People v. Battreall CA4/1

Filed 4/6/21 P. v. Battreall CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076975

Plaintiff and Respondent,

v. (Super. Ct. No. SCD278999)

SKYLER JACE BATTREALL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Sharon B. Majors-Lewis, Judge. Reversed.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson and Allison V. Acosta, for Plaintiff and Respondent.
 A jury convicted 20-year-old Skyler Battreall of kidnapping during a

carjacking (Pen. Code,1 § 209.5, subd. (a), count 1) and assault with a deadly
weapon (§ 245, subd. (a)(1), count 3). The jury also made true findings on
great bodily injury and weapon enhancements. The court sentenced Battreall
to life imprisonment with the possibility of parole, a consecutive five-year
term, and imposed certain fees and fines.
On the second day of trial, Battreall became nonresponsive at counsel
table, unable to keep his head up or his eyes open. The next court day, his
lawyer asked the court to conduct competency proceedings, explaining that
Battreall had attempted suicide and counsel had “a serious doubt” as to his
ability to assist in the defense. The court denied the request. On appeal,
Battreall contends the court erroneously refused to conduct a competency
hearing and that his life sentence violates constitutional prohibitions on
cruel and/or unusual punishment. He also challenges the imposition of fees
and fines.
We conclude the trial court erred in failing to conduct a competency
hearing. We further determine that on this record, a retrospective
competency determination is not feasible. Accordingly, we reverse the
judgment without addressing Battreall’s other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People’s Case
In October 2018, Battreall traveled by bus from Texas to San Diego.
After ending up in the Pacific Beach area, at about 9 p.m. he approached a
parked car occupied by 21-year-old Brett C. Battreall told Brett he was from
Phoenix, his motorcycle had just been stolen, and he needed a short ride to

1 Undesignated statutory references are to the Penal Code.
2
meet someone. Unbeknownst to Brett, none of that was true. Because
Battreall was “super nice,” Brett agreed to give him a ride.
After a few blocks, Battreall told Brett to turn into a dark residential
neighborhood. Battreall pulled out a gun, appeared to chamber a round, and
said, “ ‘I’m not from Phoenix. I’m from Washington and I’m wanted for

murder.’ ” Pushing the gun into Brett’s hip, he said, “ ‘Keep going.’ ”2
Brett drove towards populated beach areas, hoping to find help.
Saying, “ ‘Oh no you don’t,’ ” Battreall grabbed the steering wheel, and in the
ensuing struggle they almost hit a parked car. Battreall commanded, “ ‘Stop
the car’ ” and again put the gun into Brett’s hip.
Brett saw two pedestrians on the sidewalk next to the passenger side.
Sticking his head through the open sunroof, Brett yelled, “Help[!] He has a
gun.”
Battreall slammed the gas pedal with his left leg, but Brett had his foot
on the brake, keeping the car stopped, engine revving. Battreall hit Brett in
the face with the gun, knocking out one of Brett’s front teeth and fracturing
the other, leaving only the nerve hanging in his mouth. Pointing the gun at
Brett and saying, “Get out, get out,” Battreall shoved Brett out of the car and
onto the street. Battreall slid over and drove away.
By coincidence, a police officer was driving the opposite direction and
noticed a vehicle coming toward him suddenly turn off its headlights and
abruptly turn at high speed. It was Battreall. About the same time, a police
dispatcher broadcast that a carjacking had just occurred in the area. As the
officer pursued, Battreall crashed into a parked car and fled on foot. Police

