Filed 5/18/21 P. v. Osby CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299496
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA438205)
v. ORDER MODIFYING OPINION
[There is no change in judgment]
DAVID OSBY,
Defendant and
Appellant.
THE COURT:
It is ordered that the opinion filed on April 22, 2021, is
modified as follows:
(1) On page 3, second full paragraph, line 1, after “We”
insert: “conclude that substantial evidence supports the
robbery conviction, however, we”
(2) On page 5, after the main heading “DISCUSSION”,
insert the following subheading: “Sufficiency of the
Evidence of Force or Fear”
(3) Following this subheading, insert:
“Osby contends that there was insufficient evidence to
demonstrate that he used force or fear to steal the toilet
paper or to retain possession of it when he was pursued by
Menjivar, and urges us to reverse the cause without
permitting the People to retry the case. (See People v. Hatch
(2000) 22 Cal.4th 260, 271-272 [double jeopardy bars retrial
where evidence was legally insufficient].) We conclude that
substantial evidence supports Osby’s conviction for robbery.
“In reviewing a challenge to the sufficiency of the
evidence under the due process clause of the Fourteenth
Amendment to the United States Constitution and/or the
due process clause of article I, section 15 of the California
Constitution, we review the entire record in the light most
favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of
fact could have found the defendant guilty beyond a
reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158,
1212.) “ ‘ “[I]f the verdict is supported by substantial
evidence, we must accord due deference to the trier of
2
fact ….” ’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43,
66.)
Here, evidence was presented that, when Menjivar
confronted Osby, Osby threw the toilet paper to the ground,
punched Menjivar five or six times in the face, and called
him “bad names.” When Menjivar grabbed the toilet paper,
Osby pulled out a knife and lunged at Menjivar, trying to
stab him.
Osby argues that he when he threw the toilet paper
down to attack Menjivar he was effectively abandoning it,
and as a consequence, his subsequent violent actions were
not part of the robbery. While this is one possible
interpretation of what occurred, a reasonable juror could
conclude that Osby threw the toilet paper aside not to
abandon it, but to facilitate his attack on Menjivar, and that
the robbery was ongoing until Menjivar successfully
retrieved the toilet paper. Because substantial evidence
supports the jury’s verdict, we defer to its judgment.”
(4) After the above text, insert the following
subheading: “English Competency of Jurors”.
There is no change in judgment.
MOOR, J. RUBIN, P. J.
3
Filed 4/22/21 P. v. Osby CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299496
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA438205)
v.
DAVID OSBY,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mildred Escobedo and Craig J. Mitchell,
Judges. Reversed.
Edward Mahler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Ryan M. Smith,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
In an amended information, defendant and appellant
David Osby was charged with robbery (Pen. Code, § 211
[count 1]),1 resisting an officer (§ 69 [count 2]), and
attempted robbery (§§ 211/664 [count 3]). It was alleged that
Osby used a deadly weapon, a knife, in the commission of
count 1. (§ 12022, subd. (b)(1).) The amended information
further alleged that Osby suffered three prior serious felony
convictions with respect to counts 1 and 3 within the
meaning of the three strikes law. (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d).) With respect to all three counts, it
was alleged that Osby suffered three prior serious felony
convictions within the meaning of section 667, subdivision
(a)(1), and served two prior prison terms (§ 667.5, subd. (b)).
The jury found Osby guilty in counts 1 and 2, but
acquitted him in count 3. It found the prior conviction
allegations to be true.
Osby was sentenced to a total of 25 years to life in
prison, plus a determinate term of 17 years.2 The court
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2The abstract of judgment erroneously reflects a total
determinate term of 16 years.
2
declined to strike Osby’s three prior strike convictions and
imposed a term of 25 years to life in count 1, plus one year
for the knife use enhancement under section 12022,
subdivision (b), plus 10 years for two prior serious felony
enhancements pursuant to section 667, subdivision (a)(1).
The court imposed a full consecutive high term of three years
in count 2, doubled to six years pursuant to the three strikes
law.3
On appeal, Osby contends that (1) he was deprived of
his right to a jury comprised of persons with a sufficient
command of English; (2) there was insufficient evidence to
support his robbery conviction; (3) the trial court failed to
declare a doubt as to his competency; and (4) the two 5-year
prior serious felony enhancements (§ 667, subd. (a)(1)) must
be stricken. The People concede sentencing error, but
otherwise contest Osby’s challenges to the judgment.
We agree with Osby that the trial court abused its
discretion by failing to conduct a reasonable investigation
after it learned that there could be good cause to excuse
Juror No. 7, and by finding Juror No. 7 had a sufficient
command of the English language to serve as a competent
juror. Having reached this conclusion, it is not necessary for
us to address Osby’s remaining contentions. The trial court’s
judgment is reversed.
3 The trial court dismissed the two one-year prior
prison term enhancements under section 667.5 subdivision
(b) in the interests of justice.
3
FACTS
On July 16, 2015, Edwin Menjivar and Hugo Beltran
were working at the Dulceria Beltran market. There was a
display outside the front door of the market of 48-packs of
toilet paper priced at $13 each.
Menjivar was watching the display and saw Osby
approach on a bicycle. Osby picked up a package of the toilet
paper, balanced it on the handlebars of the bike, and rode
away without paying for the toilet paper. Menjivar pursued
Osby on foot until he saw a bicycle food delivery man who
Menjivar knew and asked the delivery man for help.
Menjivar jumped onto the rear axel pegs of the bike, and the
two men chased Osby down the street.
They caught up with Osby, and Menjivar told him to
return the toilet paper. Osby threw the toilet paper on the
ground. Osby then punched Menjivar five or six times in the
face and called him “bad names.” When Menjivar grabbed
the toilet paper, Osby pulled out a knife and lunged at
Menjivar, trying to stab him.
Menjivar jumped back on the bicycle and returned to
the market with the toilet paper. Osby also returned to the
market and demanded that Menjivar return the toilet paper,
which Osby claimed was his. Menjivar refused, and Osby
again punched Menjivar in the face six or seven times.
Beltran saw the fight. He and another person waived
down Los Angeles Reserve Police Officer James Lombardi.
4
They explained that the market had been robbed and the
thief was fighting an employee.
Officer Lombardi ordered the men to stop fighting.
