Filed 6/16/22 P. v. Lewis CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159741
v.
IZELL LEWIS, (Marin County
Super. Ct. No. SC202156)
Defendant and Appellant.
Defendant Izell Lewis appeals after a jury found him guilty of rape. On
appeal, defendant argues the trial court erred by: (1) failing to hold a
competency hearing under Penal Code section 13681 when his mental
condition deteriorated after he stopped taking medication; (2) denying his
motion to dismiss pursuant to California v. Trombetta (1984) 467 U.S. 479
and Arizona v. Youngblood (1988) 488 U.S. 51 (Trombetta/Youngblood
motion); (3) admitting his pretrial police interview statements because he
was not properly advised of his rights under Miranda v. Arizona (1966) 384
U.S. 476 (Miranda); and (4) excluding a defense expert from testifying. He
also contends he is entitled to resentencing due to recent amendments to
section 1170. The People concede the trial court erred in failing to hold a
1 All further statutory references are to the Penal Code unless otherwise
indicated.
1
competency hearing. We agree and, on that ground, reverse the judgment
and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The first suspension of proceedings
In September 2017, defendant was charged by complaint with one
count of rape (§ 261, subd. (a)(2)). He initially appeared represented by a
private attorney, but by December 2017, he asked to be represented by the
public defender or to represent himself. The public defender accepted the
appointment but by January 2018, defendant made a Marsden motion (People
v. Marsden (1970) 2 Cal.3d 118 (Marsden)) for the appointment of substitute
counsel. The trial court denied the Marsden motion, but the public defender
declared a conflict, and so did the attorney appointed thereafter. Then in
March, defendant again sought new counsel. In April, he filed a Faretta
motion (Faretta v. California (1975) 422 U.S. 806 (Faretta)) to represent
himself. Defendant represented himself for about two weeks before
requesting counsel. Shortly after being appointed, defendant’s fifth attorney
declared a doubt as to defendant’s competency.
Defense counsel indicated at a hearing that defendant had been erratic
in making his Marsden and Faretta requests, and that three of defendant’s
prior attorneys had reported defendant’s inability to rationally assist or
cooperate during prior periods of representation. Counsel stated that
defendant’s reason for requesting an attorney seemed irrational. Moreover,
he did not seem to understand the elements of his offense and possible
defenses, and he was unable to cooperate or assist her in raising defenses.
Counsel noted defendant’s desire to testify at his preliminary hearing, but
said his reasons were “completely irrational.” She doubted he could
knowingly and intelligently waive his Fifth Amendment rights.
2
The trial court suspended proceedings and defendant, while waiting for
evaluations by doctors, continued to make Marsden and Faretta motions.
Defense counsel also moved to withdraw, citing an “absolute, irretrievable
breakdown in the attorney-client relationship.” In July 2018, the court
denied defendant’s motion for new counsel and defense counsel’s request to
withdraw.
On August 8, 2018, defense counsel again moved to withdraw. After a
closed hearing, the trial court granted that motion and appointed the sixth
defense attorney in this case, who ultimately represented defendant through
trial and sentencing. Before the end of August 2018, defendant started
refusing to attend hearings and again sought new counsel. On August 31,
2018, after considering Dr. Catherine Main’s report concluding that
defendant was competent, and psychiatrist Dr. Zachary Torry’s report which
was inconclusive as to defendant’s competency,2 the court found defendant
competent and reinstated proceedings.
Days before the scheduled preliminary examination in September 2018,
defendant again moved to represent himself and for new counsel. Both
motions were denied, with the court indicating its belief that defendant was
using the Marsden and Faretta procedures as a means of delaying the
2 Dr. Main’s report, dated June 2018, noted that defendant had initially
resisted accepting help from attorneys, but he appeared less paranoid during
their interview than earlier reports suggested, and she believed he could
understand the charges and the legal system in general, and had the ability
to assist his attorney in his own defense.
