Ibid.,
citing §§ 1096, 1369, subd. (f).) “Under these circumstances, by failing to
object below, [the] defendant deprive[s] the prosecution of the opportunity to
rebut any objections with evidence supporting the presumption of
competency. (Ibid.)
At the hearing on April 6, 2017, defense counsel could have objected to
the evaluators’ reports on the grounds he raises now. In response, the
prosecution could have presented evidence of the psychologists’ qualifications
and called them as witnesses to opine more specifically on how Roark’s
developmental or intellectual disability affected his competency. (§ 1369,
subd. (c).) But having failed to raise these objections at trial, Roark has
forfeited these claims on appeal. (See Blacksher, supra, 52 Cal.4th at pp.
797–798 [where defendant submitted the question of competency on doctors’
reports, he forfeited appellate claim that the trial court erred in relying on
allegedly insufficient reports]; People v. Weaver (2001) 26 Cal. 4th 876, 904
[“To the extent defendant attempts to impugn the validity of the appointed
experts’ conclusions . . ., the time to raise such a challenge has long since
passed. Having submitted the competency determination on the two
psychiatric reports, defendant may not now relitigate that question with
arguments he did not make below”].)
In short, the two psychologists’ reports in the record are sufficient
evidence of competence, and Roark has forfeited his challenges to the
psychologists’ qualifications and assessments.
8
B. Failing to Refer Roark to the Regional Center
Next, Roark argues the trial court erred in refusing to refer him to the
Regional Center for evaluation.
Section 1369 governs the conduct of a trial on mental competence.
Subdivision (a), of the statute provides in relevant part, “The court shall
appoint a psychiatrist or licensed psychologist, and any other expert the court
may deem appropriate, to examine the defendant. . . . The examining
psychiatrists or licensed psychologists shall evaluate the nature of the
defendant’s mental disorder, if any, the defendant’s ability or inability to
understand the nature of the criminal proceedings or assist counsel in the
conduct of a defense in a rational manner as a result of a mental
disorder . . . . If it is suspected the defendant is developmentally disabled, the
court shall appoint the director of the regional center for the developmentally
disabled established under Division 4.5 (commencing with Section 4500) of
the Welfare and Institutions Code, or the designee of the director, to examine
the defendant.” (Italics added.)
Our Supreme Court has recognized that an error in failing to appoint
the director of the Regional Center or her designee is not a jurisdictional
error that necessarily requires reversal of an ensuing judgment. (People v.
Leonard (2007) 40 Cal. 4th 1370, 1389.) In Leonard, the defendant Leonard
had epilepsy, a developmental disability, and the trial court did not appoint
the director of the Regional Center to examine him as required under section
1369 when a doubt was raised as to Leonard’s competence. (Id. at p. 1388.)
Leonard argued this statutory violation required reversal of his subsequent
conviction and death sentence, but the Supreme Court disagreed. Rather, the
court held Leonard’s ensuing convictions and sentence “need not be reversed
unless the error deprived him of a fair trial to determine his competency.”
9
(Id. at p. 1390.) The court concluded the failure to appoint the director of the
Regional Center to examine Leonard did not prejudice him because he was
evaluated by doctors who were experienced in the field of developmental
disabilities. (Id. at p. 1391.)
Here, we see no prejudice resulting from the trial court’s denial of the
request for a referral to the Regional Center. The trial court did not foreclose
the possibility of referring Roark to the Regional Center at a later date. To
the contrary, the court indicated that if the appointed psychologists’
evaluations revealed that such a referral was “in order, we [will] take those
steps.” At the April 6, 2017, hearing, defense counsel could have argued the
two evaluators’ reports were inadequate (or argued that the reports
confirmed Roark had a developmental disability that required further
evaluation) and renewed his request for a referral to the Regional Center if
he believed it was necessary to fairly assess Roark’s competence. But defense
counsel chose to submit on the reports instead. As we have seen, Roark was
interviewed and evaluated by two psychologists who were aware of his
limited intellectual functioning and prior designation as developmentally
disabled and nonetheless concluded he was competent, and defense counsel,
after reviewing their reports, agreed “it appears he’s competent.” On this
record, we cannot say the trial court’s initial denial of the request for a
referral to the Regional Center deprived Roark of a fair trial to determine his
competency.
C. Remand Under Frahs
“In June 2018, the Legislature enacted Penal Code sections 1001.35
and 1001.36, which created a pretrial diversion program for certain
defendants with mental health disorders. (Stats. 2018, ch. 34, § 24.)” (Frahs,
supra, 9 Cal.5th at p. 624, fn. omitted.) The statutes apply retroactively;
10
diversion is therefore available to defendants like Roark whose judgments
were not final when the statutes took effect. (Ibid.)