2 It was actually an unloaded airsoft gun, but it looks like a semi-
automatic handgun.
3
apprehended him a short time later hiding in the backyard of a nearby
residence.
B. The Defense Case
Testifying in his own defense, Battreall stated that he was removed
from his mother’s custody when he was three years old because of her drug
abuse and prostitution. She died when he was 12. With his father in prison,
Battreall was placed in numerous foster homes, where he was often
physically and sexually abused. Battreall attempted suicide at age 9, then
spent time in a “mental hospital.” Eventually he lived with a non-relative
where he was “exposed to crime” and drugs.
Battreall’s first experience with alcohol was as a toddler (someone
spiked his sippie cup) and he started drinking at age 14. He has taken LSD,
Oxycontin, methamphetamine, cocaine, marijuana, and ecstasy.
Battreall has two prior theft convictions. Since age 17 he has been
living on his own, which he described as “Battreall against the world.”
He travelled to San Diego with 100 tablets of ecstasy, over an ounce of
cocaine, and $300 worth of marijuana. Before encountering Brett, he had
taken “a lot” of cocaine and ecstasy. That night, he was “very high.”
Battreall testified he carried the airsoft gun for “protection” because he
was a “stranger” in San Diego and “the world is unpredictable.” As nightfall

approached, and with no place to stay and little money3, he approached
Brett, but without any plan. His thoughts “were everywhere.”
When Brett drove into the dark residential area, Battreall was
paranoid and panicked, thinking “only the worst could possibly happen to me

3 Earlier in the day, Battreall paid $150 for a tattoo on his face and took
a $60 cab ride from the bus station to Pacific Beach.
4
in a million ways.” He admitted hitting Brett with the gun, but stated, “I was
under the influence. I couldn’t function or gather my thoughts.”
A clinical and forensic psychologist, Kristina Malek, Ph.D., examined
Battreall and diagnosed him as having a trauma and stressor-related
disorder. Dr. Malek testified that the human brain continues developing to
about age 25, and severe childhood trauma can adversely affect that
development. She stated that people who are constantly traumatized will be
hypervigilant and overreact to perceived threats. In this case, Dr. Malek
believes that Battreall misperceived certain environmental “cues”—the dark
secluded residential area—and impulsively reacted to that perceived threat
and fear.
DISCUSSION
A. The Court Erred in Determining Not to Conduct a Competency Hearing.
1. Additional Factual Background
Mid-morning during the second day of trial testimony, and after
informing the jury that Battreall was “very ill right now,” the court excused
the jury for the rest of that Friday. With the jury gone and paramedics en
route, the court remarked that Battreall “seems to be out of it, ill . . . .”
Nonetheless, the judge emphasized that “I don’t want to stop this trial and
have a mistrial.” Defense counsel stated that Battreall’s “eyes are red and
rolling,” and he “couldn’t keep his head up or his eyes open.” The court
responded that “we have to finish this trial. We are invested now at this
point.” Shortly thereafter, paramedics transported Battreall to a hospital.
The next court day (Monday), outside the jury’s presence the court
stated, “I want to get the jury in here because we lost pretty much a day last
week and we’re now almost an hour later than I wanted to get started.” The
court noted that late Friday the clerk received an e-mail from defense counsel

5
stating he intended to move for mistrial. Although the motion had not yet
been filed the court denied it stating, “I’m not going to grant a motion for
mistrial.”
The court told counsel that she had spoken to her bailiff “this morning,
who told me he accompanied Mr. Battreall last week” to the hospital. She
continued, “I got some information as well about what may have happened,
so I don’t think that has anything to do with whether he understands the
nature of the proceedings against him and whether he is able to assist in his
own defense.”
Defense counsel asked to address the court “ex parte in camera”
because he had “a serious doubt as to Mr. Battreall’s competency.” Counsel
explained that he met with Battreall the previous night (Sunday). He said,
“[B]ased on our confidential privileged communication, I believe that this was
an attempted suicide.” Counsel added, “Based on my conversations with him,
Your Honor, I do not believe he is grounded. I believe that there may be
signs that he is going into a psychosis. He’s not the same as he was prior to
this incident, and I think the court should really take—”
Interrupting, the court stated, “you have really put me in a bind. The

first time I am hearing about this—you could have e-mailed me yesterday.4
You could have told me this and I could have had you all come in here early.
I am not buying it.” The court stated “there is some malingering going on
here.” The court directed the jury to be brought in and stated, “we will take
it up on a break.”