Beltran explained the situation to the officer. Officer
Lombardi then asked Osby what happened. Osby said he
did not know and that he was leaving. Officer Lombardi told
Osby that he could not leave. Osby told Officer Lombardi he
was going to leave and walked toward a backpack, which he
said was his. Officer Lombardi repeated that Osby was not
free to leave. Osby said he was leaving again, but Officer
Lombardi held his bicycle to prevent him. Osby lunged for
his backpack. Officer Lombardi grabbed Osby, but he
quickly got loose. Osby knocked the officer to the ground
and a struggle ensued.4 At some point in the struggle Osby’s
knife fell on the ground. Betran kicked it away so that no
one would get hurt. Bystanders helped Officer Lombardi
restrain Osby and the officer handcuffed him. Menjivar
retrieved the knife and gave it to an officer.
DISCUSSION
During trial, questions arose regarding whether Jurors
No. 6, 7, and 11 were competent to serve on the jury due to
an insufficient understanding of English. Although the
4 Although there was some variance in the witnesses’
testimony there was basic agreement as to what happened
during the struggle. Ultimately, the jury acquitted Osby of
the attempted robbery to which the testimony related.
5
court replaced Juror No. 11 with an alternate juror, it
determined that Jurors No. 6 and No. 7 had sufficient
command of the language. Osby contends that the trial
court abused its discretion by failing to adequately
investigate the extent of the jurors’ understanding, and by
refusing to excuse them despite the fact that their
incompetence to serve on the jury was a “demonstrable
reality.” We agree with Osby with respect to Juror No. 7,
and reverse the judgment on that basis.5
Proceedings
Voir Dire
Prior to commencing voir dire, the trial court advised
the 50 prospective jurors that it would be asking them all
the same set of questions, and described the questions in
turn:
“So you are going to give me the last four of your JID
. . . and then you are going to tell me what part of L.A.
County you reside in because you are all from L.A. County.
5 We include the trial court’s examination of Juror No.
6 and Juror No. 11 insofar as it is helpful for context. We
express no opinion as to the adequacy of the court’s
investigation of the English language ability of these jurors,
and no opinion on the propriety of the trial court’s refusal to
excuse Juror No. 6. Juror No. 11 was excused, and there is
no challenge on appeal to the appropriateness of the trial
court’s ruling in that regard.
6
“I want to know the community, not the address, not
the street, just the community such as Mar Vista, Palms,
Venice, Pomona, Pasadena, Glendale, Eagle Rock,
Koreatown, Chinatown, South Central.
[¶] . . . [¶]
“Then you are going to tell me if you are married, if
you’re separated, if you are divorced, if you are widowed, if
you have a significant other.
“Then I want to know your job, your significant other’s
job and/or ex, and/or spouse, et cetera.
“Then I want to know the job that everyone has in your
home, everyone that is an adult, okay.
“That could be grandma, grandpa, aunt, uncle. It could
be a student from another country. I want to know the jobs
of all the adults under the roof.
“Then I want to know if you have any adult children
living with you or outside, and what their jobs are. Okay.
“They can live anywhere on the planet, I want to know
what they do.
“And then I want to know if you’ve ever served on a
jury before. Now, how you answer, that is real simple. If it
is no, it is no. If you served on a jury before, whether you
were picked or not, whether you went through dismissal or
not, I just need to know the following:
“Yes, I’ve served before. Coming to court is serving.
Yes, you’ve come before, and it was civil or criminal, no
verdict or verdict.
[¶] . . . [¶]
7
“So if it is a yes, it is yes, criminal, no verdict.
“Yes, civil, verdict.”
Juror No. 11
The court then proceeded to go through the questions
one by one with each juror. The court questioned Juror No.
11, then seated as Prospective Juror No. 11, as follows:
“The Court: . . . Juror Number eleven.
“Prospective Juror No. 11: My number , 7414.
“The Court: 7414?
“Prospective Juror No. 11: Yes, I live in La Puenta. I
am married. I have two children.
“The Court: Two?
“Prospective Juror No. 11: Yes.
“The Court: What do you do?
“Prospective Juror No. 11: My oldest son just finished
college.
“The Court: What do you do?
“Prospective Juror No. 11: House wife.
“The Court: What does your husband do?
“Prospective Juror No. 11: He retired.
“The Court: From what? What did he do?
“Prospective Juror No. 11: My husband, he retired. He
first had the restaurant.
“The Court: I am sorry. [¶] Restaurant, I am sorry.
[¶] Thank you. [¶] So your husband worked at the
restaurant?
8
“Prospective Juror No. 11: Yes, before he retired.
“The Court: Before he retired?
“Prospective Juror No. 11: Yeah, yeah.
“The Court: You have two children?
“Prospective Juror No. 11: Yeah.
“The Court: How old?
“Prospective Juror No. 11: One, 23, and older one.
“The Court: What does the older one do?
“Prospective Juror No. 11: Finish college.
“The Court: Studying what? What does that child
want to be?
“Prospective Juror No. 11: I don’t know.
“The Court: What did she go to school for?
“Prospective Juror No. 11: Law office.
“The Court: What did she study? [¶] What does she
want to be?
“Prospective Juror No. 11: I don’t know how to tell.
“The Court: She went to school?
“Prospective Juror No. 11: Yeah.
“The Court: What did she learn?
“Prospective Juror No. 11: My older one, she finished
the school.
“The Court: Okay. [¶] Does she want to be a doctor, a
lawyer, an architect, engineer, a dancer?
“Prospective Juror No. 11: Like health or something,
health with the doctor.
“The Court: Okay. [¶] Next child?
“Prospective Juror No. 11: High school.
9
“The Court: Okay. [¶] Have you ever worked outside
of the home?
“Prospective Juror No. 11: Yes.
“The Court: Where?
“Prospective Juror No. 11: Before I worked the
restaurant.
“The Court: Yes.
“Prospective Juror No. 11: Now they are selling the
restaurant.
“The Court: That is why you are back at home?
“Prospective Juror No. 11: Yeah, back at the home.
“The Court: Thank you very much. [¶] Have you
served on a jury?
“Prospective Juror No. 11: Yes.
“The Court: You have?
“Prospective Juror No. 11: Yeah.
“The Court: Was it criminal or civil? [¶] Did you come
to jury service before?
“Prospective Juror No. 11: Yeah.
“The Court: How long ago?
“Prospective Juror No. 11: Maybe 2 years ago.