Defendant refused to meet with Dr. Torry, despite multiple attempts by
the deputy sheriffs to encourage defendant to leave his cell, so the doctor
could not assess defendant’s competency. Dr. Torry did state that
defendant’s refusal to meet and refusal to work with prior attorneys made
him concerned about defendant’s ability to cooperate with present counsel
and to maintain proper courtroom conduct.
3
proceedings. The court held defendant to answer to the rape charge at the
preliminary examination.
Throughout the remainder of his proceedings, defendant made
numerous additional Marsden and Faretta motions. He also refused to
attend court with enough regularity that the court issued an “extraction
order” for the sheriff to bring him to court using all reasonable force.
B. The second suspension of proceedings and competency trial
At a hearing on November 13, 2018, the day before jury selection was
set to begin, defense counsel expressed a doubt about defendant’s
competency. Defense counsel reported that defendant was being housed in a
“safety cell,” that he was “babbling” incoherently, and that Dr. Quezada, a
psychiatrist, had expressed a doubt about defendant’s competency. Defense
counsel believed that defendant had “steadily degenerated and gotten worse.”
On November 14, 2018, the trial court found there was no substantial
evidence of incompetency and concluded defendant was instead intentionally
manipulating the court’s processes to delay proceedings.
By November 26, 2018, defense counsel reiterated his doubt about
defendant’s competency and produced a report from psychiatrist Dr. Eugene
Schoenfeld, who concluded defendant was incompetent to stand trial. Dr.
Schoenfeld’s report noted that defendant believed various people—the judge,
his present lawyer and a prior lawyer, and one of his victims in another
case—were in “ ‘cahoots’ ” with each other; that defendant disagreed with
nearly everything his present counsel had done and threatened to hurt
counsel; and that defendant has bipolar disorder, but refused medication.
The trial court suspended proceedings pursuant to section 1368. The
court received evaluations from two doctors—Dr. Main and Dr. Torry—both
opining defendant was incompetent. Dr. Main’s report dated December 30,
4
2018 indicated that defendant refused medication to treat his psychosis, that
he lacked insight into his condition, and that he believed his attorney is part
of a “ ‘huge corrupt situation.’ ” Observing that defendant’s “paranoia is
pronounced, indicating symptoms identified with psychosis,” Dr. Main opined
that such paranoia rendered defendant incapable of participating in the court
process and assisting his attorney. Dr. Main also noted that defendant’s
mental health impacted his ability to reason and to comply with courtroom
decorum, and that medication would be necessary to reduce the severity of
his psychotic thought process.
Dr. Torry’s report dated December 27, 2018 indicated, among other
things, that defendant had “various persecutory beliefs” about his attorney
who he thought was “colluding with the prosecution.” Dr. Torry opined that
defendant likely has bipolar disorder with psychotic features or with a
superimposed paranoid personality disorder, and that the symptoms of his
mental illness—namely, his paranoid thought process, delusions, and
disorganized thoughts—impair his understanding of the criminal proceedings
and his ability to rationally assist counsel. Dr. Torry recommended that
defendant take medication to help restore his competency and that he
participate in didactic treatment to address his factual understanding of the
nature of the proceedings.
Pursuant to the trial court’s order, defendant was admitted to Napa
State Hospital for competency treatment on June 5, 2019. On June 18,
2019—less than two weeks later—Napa State Hospital filed a certification of
defendant’s mental competency. Accompanying the certification was a
clinical report authored by Napa State Hospital staff psychologist, Dr. Eric
5
Gonzalez,3 indicating that defendant was competent but would “likely need to
remain consistently compliant with psychotropic medications in order to
maintain his current level of psychiatric stability.” Defense counsel asked for
a trial as to defendant’s competency.