4 The previous court day, in response to the prosecutor’s suggestion that
defense counsel e-mail “the Court directly and myself” with an update on
Battreall’s condition, the court stated, “I don’t ever take e-mails.”

6
 Meanwhile, the prosecutor filed a summary of a recorded jail telephone
conversation occurring on August 21 (two days before Battreall was
unresponsive at counsel table) between Battreall and a woman in Texas.
During the call, Battreall discussed jury selection and had a cogent
conversation about recent events.
At mid-day, outside the jury’s presence the court stated the recorded
conversation “seems to indicate that at least on the 21st and 22nd, I am not
going to go into it right now because it’s lunchtime, but Mr. Battreall at that
time had a very good idea of what was happening in the trial, what was left
to be done, of the jury selection process and so forth.” The court said it would
dismiss the jury early and allow defense counsel to “talk about it at length.”
After the court dismissed the jury at 4:24 p.m., counsel asked to be
heard “on my request under Penal Code section 1368,” remarking, “I have

been asking to be heard all day today.”5 Without permitting argument, the
court said, “Let me rule on that,” and explained that her bailiff had informed
her that Battreall’s hospitalization “wasn’t a big deal.”
“The Court: I have been told that at the hospital, the
defendant may have taken multiple doses of his prescribed
medication, and I have been told from my deputy, who spoke
to the medical staff there, who indicated that it wasn’t a big
deal, they didn’t have to pump his stomach and they were
just observing him and that it might make him a little bit
woozy. So they didn’t keep him. They didn’t pump his
stomach. So there was no indication that he had
overdosed.” (Italics added.)
Despite prefacing her remarks with, “Let me rule on that,” the court
deferred a final ruling to the next day. She told defense counsel, “So,
tomorrow we will take it up. But I don’t think you can overcome it because

5 Section 1368 pertains to inquiries into a defendant’s mental
competence when doubt arises prior to judgment.
7
he is attentive, and [the jail call] belies the fact that he doesn’t understand
the nature of the proceedings.” Before leaving the courtroom, defense counsel
asked the court for “at least 30 to 40 minutes” for argument the next day.
After the court responded, “I’m not going to guarantee that,” defense counsel
stated, “Then I want to talk about it now.” The court replied, “You can’t boss
me around.”
The next morning (Tuesday), the court announced that it would not
give defense counsel “30 to 45 minutes” because it “only takes a couple of
minutes” to show a person is incompetent to stand trial. The court informed
counsel she was considering appointing a mental health expert “to help
determine whether to order a competency hearing.” Referring to another ex
parte communication with her bailiff, the court stated the deputy reported
that Battreall’s only prescribed medication is an inhaler for asthma.
Defense counsel responded, “Mr. Battreall was not able to keep his
head up. I had to—I tried to get his attention a couple of times. Finally I got
his attention. He looked at me. His eyes were completely red and they
started rolling in the back of his head.” The following colloquy occurred next:
“The Court: Stop. That has nothing to do with his mental
competence. . . . [W]e stopped the whole trial in the middle
of a witness and we recessed for the entire day and we took
him to the hospital and they did not come back with any
diagnosis again. Their only thing they said was that he
was dehydrated. He had not taken any medication that
required his stomach to be pumped. I don’t know if he’s
malingering. I don’t know if he took a pill. . . .”
“Defense counsel: I don’t know any of what you’re saying
about his records or diagnosis is true. We have no
documentation to prove that.”