“The Court: Okay. Thank you.”
Juror No. 7
Later, the court questioned Juror No. 7, who was then
seated as Prospective Juror No. 15:
“The Court: . . . Okay. Juror Number 15.
10
“Prospective Juror No. 15: My number is 3050.
“The Court: 3050?
“Prospective Juror No. 15: Yeah.
“The Court: Okay. What part of the city?
“Prospective Juror No. 15: L.A.
“The Court: What part of L.A?
“Prospective Juror No. 15: It’s west L.A.
“The Court: Okay. [¶] Are you married, single?
“Prospective Juror No. 15: I am married.
“The Court: Okay.
“Prospective Juror No. 15: I work. My job is
housekeeper.
“The Court: Okay.
“Prospective Juror No. 15: And I have two sons.
“The Court: What does your husband do?
“Prospective Juror No. 15: He is retired now.
“The Court: From what?
“Prospective Juror No. 15: He was working in painting
and in finishing.
“The Court: Painting and finishing?
“Prospective Juror No. 15: Yeah.
“The Court: Is that painting and finishing for homes or
for cars or for what?
“Prospective Juror No. 15: For one company.
“The Court: But what did the company do cars, homes
or what?
“Prospective Juror No. 15: Furniture.
11
“The Court: Furniture okay. [¶] The first son, what
does that son do?
“Prospective Juror No. 15: He’s a social worker.
“The Court: Does he work for Los Angeles County?
“Prospective Juror No. 15: Yes.
“The Court: Does he work for adult social worker or
children’s social worker?
“Prospective Juror No. 15: I think it is in the high
school social worker.
“The Court: Do you know if he goes to court?
“Prospective Juror No. 15: Yes.
“The Court: Does he ever go to court because of work?
“Prospective Juror No. 15: Yes.
“The Court: You know that?
“Prospective Juror No. 15: (Nodding in the
affirmative.)
“The Court: Has he talked to you about that?
“Prospective Juror No. 15: Yeah.
“The Court: Has he told you that he’s ever come to
court to take the stand and talk to the judge and tell the
judge what happened?
“Prospective Juror No. 15: I think so, yes, he -- yes.
“The Court: The next son, what does the next son do?
“Prospective Juror No. 15: The same, the social work.
“The Court: Okay. [¶] Have you ever served on a
jury?
“Prospective Juror No. 15: Yeah, yes.
“The Court: Was it civil or criminal?
12
“Prospective Juror No. 15: Criminal.
“The Court: Did you arrive at a verdict or no verdict?
“Prospective Juror No. 15: No verdict.
“The Court: Did you come to a decision or not?
“Prospective Juror No. 15: Not only -- coming only two
days.
“The Court: And they dismissed you?
“Prospective Juror No. 15: Yes.
“The Court: Yes?
“Prospective Juror No. 15: Yes.
“The Court: Thank you.”
Juror No. 6
The court queried Juror No 6., who was seated as
Prospective Juror No. 17:
“The Court: . . . Juror number 17.
“Prospective Juror No. 17: My number is 1557.
“The Court: Okay.
“Prospective Juror No. 17: I live in Huntington Park,
and I am single. My occupation is house work.
“The Court: Are there any other people living in your
home?
“Prospective Juror No. 17: Yes.
“The Court: How many?
“Prospective Juror No. 17: My mother.
“The Court: What does mother do?
13
“Prospective Juror No. 17: She helps me sometimes do
the house.
“The Court: She helps with other houses or your
house?
“Prospective Juror No. 17: My house.
“The Court: Okay. [¶] Do you have any adult
children?
“Prospective Juror No. 17: No.
“The Court: Have you ever served on a jury? Have you
ever done this before?
“Prospective Juror No. 17: No, never.
“The Court: Thank you.”
Neither the prosecutor, nor Osby, who was
representing himself during voir dire,6 challenged
Prospective Juror No. 15, who was ultimately seated on the
jury as Juror No. 7; nor did either party challenge the
prospective jurors who were ultimately seated as Juror No. 6
and Juror No. 11.
The Court’s Initial Examination of Jurors No. 6,
7, and 11
Following the first morning of presentation of evidence,
the court dismissed the jury for a lunch recess, with the
6 Osby continued to represent himself through a
portion of the trial, but was eventually replaced by stand by
counsel. Stand by counsel was present in court during voir
dire and during the period when Osby represented himself.
14
exception of Jurors No. 6, 7, and 11. The prosecutor
remained in the courtroom, but Osby appears not to have
been present.7 The court then examined the jurors.8
“The Court: Jurors Number 6, 7 and 11. [¶] Juror
Number 7, are you understanding? [¶] Look at me.
“Juror No. 7: Yes, she tell me to stay here.
“The Court: Are you understanding what is going on?
“Juror No. 7: No, not exactly that you say. As me no
speaking English very well. Something I no understand
well.
“The Court: You said that perfectly well. [¶] Juror
Number 11, are you understanding?
“Juror No. 11: No, not much.
7 The record indicates that the other jurors left the
courtroom, but it does not specifically state whether one or
both of the parties remained. However, it can be inferred
from later discussions that the prosecutor was present, but
Osby was not.
8 The trial court did not reveal what prompted it to
examine the jurors, but later stated that the court had
confidence that if Juror No. 7 were concerned about her
ability to understand English, she would bring it to the
court’s attention “as she has in the past.” We deduce from
this statement that it is likely the jurors raised concerns
with the court regarding their competence to serve as jurors
due to their difficulties understanding the language, and
that this prompted the court’s examination of them. At a
minimum, Juror No. 7 raised her concerns at some point in
the proceedings.
15
“The Court: What have you understood?
“Juror No. 11: It’s always basic.
“The Court: Why are we here?
“Juror No. 11: (No audible response)
“The Court: Juror Number 6?
“Juror No. 6: Sometimes I can not understand that
word or words.
“The Court: But you understand what is going on here,
right?
“Juror No. 6: A little.
“The Court: Do you understand why you are here?
“Juror No. 6: Yes, because I don’t know how to say.
“The Court: But you understand why you are here?
“Juror No. 6: Yes.
“The Court: Okay. Thank you.”
The court then released Jurors No. 6, 7, and 11 for the
lunch recess.