Subdivision (b) of section 1001.36 specifies six criteria required for a
trial court to grant pretrial diversion. The first is “[t]he court is satisfied that
the defendant suffers from a mental disorder as identified in the most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders [DSM],
. . . excluding antisocial personality disorder, borderline personality disorder,
and pedophilia.” (§ 1001.36, subd. (b)(1)(A).)6
Roark first sought the benefit of section 1001.36 in a petition for
rehearing filed October 11, 2018. He asserted he suffered from an
intellectual disability or intellectual development disorder, either of which is
a qualifying mental disorder in the most recent edition of the DSM, and he
sought remand to allow the trial court to consider whether to grant diversion.
In opposition to Roark’s petition for rehearing, respondent urged that
section 1001.36 was not retroactive (a position that has since been rejected in
Frahs, supra, 9 Cal.5th at p. 624.). In addition, he argued that, even
assuming the law was retroactive, remand to the trial court would be futile in
6 “As originally enacted, section 1001.36 provided that a trial court may
grant pretrial diversion if it finds all of the following: (1) the defendant
suffers from a qualifying mental disorder; (2) the disorder played a
significant role in the commission of the charged offense; (3) the defendant’s
symptoms will respond to mental health treatment; (4) the defendant
consents to diversion and waives his or her speedy trial right; (5) the
defendant agrees to comply with treatment; and (6) the defendant will not
pose an unreasonable risk of danger to public safety if treated in the
community. (Former § 1001.36, subd. (b)(1)-(6).) Section 1001.36 was
subsequently amended by Senate Bill No. 215 (2017-2018 Reg. Sess.) (Senate
Bill 215) to specify that defendants charged with certain crimes, such as
murder and rape, are ineligible for diversion. (§ 1001.36, subd. (b)(2), as
amended by Stats. 2018, ch. 1005, § 1.)” (Frahs, supra, 9 Cal.5th at pp. 626–
627.)
11
this case because Roark did not meet two of the statutory criteria for
diversion. First, respondent claimed, “nothing in the trial evidence suggests
that [Roark]’s alleged developmental disability played a significant role in the
charged crime.”7 Second, he argued, “there is no reasonable probability that
the trial court would find [Roark] ‘will not pose an unreasonable risk of
danger to public safety’ if granted diversion . . . .”8 Respondent did not
dispute that an intellectual disability is a qualifying disorder under section
1001.36, however.
As mentioned, we denied Roark’s petition for rehearing, the Supreme
Court then granted Roark’s petition for review, and the high court has now
directed this court to reconsider in light of Frahs.
Respondent stands by his position stated in opposition to the petition
for rehearing that remand in this case would be futile. In a one-page letter to
this court dated September 2, 2020, he reiterates, “there is no reasonable
probability that the superior court would deem [Roark] a suitable candidate
for pretrial diversion . . . .”
In a letter brief dated October 6, 2020, Roark expands on his position.
He relies on Frahs, in which our high court held, “a conditional limited
7This corresponds with the second criterion to qualify for diversion
that “[t]he court is satisfied that the defendant’s mental disorder was a
significant factor in the commission of the charged offense.” (§ 1001.36, subd.
(b)(1)(B).)
8The sixth criterion to qualify for diversion is “[t]he court is satisfied
that the defendant will not pose an unreasonable risk of danger to public
safety, as defined in Section 1170.18, if treated in the community. The court
may consider the opinions of the district attorney, the defense, or a qualified
mental health expert, and may consider the defendant’s violence and criminal
history, the current charged offense, and any other factors that the court
deems appropriate.” (§ 1001.36, subd. (b)(1)(F).)
12
remand for the trial court to conduct a mental health diversion eligibility
hearing is warranted when . . . the record affirmatively discloses that the
defendant appears to meet at least the first threshold eligibility requirement
for mental health diversion — the defendant suffers from a qualifying mental
disorder. (§ 1001.36, subd. (b)(1)(A).)” (Frahs, supra, 9 Cal.5th at p. 640.)
Here, the record includes a letter from neuropsychologist Dr. Howard
Friedman in which he concluded defendant “continues to present as having a
Mild Intellectual Disability” based on testing and observation of defendant
conducted on July 26 and September 21, 2016. Intellectual disability is
identified as a type of neurodevelopmental disorder in the 5th edition of the
DSM. Accordingly, the record affirmatively discloses that Roark “appears to
meet at least the first threshold eligibility requirement for mental health
diversion” in that he appears to suffer from a qualifying mental disorder.
(Frahs, supra, 9 Cal.5th at p. 640.) It appears, therefore, that “a conditional
limited remand for the trial court to conduct a mental health diversion
eligibility hearing is warranted” under Frahs. (Ibid.)