8
Defense counsel added that not only had Battreall attempted suicide on

Friday, “[h]e has not been medicated for two months.”6
The court replied, “I can’t let you just give me hearsay that he
attempted suicide.” In response, defense counsel told the court that when the
paramedics arrived on Friday, Battreall told them he had taken 14
Trazodone pills. Counsel explained, “I believe that he attempted suicide and
I had a serious doubt as to his ability to rationally assist me in his defense.
Due to my conversation with him, he appeared to not be mentally sound.”
Counsel asked for an in camera hearing where he could privately disclose
these privileged communications. But the court rejected that, stating, “No, I
can’t go ex parte.”
Addressing defense counsel, the court added, “Are you really saying to
the court that because your client may have taken—purposely taken some
medication that he knew he was not supposed to take in quantities, but he
knew he was not supposed to take, that he gets a free ride now?” “You’re
talking about someone and saying, from hearsay statements that he told you
or told paramedics that he took 14 pills . . . . [¶] But the question is, did he
just do something to temporarily make him foggy or does he have a mental
condition that prohibits him from helping his own defense. I would say the
evidence is contrary to that.”
Referring again to the recorded jail call, the court stated, “The phone
call belies your argument that he doesn’t understand the nature of the
proceedings again [sic] him.” When defense counsel noted, “All of that
evidence predates the suicide attempt,” the court replied, “It doesn’t matter.”
“I cannot buy that he actually, in two days, lost his competency. I am not

6 According to defense counsel, on intake at the jail Battreall had been
prescribed Remeron and Trazodone, anti-depressants.
9
sending him for a [section] 1368 no matter what you say, but I am willing to
temporarily ask for an expert to be appointed to determine whether he is
entitled to a full [section] 1368 [evaluation]. And I do intend to keep this jury
on call.” The court further stated, “I’m not going to give you the mental
competency hearing unless I think he’s incompetent.”
The court then questioned Battreall, asking if he was “following” the
witness testimony. Battreall replied, “As thoroughly as my mind will let me,
Your Honor.”
Again the court stated, “I don’t believe that he’s incompetent to stand
trial under [section] 1368. I still don’t believe that.” Concluding there was no
“objective substantial evidence of the defendant’s incompetence,” the court
denied the requested competency hearing.
2. Legal Standards for Holding a Competency Hearing.
“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 . . . 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.’ ” (People v. Flinner
(2020) 10 Cal.5th 686, 760 (Flinner); accord People v. Johnson (2018) 21
Cal.App.5th 267, 276 (Johnson) [competence means “ ‘the mental acuity to
see, hear and digest the evidence, and the ability to communicate with
counsel in helping prepare an effective defense’ ”].)
The defendant has a right to a competency hearing “ ‘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

10
assisting in his defense.’ ” (Flinner, supra, 10 Cal.5th at p. 760.)
“[S]ubstantial evidence for this purpose is evidence ‘that raises a reasonable
or bona fide doubt’ as to competence . . . .” (Ibid.) Where the defendant
makes this showing, the court must hold a competency hearing, and it is
immaterial that the prosecution’s evidence of competency, or the court’s own
observations of the defendant, may be to the contrary. (People v. Rodas
(2018) 6 Cal.5th 219, 231 (Rodas).)
Suicide attempts, in combination with other factors, may constitute
substantial evidence raising a bona fide doubt regarding a defendant’s
competence to stand trial. (People v. Rogers (2006) 39 Cal.4th 826, 848.)
However, evidence of mental illness alone is insufficient to raise a doubt as to
competency. [Citation.] Bizarre statements or actions, taken in isolation, do
not require a court to hold a competency hearing.” (In re Sims (2018) 27
Cal.App.5th 195, 209.)
3. The Trial Court Based its Determination on Inadmissible Hearsay
Acquired Through Improper Ex Parte Communications with the
Bailiff.
Battreall was clearly incompetent to stand trial when on August 23 he
“seem[ed] to be out of it” , his “eyes [were] red and rolling,” and he “couldn’t
keep his head up or his eyes open.” The critical issue is whether there was
evidence creating a reasonable doubt of Battreall’s competency thereafter.
The trial court determined there was no such evidence because (1) two days
earlier in the recorded jail phone call, Battreall cogently described jury
selection and other matters; and (2) the bailiff reported that according to
hospital staff, Battreall did not overdose but was merely dehydrated.
The fundamental problem with the court’s analysis is that the
communications between the court and the bailiff were conducted outside the
parties’ presence. The court stated, “I think he is malingering,” adding, “And