Hearing on the Jurors’ Competency and Second
Examination of Jurors No. 6, 7, and 11
Following the lunch recess, the court discussed its
concerns with the parties outside the presence of the jury:
“The Court: Mr. Osby, there’s an issue with regards to
three jurors having trouble understanding English. [¶] The
court inquired of Juror Number 11 who indicates that she
doesn’t speak English. Juror Number 7 who says she
understands some, and explained to the court that she was
16
having trouble and said that pretty well, and Juror Number
6 said she’s following along with difficulty. [¶] Do you wish
to be heard?
“[Osby]: Yes, ma’am. [¶] I move to have the jury
excluded and a new panel installed because too much
evidence has already been heard. That issue should have
been raised from the beginning.
“The Court: The People wish to be heard?
“[Prosecutor]: So just to be clear, I think that what the
defendant is doing is making a motion for mistrial.
“My position would be that certainly there is -- I
believe Juror Number 7, the court made a dutiful inquiry
and received good and responsive answers to the court’s
questions that would convince -- that I think is convincing
that the juror understands sufficiently what is happening in
the courtroom to be able to participate on the jury.
“Juror Number 6 affirmed that she was following along
with some difficulty. She perhaps was not as strong as Juror
Number 7 in terms of her comprehension level, but she
stopped short of saying she didn’t understand what was
going on in these proceedings.
“Juror Number 11 presents really the toughest
challenge for the court because Juror Number 11 has now
repeatedly asserted that she doesn’t speak English and
seems to be struggling when asked direct questions.[9]
9 The record does not indicate how or when the juror
communicated this concern “repeatedly” to the court, let
alone how her communication was relayed to the prosecutor.
17
“So I think of the three, I suppose that would be the
one that -- the only one that I think really presents a serious
question based on the information that has been provided
thus far.
“As far as if it were to be construed for a motion for
mistrial, I don’t think there’s any reversible harm or error
that has been done to the defendant at this point.
“If there is a question about a juror, the court has, I
believe three alternates who are available.
[¶] . . . [¶]
“The Court: Okay. [¶] Anything else?
“[Prosecutor]: No, thank you.
“The Court: Thank you. [¶] Your request for mistrial
is denied.
“[Osby]: Your Honor, I feel that the defense has a right
to speak on the issue in rebuttal to what the prosecution is
stating, Your Honor.
“The Court: No, you don’t. [¶] I’ve heard your
argument. I’ve heard your position. I don’t need to hear any
more. The court is going to release Juror Number 11. The
court is going to keep jurors --
“[Osby]: The court --
“The Court: Don’t speak over me, Mr. Osby.
“[Osby]: (Inaudible response)
“The Court: Juror Number 11 will be excused. . . .
“[Osby]: You allowed the District Attorney to assess
the collateral damage.”
18
The court did not respond to Osby. The court
continued its ruling, stating that it would excuse Juror No.
11 and seat Alternate No. 1 in that juror’s place.
“[Osby]: I would like to object. [¶] The prosecution is
speaking of a hearing the defense is not present at.
“The Court: Bring in Jurors 6, 7 and 11, please.
“[Osby]: I am asking, was that hearing done?
“The Court: I am going to do that with you now.”
The court advised Osby that he was not to speak unless
the court asked him to. Osby argued with the court, and the
court responded that if he continued to argue the court
would revoke his pro per status. The court then questioned
each of the three jurors separately.
“The Court: Juror Number 7, Juror Number 7, do you
understand the proceedings that we are in? [¶] Look at me.
“Juror No. 7: No very well, but --
“The Court: But you keep talking to me in English
perfectly well. [¶] Are you understanding what the
witnesses are saying?
“Juror No. 7: Yeah, sometime I no understand things,
but I will try.
“The Court: Thank you. [¶] Wait outside. [¶] Juror
Number 6, are you understanding the proceedings?
“Juror No. 6: Sometimes I don’t understand some
words.
“The Court: Okay. [¶] That is all right. Some words,
I understand that, but you understand what the witnesses
are talking about?
19
“Juror No. 6: Yes.
“The Court: Okay. Thank you. [¶] Wait outside. [¶]
Juror Number 11, are you understanding the proceedings?
“Juror No. 11: I not 100 percent understand, only 20
percent.
“The Court: 20 percent?
“Juror No. 11: I don’t remember, yeah.
“The Court: Are you understanding what the
witnesses are saying?
“Juror No. 11: No.
“The Court: Okay. Thank you. [¶] Wait outside.
“Jurors 6, 7 and 11 have been present before the court.
“It is this court’s opinion that Juror Number 6 does
understand --
“I am sorry, Juror Number 7 does understand. She
speaks well. Her English, I think it is just a standard
dilemma of some words that are not being captured, but that
would happen in everyday language as well.
“Juror Number 7 is similar --
“Strike that, Juror Number 6 is similar to Juror
Number 7, and they seem to understand why they are here.
Maybe they will miss a few words every now and then, but
that would happen in ordinary language as well, and I think
we have to be just a little bit louder so they can hear better.
“Further, Juror Number 11 is the one causing the court
concern about understanding proceedings.”
The court asked if the parties wished to be heard. The
prosecutor submitted. Osby stated, “The defense objects and
20
moves for mistrial.” The court denied the motion for
mistrial, excused Juror No. 11, and substituted Alternate
No. 1 in Juror No. 11’s place.
Defense Counsel’s Objection to Juror No. 7
Shortly after the prosecution completed its case-in-
chief, the trial court revoked Osby’s pro per privileges and
appointed standby counsel to represent him.
After the court instructed the jury, defense counsel
raised concerns regarding Juror No. 7’s English proficiency:
“[Defense Counsel:] . . . Juror Number 7, when the
court was talking, she’s trying, she’s so trying to understand.
“Your honor, I still don’t believe that even with the
court’s inquiry of Juror Number 7 and what her replies, that
she is able, and the court knows the law, it says that if a
juror is unable to perform their duties, should be substituted
in for an alternate juror.
“I just don’t think she still can understand, and I saw
her listening to the court when the court was talking about
who has the burden.
“Her expressions and the way she was hanging or
trying to hang on the court’s words, seemed to me that she
couldn’t understand, and I will submit.
“The Court: [Prosecutor.]