Respondent’s arguments against remand do not convince us otherwise.
He argues the record does not show Roark’s mental disorder played a
significant role in the charged crime (the second statutory requirement for
diversion). The Frahs court, however, rejected the argument that a
defendant must demonstrate he meets all six threshold eligibility
requirements under section 1001.36 to qualify for remand. The court
explained, “[I]mposing such a high bar in the posture of proceedings such as
these would be unduly onerous and impractical. When, as here, a defendant
was tried and convicted before section 1001.36 became effective, the record on
appeal is unlikely to include information pertaining to several eligibility
factors . . . .” (Frahs, supra, 9 Cal.5th at p. 638.) “Furthermore, requiring
13
defendants to show they would meet all threshold eligibility requirements
before the appellate court may remand the case to the trial court—which
decides in the first instance whether a defendant is eligible for diversion—
would be inconsistent with any sensible retroactive application of the statute.
That, in turn, would run counter to our usual inference that the Legislature
intends ameliorative statutes like this one to apply as broadly as possible
within the constraints of finality . . . .” (Ibid.) Given our high court’s
reasoning, we will not hold it against Roark that the record may not show his
mental disorder played a significant role in the charged crime. Roark cannot
be expected to have submitted such evidence before the pretrial diversion law
was enacted.
Respondent also claims it is not reasonably probable the trial court
would find Roark meets the sixth statutory requirement for diversion—that
he “will not pose an unreasonable risk of danger to public safety . . . if treated
in the community.” (§ 1001.36, subd. (b)(1)(F).) The Frahs court specifically
did “not address the question of whether an appellate court may . . . decline a
defendant’s remand request when the record clearly indicates the trial court
would have found the defendant ‘pose[s] an unreasonable risk of danger to
public safety’ ([§ 1001.36], subd. (b)(1)(F)) and is therefore ineligible for
diversion.” (9 Cal.5th at p. 640, italics added.) Although the trial court
denied the Romero motion, describing the charged crime as “an
extraordinarily frightening thing where clearly the threat of violence was
present,” respondent has not pointed to anything in the record that clearly
indicates the trial court would have found Roark poses an unreasonable risk
of danger to the community if treated in the community. Roark points out
that, for a defendant to qualify for diversion, a qualified mental health expert
must opine that “the defendant’s symptoms of the mental disorder motivating
14
the criminal behavior would respond to mental health treatment” and the
defendant must consent to diversion and agree to comply with treatment.
(§ 1001.36, subd. (b)(1)(C), (D), and (F).) Roark argues it is not possible for
this court to say how the trial court would assess risk of danger to the public
if treatment were endorsed by a mental health professional and agreed to by
him. And, in any event, we have read the transcript of the sentencing
hearing, and we cannot say it clearly indicates the trial court would not grant
diversion if given the opportunity to exercise its discretion, although that
does not appear likely given some of its comments.9
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to
the trial court with directions to conduct a mental health diversion eligibility
hearing under section 1001.36. We express no opinion as to whether
defendant will be able to show eligibility or whether the trial court should
exercise its discretion to grant diversion if defendant makes the required
showing. We remand with the instructions set forth in Frahs: “ ‘If the trial
court finds that [defendant] suffers from a mental disorder, does not pose an
9 The court said, in denying the Romero motion (which was based on
developmental disability and drug abuse as mitigating factors), “[T]here’s
something to be said for Mr. Roark being proof of the failure of our systems
because all that diagnosis [of developmental disability since 2001], those . . .
conditions were all known before he was sent to the California Department of
Corrections that did absolutely nothing to protect society by empowering him
with any skills, by applying techniques that perhaps would have increased
his chances to have success upon his release. So, I think there’s a lot of
things wrong with a lot of things we do. But the one thing I don’t—I think
the Court has discretion to find circumstances of developmental disability
that it ought to exercise its di[sc]rection. This is not one of those cases. The
fact that the offense occurred so briefly after he was released, the violence
involved in this particular offense, kind of sad all around. But I’m not going
to exercise my discretion and strike any of the strikes.”
15
unreasonable risk of danger to public safety, and otherwise meets the six
statutory criteria (as nearly as possible given the postconviction procedural
posture of this case), then the court may grant diversion. If [defendant]
successfully completes diversion, then the court shall dismiss the charges.
However, if the court determines that [defendant] does not meet the criteria
under section 1001.36, or if [defendant] does not successfully complete
diversion, then his convictions and sentence shall be reinstated.’ ” (Frahs,
supra, 9 Cal.5th at p. 641.)
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_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
A151503, People v. Roark
17