11
for your information, my deputy, Carlos Saldivar, was there at the hospital.”
(Italics added.)
“The Court: And my deputy asked the question, ‘Why
aren’t you pumping his stomach? And my deputy is the one
that did give me hearsay that said there’s really nothing
wrong with him. . . . So the hearsay that you’re talking
about comes from my deputy who I trust. I find him to be
an honest person. [¶] So I don’t think he’s incompetent.”
These ex parte communications violate judicial norms. The Code of
Judicial Ethics (Code) provides, “A judge shall not initiate, permit, or
consider ex parte communications, that is, any communications to or from the
judge outside the presence of the parties concerning a pending or impending
proceeding, and shall make reasonable efforts to avoid such communications
. . . .” (Cal. Code Jud. Ethics, canon 3B(7).) The Code further provides, “In
any discussion with . . . court personnel, a judge shall make reasonable
efforts to avoid receiving factual information that is not part of the record or
an evaluation of that factual information.” (Id., canon 3B(7)(a).) “Court
personnel” includes bailiffs. (Ibid.)
Moreover, not only was the court’s ruling based on ex parte
communications with the bailiff, the bailiff’s report of what hospital staff told
him is inadmissible hearsay—actually, two levels of inadmissible hearsay.
And while there is no reason to doubt the deputy’s veracity in reporting that
conversation, the evidentiary concern is not with his credibility. The hearsay
problem is that hospital staff—the hearsay declarants—were not in court
and, therefore, not subject to cross-examination. As defense counsel sharply
noted, “I don’t know any of what you’re saying about his records or diagnosis
is true.”
Also troubling is the court’s application of a double standard. In
determining that there was “nothing really wrong” with Battreall, the court

12
relied on hearsay—the bailiff’s report of his communications with hospital
staff. But when defense counsel reported that Battreall stated he had
overdosed, the court replied, “I can’t let you just give me hearsay that he
attempted suicide.”
4. The Court Abused Its Discretion in Refusing Defense Counsel’s
Request for an In Camera Hearing.
Upon returning to court on Monday (three days after Battreall was
hospitalized), defense counsel asked to speak to the court “ex parte in
camera,” stating he had “a serious doubt as to Mr. Battreall’s competency.”
Counsel had met with Battreall the previous night and stated, “based on our
confidential privileged communication, I believe that this was an attempted
suicide.” The court refused counsel’s request, stating, “I can’t have any ex
parte communications with the defense attorney while we are in the middle

of a trial, and especially since the matter is pending.”7
The next day, the prosecutor filed points and authorities that cited

California Rule of Court,8 rule 4.130(b)(2), which authorizes defense counsel
to present his or her opinion regarding competency in camera if privileged

attorney-client communications would be disclosed.9 Defense counsel
renewed his request for an in camera hearing, stating:

7 The court never explained why it believed the prohibition on ex parte
communications did not also apply to her communications with the bailiff
about Battreall’s hospitalization.
8 Undesignated references to rules are to the California Rules of Court.
9 Rule 4.130(b)(2) provides in part: “The court may allow defense counsel
to present his or her opinion regarding the defendant’s mental competency in
camera if the court finds there is reason to believe that attorney-client
privileged information will be inappropriately revealed if the hearing is
conducted in open court.”
13
 “Defense counsel: The paramedic asked [Battreall] what he
took, and I heard 14 Trazodone. When I went to go visit
him, after I visited him, based on my confidential privileged
communication with him, I believe that he attempted
suicide and I had a serious doubt as to his ability to
rationally assist me in his defense. Due to my conversation
with him, he appeared to not be mentally sound. He was
saying things to me that he had never said before that I
believe are confidential and privileged that I would be
happy to go and discuss with the court.”
Without explanation, the court denied counsel’s request, stating, “No, I can’t
go ex parte.” In light of rule 4.130(b)(2), this was a mistake. The court’s lack
of awareness of and failure to exercise the discretion that rule 4.130(b)(2)
affords is itself an abuse of discretion. (People v. Lettice (2013) 221
Cal.App.4th 139, 147.)
5. The Court Applied an Incorrect Legal Standard
When faced with conflicting evidence regarding competence, the trial
court’s role is only to decide whether there is substantial evidence raising a
reasonable doubt of incompetence—not to resolve the conflict. Resolution
must await expert examination and the opportunity for a full evidentiary
hearing. (Rodas, supra, 6 Cal.5th at p. 234.) It is only after the evidentiary
hearing that the court decides the issue of competency. (People v. Tomas
(1977) 74 Cal.App.3d 75, 89.)
In this case, entirely apart from engaging in inappropriate ex parte
communications, considering inadmissible hearsay, and erroneously refusing
the requested in camera hearing, the court also erred by applying an
incorrect legal standard. Despite the complete absence of any psychological
evaluation of Battreall’s competence to stand trial, the court adjudicated the
ultimate issue, stating, “I’m not going to give you the mental competency
hearing unless I think he’s incompetent.”

14
 The closest the court came to articulating the correct standard occurred
immediately before ruling, when the court stated, “I don’t have at this point
objective substantial evidence of the defendant’s incompetence . . . .” But
even this formulation is incorrect. The issue was not whether there was
substantial evidence of incompetence, but whether there was substantial
evidence raising a reasonable doubt of competency. (People v. Tejeda (2019)
40 Cal.App.5th 785, 793 (Tejeda).) Further, the evidence raising such doubt
need not be “objective.” Rather, it is the ruling that is measured by an
objective standard. The doubt triggering the obligation to order a hearing is
one that a reasonable jurist would have in light of the defendant’s showing.
(Johnson, supra, 21 Cal.App.5th at p. 276.)
Moreover, that Battreall appeared lucid days earlier during the
recorded jail phone call does not necessarily mean he remained competent.
Mental health can be fluid; Battreall’s competency could change even in a
short time, especially in light of defense counsel’s representation that
Battreall, who had been prescribed antidepressants on jail intake, had not
been medicated for two months. (See Johnson, supra, 21 Cal.App.5th at
p. 277.) “ ‘Even when a defendant is competent at the commencement of
[their] trial, a trial court must always be alert to circumstances suggesting a
change that would render the accused unable to meet the standards of
competence to stand trial.’ ” (People v. Hines (2020) 58 Cal.App.5th 583, 632.)
We recognize that not every suicide attempt creates a reasonable doubt
as to competency. But where a suicide attempt occurs in the midst of trial
and is accompanied by other evidence (such as a significant mental health
history), the calculus may raise a reasonable doubt of competency. (See
Maxell v. Roe (9th Cir. 2010) 606 F.3d 561, 570‒571 [discussing cases where a
competency hearing was required when defendant attempted suicide].)

15
 We also understand the trial court’s concern that Battreall may have
been attempting to game the system by means of a self-inflicted overdose

designed to delay trial.10 But the relevant issue is not whether the evidence
is sufficient to support the trial court’s finding that Battreall was competent.
The question is whether there is substantial evidence that he might not be
competent. (Johnson, supra, 21 Cal.App.5th at p. 280 [if there is substantial
evidence that the defendant “might be incompetent, due process dictates a
full exploration of [his] mental health”].)
In sum, in denying defense counsel’s request for a competency hearing,
the trial court (1) improperly relied on ex parte communications with the
bailiff; (2) improperly considered inadmissible hearsay of hospital staff;
(3) erroneously refused to consider defense counsel’s request for an in camera
hearing; and (4) applied an incorrect legal standard. Any one of these errors
might well require reversal. Considered together, they manifestly compel

that result.11
6. A Retrospective Competency Hearing is Not An Appropriate Remedy
in This Case.
Ordinarily when a trial court erroneously fails to order competency
proceedings, the judgment is reversed because the court has deprived the