“[Prosecutor]: Well, she does have a habit of sort of
squirreling up her face and looking baffled and confused, but
every time the court has inquired of her, she has handled
21
herself pretty well in the conversation, and I suspect that
whatever her comprehension level is, it is probably sufficient
that when she’s allowed to have the give and take of
discussing this -- the case with her fellow jurors, my guess is
that we’ll be able to address whatever level of
misunderstanding or lack of understanding that she may
have as to particular words that may be used or particular --
“I mean, here’s the problem we have, I mean, our
typical juror does not have -- does not necessarily have a
college degree or a vocabulary that would allow them to
understand all the words that are used in the jury
instructions, and even those that have college degrees and
have some understanding of advanced grammar struggle
with the concept of reasonable doubt because it is something
that everyone struggles with to one degree or another.
“So I guess it’s all a long-winded way, and I apologize
for that, of just saying I am not sure we have a basis for us
substituting her out.
“The Court: Just so the record is also clear, her
telephone went off earlier, her cell phone, and I indicated to
her, ‘Did you turn it off?’
“She said, ‘Yes, I did.’
“She understood that perfectly clearly,[10] and I think it
is just the daily language that she does understand, and that
10 The conversation to which the trial court was
referring took place during defense counsel’s direct
examination of Menjivar, and consisted entirely of the
following:
22
is why we give them the instructions in the back when they
deliberate.
“The true test will be in deliberations and if the
foreperson takes this job as appropriately, they will advise
us, and I am sure that she will probably speak up if she feels
she’s not capable as she has in the past.”11
Legal Principles
Pursuant to section 1089, a trial court may discharge a
juror at any time during trial if the court finds that the juror
is “unable to perform his or her duty.” “‘Insufficient
command of the English language to allow full
understanding of the words employed in instructions and
full participation in deliberations clearly . . . render[s] a
“The Court: Just one second. [¶] Juror Number 7, did
you turn it off? [¶] “The Juror 7: Yes.”
11 The court had previously advised the jury that “[t]he
foreperson should see to it that your discussions are carried
on in an organized way and that everyone has a fair chance
to be heard. [¶] It is your duty to talk with one another and
deliberate in the jury room.” “If you need to communicate
with me while you are deliberating, send a note through the
bailiff, signed by the foreperson or by one or more members
of the jury.” The court did not amplify the instruction or
address the jury regarding the procedure to follow if a juror
had concerns about that juror’s own ability to understand
the English language proceedings or about a fellow juror’s
ability.
23
juror “unable to perform his duty” within the meaning of
Penal Code section 1089.’” (People v. Lomax (2010) 49
Cal.4th 530, 566 (Lomax), quoting People v. Elam (2001) 91
Cal.App.4th 298, 316; Code Civ. Proc., § 203, subd. (a)(6) [to
be eligible and qualified to serve as juror, a person must be
“possessed of sufficient knowledge of the English
language”].) “Limiting jury service to those who are
‘possessed of sufficient knowledge of the English language’
[citation] . . . serves ‘a significant state interest’ [citation] in
ensuring the uniform and efficient administration of the
justice system and avoiding possible translation distortions.”
(People v. Eubanks (2011) 53 Cal.4th 110, 131.)
“‘The decision whether to investigate the possibility of
juror . . . incompetence . . . rests within the sound discretion
of the trial court. [Citation.] . . . [¶] As our cases make
clear, a hearing is required only where the court possesses
information which, if proven to be true, would constitute
“good cause” to doubt a juror’s ability to perform his duties
and would justify his removal from the case. [Citation.]’
(People v. Ray (1996) 13 Cal.4th 313, 343.)” (People v.
Cleveland (2001) 25 Cal.4th 466, 478 (Cleveland).) “Once the
court is alerted to the possibility that a juror cannot properly
perform his duty . . . it is obligated to make reasonable
inquiry into the factual explanation for that possibility.”
(People v. McNeal (1979) 90 Cal.App.3d 830, 838 (McNeal).)
We review for abuse of discretion a trial court’s ruling
whether to discharge a juror for good cause under section
1089. (People v. Guerra (2006) 37 Cal.4th 1067, 1158
24
(Guerra), overruled on another ground in People v. Rundle
(2008) 43 Cal.4th 76, 151.) However, “such review involves a
‘heightened standard [that] more fully reflects an appellate
court’s obligation to protect a defendant’s fundamental
rights to due process and to a fair trial by an unbiased jury.’”
(People v. Armstrong (2016) 1 Cal.5th 432, 450 (Armstrong),
quoting People v. Barnwell (2007) 41 Cal.4th 1038, 1052
(Barnwell).) “Specifically, the juror’s ‘inability to perform’
his or her duty ‘must appear in the record as a demonstrable
reality.’ [Citations.]” (Armstrong, supra, at p. 450.)
“Under the demonstrable reality standard, a reviewing
court’s task is more ‘than simply determining whether any
substantial evidence in the record supports the trial court’s
decision.’ (People v. Lomax[, supra,] 49 Cal.4th [at p.] 589.)
‘A substantial evidence inquiry examines the record in the
light most favorable to the judgment and upholds it if the
record contains reasonable, credible evidence of solid value
upon which a reasonable trier of fact could have relied in
reaching the conclusion in question. Once such evidence is
found, the substantial evidence test is satisfied. . . . [¶] The
demonstrable reality test entails a more comprehensive and
less deferential review. It requires a showing that the court
as trier of fact did rely on evidence that, in light of the entire
record, supports its conclusion that [good cause for removing
the juror is] established. It is important to make clear that a
reviewing court does not reweigh the evidence under either
test. Under the demonstrable reality standard, however, the
reviewing court must be confident that the trial court’s
25
conclusion is manifestly supported by evidence on which the
court actually relied. [¶] In reaching that conclusion, the
reviewing panel will consider not just the evidence itself, but
also the record of reasons the court provides.’ (Barnwell,
supra, 41 Cal.4th at pp. 1052–1053, citation omitted.)”
(Armstrong, supra, 1 Cal.5th at pp. 450–451.)
“‘If a juror’s responses are conflicting or equivocal, the
trial court’s ruling is binding on us. [Citations.] If not, we
will uphold the trial court if the ruling is fairly supported by
substantial evidence in the record, giving deference to the
trial court which had the opportunity to observe and listen to
the juror. [Citations.]’ (People v. Holt (1997) 15 Cal.4th 619,
651.)” (Lomax, supra, 49 Cal.4th at p. 567.)
Analysis
The Trial Court Abused its Discretion by Failing
to Make a Reasonable Inquiry into Juror No. 7’s
Competency
Here, the trial court determined Jurors No. 6, 7, and 11
demonstrated potential language problems not revealed
during voir dire, which, if proven to be true, would constitute
good cause to doubt their abilities to perform their duties
and would justify their removal. Having been alerted to the
possibility that the jurors may not have been capable of
discharging their duties, the trial court was obligated to
“make reasonable inquiry into the factual explanation for
26
that possibility.”12 (McNeal, supra, 90 Cal.App.3d at p. 838.)
Although the trial court examined Juror No. 7 regarding her
English competency, that examination was far from what we
would deem a “reasonable inquiry” under the circumstances.
In the court’s first examination, the court asked Juror No. 7
two vague questions: “[A]re you understanding?” and “Are
you understanding what is going on?” Juror No. 7’s response
that she was told to “stay” suggests that she believed the
court was asking if she understood what was happening at
that moment (i.e., why she and two fellow jurors were held
into the lunch recess to talk with the judge), and not if she
understood the trial proceedings and witness testimony.
When the court pressed further, Juror No. 7 admitted in
broken English, “No, not exactly that you say. As me no
speaking English very well. Something I no understand
well.” The only facts this examination revealed were that
Juror No. 7 did not understand what the trial court was
asking her, and did not believe that she understood English
well.
12 We do not suggest that a hearing is required every
time a juror expresses concern regarding their English
language proficiency. (See Cleveland, supra, 25 Cal.4th at
p. 478 [a hearing is only required if good cause exists to
justify a juror’s removal from the case].) We understand
that there are occasions in which a juror will exaggerate a
lack of comprehension to evade jury service. A trial court
that is confident in a juror’s ability to understand English
based on his or her responses to questioning and/or
demeanor in voir dire may forego further inquiry.
27
After Osby complained that he had not been present
when Juror No. 7 was examined, the trial court examined
Juror No. 7 a second time and asked another two questions.
This time the court was more precise—“[D]o you understand
the proceedings that we are in?” “Are you understanding
what the witnesses are saying?” Juror No. 7’s responses
were still not reassuring, however. With respect to her
understanding of the proceedings, she indicated her
understanding was “[n]o very well, but--” With respect to
whether she understood the witnesses she said, “[y]eah,
sometime I no understand things, but I will try.”
We are cognizant that “[t]he trial court retains
discretion about what procedures to employ, including
conducting a hearing or detailed inquiry, when determining
whether to discharge a juror.” (Guerra, supra, 37 Cal.4th at
p. 1159.) Here, however, it is clear on the face of the record
that the trial court’s efforts to ascertain whether Juror No. 7
understood the proceedings and testimony were minimal and
ineffective. The court failed to ask even the most basic
questions that would have allowed it to satisfactorily assess
Juror No. 7’s English proficiency. The court did not ask how
long Juror No. 7 had been speaking English, if she had any
education in English, if she could read English, or how much
exposure she had to English on a daily basis, in her home,
work, or elsewhere. The court did not inquire as to whether
Juror No. 7 believed that she could faithfully discharge her
duties as a juror.
28
By listing these examples, we do not mean to imply
that a trial court must ask a certain number of questions or
even a specific question. An inquiry need not be extended or
exhaustive, but it must shed enough light on the issue before
the court to provide a basis for the court’s ruling. The record
developed by the court’s inquiry here does not support the
court’s decision to allow Juror No. 7 to continue. Instead,
the record shows that, after listening to the morning’s
testimony, Juror No. 7 was concerned about her lack of
proficiency in English. Despite the concern, the court
inquired of her only to the point where Juror No. 7 stated
she would “try,” indicating she would make an effort to
understand, not that she could understand the proceedings.
Beyond the unsatisfactory answers given by the juror, the
trial court did not develop or note any evidence on the record
about Juror No. 7’s demeanor, from which English language
proficiency could be inferred.
The inadequacy of the trial court’s inquiry became even
more apparent when Osby’s counsel again raised the issue of
Juror No. 7’s English language proficiency at the time the
court was instructing the jury. By that point in the trial,
both parties noted that the juror’s demeanor suggested
language difficulties (defense counsel commenting that
“[h]er expressions and the way she was hanging or trying to
hang on the court’s words, seemed to me that she couldn’t
understand,” and the prosecutor observing, “she does have a
habit of sort of squirreling up her face and looking baffled
and confused”). The prosecutor even suggested that any lack
29
of understanding would be remedied by interacting with
other jurors in deliberations. Notably, the trial court did not
mention or rely on its prior inquiries of Juror No. 7 as
establishing the juror’s proficiency; rather, the trial court
expressed the belief that the “true test” of Juror No. 7’s
competency would come during the jury’s deliberations. We
view the court’s statement that it would learn of any
language deficiencies that Juror No. 7 might have from the
juror or the foreperson during deliberations as an implicit
acknowledgement that the court’s prior inquiry into the
juror’s understanding was inconclusive, at best.
Responsibility for inquiring into potential juror
incompetence lies with the court, and cannot be delegated to
members of the jury. The court’s failure to conduct a
reasonable inquiry into the extent of Juror No. 7’s English
proficiency when faced with the clear possibility that Juror
No. 7 might not be competent to fulfill her duty was an
abuse of discretion.
“An evaluation of whether the error was prejudicial
must have as its foundation the defendant’s right to a jury
trial by a fair and impartial jury, as provided by the
California Constitution, article I, section 16.” (McNeal,
supra, 90 Cal.App.3d at p. 840.) In McNeal, the Court of
Appeal, First District, Division Three held that “where the
fact a of sworn juror’s impartiality comes into question as a
result of that juror’s conduct or statements during the course
of the trial or the deliberations, the failure of the court to
make at least a preliminary inquiry into the facts of such
30
impartiality cannot be said to be error harmless beyond a
reasonable doubt.” (Ibid.) In this case, there has been no
showing of impartiality or bias, but our case law is clear that
an insufficient command of the English language to allow a
juror to fully understand instructions and participate clearly
in deliberations renders that juror equally unsuitable to
serve. The trial court recognized there was a possibility that
Juror No. 7 could be incompetent and conducted two
examinations of her. Those examinations did not produce a
satisfactory record for the trial court to determine whether
Juror No. 7’s understanding of English was sufficient. In
such a case, as when a juror’s impartiality comes into
question, “the court’s failure to make an appropriate inquiry
into the facts in order to determine whether they constituted
good cause for discharge of the juror constitutes reversible
error.” (Ibid.)