10 The Court: “Are you really saying to the court that because your client
may have taken—purposely taken some medication that he knew he was not
supposed to take in quantities, but he knew he was not supposed to take, that
he gets a free ride now?”
11 Because of this disposition, it is unnecessary to address Battreall’s
contentions that the court’s rulings were the product of judicial bias. In any
event, “ ‘[A] trial court’s numerous rulings against a party—even when
erroneous—do not establish a charge of judicial bias, especially when they
are subject to review.’ ” (People v. Pearson (2013) 56 Cal.4th 393, 447.)

16
defendant of due process. (Gonzales, supra, 34 Cal.App.5th at p. 1086.)
However, the Supreme Court has left open the possibility that in some cases,
a retrospective competency hearing may be an appropriate remedy. (Rodas,
supra, 6 Cal.5th at p. 238.) “In cases involving unusual circumstances where
reliable evidence of the defendant’s mental condition at the time of trial
would be available,” appellate courts have found a retrospective competency
hearing to be an appropriate remedy on remand. (Gonzales, at p. 1088.)
“The key question in determining whether retrospective relief is feasible is
whether there is sufficient evidence in the record to reliably determine the
defendant’s mental competence at the time of his earlier trial. [Citation.] In
‘unusual circumstances’ the record may include ‘reliable evidence of the
defendant’s mental condition’ at that earlier point in time. [Citation.] But
where, as is typically the case, the defendant exhibits fluctuating symptoms,
significant time has passed, or there is a lack of contemporaneous expert
evaluations, reliable retrospective evaluation is simply not feasible.” (Tejeda,
supra, 40 Cal.App.5th at p. 796.)
We conclude this case does not present the unusual circumstances that
would make a retrospective evaluation of Battreal’s competency feasible. As
is so often the case, the insurmountable problem is the lack of an adequate
record. (See People v. Ary (2004) 118 Cal.App.4th 1016, 1028 [“there will
seldom be sufficient evidence of a defendant’s mental state at the time of
trial” due to the “trial court’s initial failure to hold a timely competency
hearing”].) There was no reasonably contemporaneous expert evaluation of
Battreall’s mental state, and this evidentiary void is only compounded by
trial court’s failure to allow defense counsel an in camera opportunity to
provide additional information.

17
 Moreover, the Supreme Court has cautioned courts about the
“ ‘inherent difficulties’ ” of a retrospective competency determination where a
defendant displays “fluctuating . . . symptoms” in conjunction “with the
passage of time, and the lack of contemporaneous expert evaluations.”
(Rodas, supra, 6 Cal.5th at pp. 239‒240.) Battreall’s case has all these
earmarks. What little the record contains on the question of competency is
that Battreall exhibited fluctuating symptoms that may have been
medication dependent. He was clearly incompetent when unresponsive at
counsel table on the second day of trial, but cogent just two days earlier
during the recorded jail call. It is now three years after the fact, and without
the benefit of any contemporaneous psychiatric evaluation in the record, a
retrospective determination would neither be fair nor produce a reliable
result. (Id. at p. 240.)
DISPOSITION
The judgment is reversed. Battreall may be tried on the charges for

which he was previously convicted if he is competent to stand trial.12

DATO, J.
WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

12 In light of the trial court’s receipt of ex parte communications regarding
Battreall’s competency to stand trial (ante, Discussion at part A.3),
proceedings on remand should be assigned to a different judicial officer.
18