The Trial Court Abused its Discretion When It
Determined that Juror No. 7 Had Sufficient
Command of English to Serve as a Juror
Even assuming that the inadequacy of the trial court’s
investigation does not constitute grounds for reversal, we
nevertheless conclude that the trial court’s decision to retain
Juror No. 7 based upon the information before it was an
abuse of discretion. The trial court’s reasoning is sparse.
When the court denied Osby’s objection and motion for
mistrial, it said of Juror No. 7: “Juror Number 7 does
31
understand. She speaks well. Her English, I think it is just
a standard dilemma of some words that are not being
captured, but that would happen in everyday language as
well.” The trial court did not state specifically what she
thought Juror No. 7 said well, but from her earlier
comments—“[y]ou said that perfectly well” and “you keep
talking to me in English perfectly well”—we can only
surmise that the court was referring to Juror No. 7’s
statements during the two examinations, in which the juror
explained, in broken English, that she did not fully
understand what was going on. (“[M]e no speaking English
very well. Something I no understand well.” “No very well
. . . .”) The court added that Jurors No. 6 and 7 “seem to
understand why they are here.” The basis for this
conclusion is also unclear.
Later, when defense counsel moved to have Juror No. 7
removed due to his concerns that she did not comprehend
the proceedings, the court again declined. At that time, the
court noted that, after Juror No. 7’s cell phone rang in open
court and the court asked if she turned it off, Juror No. 7
responded “yes.” The court observed that “[s]he understood
that perfectly clearly.”
The court opined that the juror understood only “daily
language,” but that any problems would be remedied by
providing the jurors with written instructions. The court
then placed the burden of raising any future concerns
regarding the Juror No. 7’s competency on Juror No. 7 and
the foreperson (who were never alerted that this
32
responsibility rested with them), stating that whether one of
them spoke up would be “the true test” of Juror No. 7’s
English proficiency.
Heeding the “heightened standard[, which] . . . reflects
[our] obligation to protect a defendant’s fundamental rights
to due process and to a fair trial” (Barnwell, supra, 41
Cal.4th at p. 1052), we are not “confident that the trial
court’s conclusion is manifestly supported by evidence on
which the court actually relied” (Id. at p. 1053). Juror No. 7
did not speak “perfectly well” when questioned, and, more
importantly, she expressed repeatedly that she did not fully
understand the proceedings that she had just observed.
We cannot conclude that Juror No. 7’s ability to
respond “yes” after being asked if she turned her cell phone
off is substantial evidence that she had sufficient
understanding of English to comprehend instructions and
participate in deliberations. In the context of having just
silenced her phone after it interrupted proceedings, it did not
take more than a minimal understanding of English to
recognize that when the court identified her by her juror
number (as it had many times), and uttered the word “off,”
she should respond “yes.”
With respect to the court’s comment that Juror No. 7
seemed to know why she was in court, we fail to see the
relevance. The court summons that Juror No. 7 received
would have indicated the purpose of her coming to court, and
could have been translated for her. She was not limited in
the resources she could employ to translate the summons,
33
whereas she would only be permitted to use her own
knowledge of English to understand witness testimony,
instructions, and deliberations. A general awareness of why
she was present in court was not necessarily indicative of
her level of understanding of English or the specific
proceedings.
On appeal, the People rely heavily on Juror No. 7’s
statements in voir dire, but neither of the parties argued to
the trial court that her voir dire responses were a basis for
retaining or excusing her, and the trial court did not rely on
those statements in determining to retain Juror No. 7. Voir
dire was complete when the language problems of the three
empaneled jurors first surfaced and were brought to the trial
court’s attention. The fact that the trial court never
mentioned or relied on its conversations with these jurors in
voir dire to establish their proficiency indicates that the
court did not believe that voir dire adequately explored the
potential problem of Juror No. 7’s inability to fully
understand the trial testimony and instructions. We find it
significant that Juror No. 11 had also completed voir dire
without challenges, but the trial court nevertheless
determined mid-trial that she was not competent to continue
serving given her responses in the court’s two later
examinations, which were very similar to Juror No. 7’s
responses.
Even considering the trial court’s ruling in light of the
record as a whole, voir dire did not illuminate the problem,
nor did it contradict Juror No. 7’s assertion that she did not
34
understand English well. The People argue that in voir dire
Juror No. 7 “was able to answer all the court’s questions
with no problem and indicated that she had served on jury in
a criminal case that did not reach a verdict.” This
characterization does not paint the full picture. In voir dire,
Juror No. 7 was asked only basic questions about herself and
her family, the vast majority of which were questions that
one would expect to find in the front pages of a basic English
phrase book. The trial court posed these same questions to
the 14 prospective jurors it queried before questioning Juror
No. 7, who was then seated as Prospective Juror No. 15.
Juror No. 7 therefore had the benefit of listening to the
questions and answers over and over before she was
questioned herself. Despite this, Juror No. 7 did not always
understand the questions the court posed to her, until the
court rephrased them for her. For example, when the court
asked what part of the city Juror No. 7 lived in, she first
answered “L.A.” despite the fact that the court had
instructed that it wanted to know which neighborhood each
of the jurors lived in, and the jurors questioned ahead of
Juror No. 7 had answered this question appropriately.
When asked if she had served on a jury, Juror No. 7
indicated that she was “coming only two days,” it was
“criminal” and there was “no verdict.” She did not state that
she had been chosen to serve on the jury or that she had
participated in voir dire, as the People imply. The court had
advised the jury that “[c]oming to court is serving.” Juror
35
No. 11, who the court excused, had also indicated that she
had “served” on a jury, “maybe 2 years ago.”
Viewing the record as a whole, and considering in
particular the reasons for the trial court’s ruling, we
conclude that Juror No. 7’s inability to perform appears as a
demonstrable reality, and the trial court’s determination to
retain Juror No. 7 was an abuse of discretion. The trial
court did not state reasons for its ruling that are supported
by substantial evidence in the record, and absent such
reasons it is not appropriate to defer to the trial court’s
judgment. Juror No. 7 expressed significant concerns about
her ability multiple times. The trial court did not indicate
that it did not believe her statements, but instead held up
her responses in broken English as evidence that she could
understand the language sufficiently and “speak well.” The
court ultimately stated that it would rely on Juror No. 7 and
the foreperson to bring the issue to the court’s attention if
Juror No. 7 could not competently serve on the jury. This
was not a proper exercise of the trial court’s discretion.
Osby contends that the failure to discharge Juror No. 7
requires reversal of the judgment, citing to People v.
Szymanski (2003) 109 Cal.App.4th 1126 (Szymanski). In
Szymanski, a juror expressed concern during voir dire about
her ability to understand English. The juror, who was from
China, spoke mainly Chinese both at home and work and
responded to the court’s questions during voir dire in broken
English, often with “unintelligible” answers. (Id. at
pp. 1131–1132.) The defendant had already exhausted his
36
peremptory challenges, and the trial court refused the
requests of both the prosecutor and defense counsel to
excuse the juror for cause, reasoning that any language
difficulties could be resolved by allowing the juror to ask
questions if she did not understand something. The Court of
Appeal held that, under those circumstances, the trial
court’s refusal to dismiss the juror denied the defendant his
right to a qualified jury. (Id. at p. 1132.)
The People attempt to distinguish Szymanski on the
ground that here, neither Osby nor the prosecutor
challenged Juror No. 7’s inclusion in the jury at voir dire.
The People emphasize that in Szymanski, the appellate
court held that the defendant’s right to a qualified jury was
violated and reversal was required because the defendant
had exhausted all of his peremptory challenges and was left
without any recourse for the juror’s removal—he was
literally forced to accept a juror that the parties agreed was
incompetent.
We do not see the timing of Osby’s objection to keeping
Juror No. 7, which occurred after the completion of voir dire,
as leading to a different result. Osby, when self-represented,
and later his counsel, did all that they could to object to
Juror No. 7 remaining on the jury once the juror’s English
language proficiency appeared problematic.13 Osby was
13 It is of no significance that no further problems with
Juror No. 7’s language ability were raised during jury
deliberations, after trial court indicated that it expected
Juror No. 7 or the foreperson to bring problems to the court’s
37
effectively placed in the same position as Szymanski. He
was forced to accept a juror whose command of the English
language was not sufficient to permit her to fully
comprehend the testimony and instructions or to deliberate
with her fellow jurors, through no fault of Osby’s own or lack
of effort on his part.14 The error requires reversal.
attention. Even if Juror No. 7 did have concerns, she may
not have brought them to the court, given that she had
already been questioned twice and left on the jury, with the
court complimenting her English. Nor is there any reason to
think that the foreperson or other jurors would necessarily
identify that the juror was not understanding witnesses,
instructions, or deliberations; it is entirely plausible that the
juror quietly sided with her fellow jurors.
14 Although it is not a basis for our ruling, we note that
in this case, the stakes were quite high for Osby. The jury
was instructed on the lesser offense of petty theft in addition
to robbery. The difference between those two crimes rested
on whether Osby employed force or fear to take the toilet
paper. It was undisputed that he did not employ force or
fear when he initially took the toilet paper from the store
and rode away. The question for the jury was whether the
fight that occurred after Menjivar told Osby to give him the
toilet paper and Osby threw it on the ground constituted a
taking by force or fear. The difference is a subtle one,
requiring a full understanding of the testimony and the
instructions. Had the jury convicted Osby of petty theft he
would have been facing at most a sentence of a few years,
not life.
38
DISPOSITION
The judgment is reversed in its entirety. Retrial of the
case is not barred by the double jeopardy clauses of the state
and federal Constitutions. (See People v. Hernandez (2003)
30 Cal.4th 1, 6 [no double jeopardy bar to retrial of the case
where reversal based on court’s erroneous removal of juror
for bias]; Armstrong, supra, 1 Cal.5th at p. 454 [no double
jeopardy bar to retrial of the case where reversal based on
court’s erroneous removal of juror for failure to deliberate].)
MOOR, J.
I concur:
RUBIN, P. J.
39
The People v. David Osby
B299496
BAKER, J., Concurring
I agree we have no choice but to reverse the judgment,
though for a different reason than the one the majority gives.
When trial of defendant David Osby (defendant) first
began, his attorney expressed a doubt about his competence, the
proceedings were halted, defendant was evaluated, and the
evaluator concluded he was not competent to stand trial. The
trial court referred defendant for treatment at Metropolitan State
Hospital and, after weeks of treatment, hospital staff opined he
was competent to stand trial while taking psychotropic
medication.
Defendant was returned to court, and the trial court
restarted criminal proceedings. Defendant then asked to
represent himself and the trial court granted the request without
any further competence inquiry or expression of doubt about
whether he was competent to perform the task. That itself is a
problem. The hospital personnel rendered their competency
determination using the Dusky v. United States (1960) 362 U.S.
402 standard, namely, that defendant had a rational and factual
understanding of the criminal proceedings and a sufficient then-
existing ability to consult with counsel with a reasonable degree
of rational understanding. But competence to represent oneself
is measured by a different standard (Indiana v. Edwards (2008)
554 U.S. 164, 170, 174-175, 178), and there was no opinion
evidence from mental health professionals before the trial court
evaluating whether defendant suffered from severe mental
illness to the point where he would not be competent to conduct
trial proceedings by himself.
Once trial was underway, the problem—defendant’s
difficulties in competently conducting trial proceedings by
himself—only became more apparent and yet the trial court still
did not promptly declare a doubt about his competence to
represent himself. Instead, it was not until five days into trial
that the court revoked defendant’s self-represented status (for
interrupting and delaying the proceedings and aggressive
behavior); by then, the damage was already done. The failure to
declare a doubt about defendant’s competence to represent
himself is prejudicial error. (See People v. Murdoch (2011) 194
Cal.App.4th 230, 238-239; see also People v. Mendoza (2016) 62
Cal.4th 856, 884 [“‘[W]hen a competency hearing has already
been held and the defendant has been found competent . . . a trial
court need not suspend proceedings to conduct a second
competency hearing unless it “is presented with a substantial
change of circumstances or with new evidence” casting a serious
doubt on the validity of that finding’”], italics added.)
I would reverse and remand to permit the trial court to
determine, in the first instance, whether the People can make the
difficult and rare showing that a retrospective assessment of
defendant’s competence is possible (see, e.g., People v. Lightsey
(2012) 54 Cal.4th 668, 709-710) and, if not, for retrial—if
defendant is at that time competent.
BAKER, J.
2