On August 23, 2019, the court held an evidentiary hearing concerning
defendant’s competency. The court admitted the certificate of competency
and Dr. Gonzalez’s accompanying report, and the aforementioned reports
from late 2018 by Drs. Schoenfeld, Torry, and Main. The court also admitted
Dr. Schoenfeld’s stipulated testimony that defendant is currently
incompetent as he refuses to meet with his attorney, but that defendant
would be competent if he continued to take the medication prescribed at
Napa State Hospital. A clinical psychologist from Napa State Hospital, Dr.
Dominique Remaker, testified that defendant was found competent at a time
when he was taking antipsychotic medication. Dr. Remaker said that
according to Dr. Thomas—the unit psychiatrist at the state hospital—
defendant would likely be incompetent if he stopped his medication.
Defendant testified. He indicated that since returning to jail, he
discontinued taking the antipsychotic medication previously given to him at
Napa State Hospital, stating: “Due to the recommendation of the jailhouse
psychiatrist and the side effects that the medication gave me, yes, very much
so. I do not take that medication at all.” He agreed to meet with defense
counsel if counsel “agree[d] to conduct himself like a professional.”
Defendant was able to articulate the roles of defense counsel and the trial
judge in the proceedings, and he stated that he understood the charges
against him.
3 The report indicates it was administratively reviewed by Medical
Director, Dr. Patricia Tyler, who was not then treating defendant.
6
The prosecutor argued that because there was a consensus in the
reports that defendant would remain competent if he were medication
compliant, the court should consider housing defendant at Napa State
Hospital pursuant to section 1372, subdivision (e), where staff could enforce
an order requiring defendant to take medication. In the alternative, the
prosecutor asked the court to find defendant competent based on the reports
and the court’s own observations.
The court ultimately found defendant competent and reinstated
proceedings, indicating the evidence showed that defendant understood the
nature and purpose of the proceedings and could assist his attorney, though
he chose not to do so for his own reasons. The court stated it observed
defendant on the stand and defendant was “coherent, direct, on point,
substantive, intelligent and, frankly, spot on in terms of who does what in the
courtroom.” The court declined to decide whether to order defendant housed
in a facility other than county jail pursuant to section 1372, subdivision (e).
C. The first trial and mistrial
The matter proceeded to trial in October 2019. On October 8, 2019,
during the first attempt at jury selection, defendant acted out in front of the
prospective jurors—e.g., he accused his attorney of being racist, yelled about
wanting to represent himself, and lunged toward his attorney—resulting in
the court dismissing the jury panel. Based on defendant’s behavior, defense
counsel renewed his request that the court find defendant incompetent,
noting defendant could not control his behavior and arguing he was
“manifestly” incompetent. The court declined to re-suspend proceedings. In
the court’s view, nothing suggested defendant was incompetent; rather,
defendant simply did not want to proceed to trial and did not want to assist
counsel.
7
A new panel of prospective jurors was brought in. But after some of the
jurors may have seen defendant as he was being pushed in a wheelchair
while barefoot, shackled, and wearing a gown, defendant cursed at the judge
and his attorney in the courtroom. He threatened to kill the judge and
violently rushed toward the bench despite being shackled with his hands to
his waist and at his feet. Defense counsel renewed his request that the court
find defendant incompetent citing defendant’s past and present behavior. In
declining the request, the court again perceived no information suggesting
incompetence and reiterated that defendant appeared to be engaging in delay
tactics or trying to get new counsel. Later during the same hearing, while
discussing whether defendant could be placed in a holding cell with a speaker
when trial began, defense counsel stated that he believed the trial should not
proceed until defendant could get “continually medicated” and “participate in
a rational manner.”
After further discussion, including with the bailiffs who expressed
safety concerns about bringing defendant to and keeping him in the holding
cell, the bailiffs reported that defendant refused to come to court. The court
elected to proceed with the trial, indicating defendant had voluntarily
absented himself, then proceeded with instructions, opening statements, and
receiving testimony. While defendant appeared at a subsequent trial date,
the first trial ended in a mistrial after several jurors were dismissed or
became unavailable.
D. The Second Trial
Defendant’s second trial took place in December 2019. Just before jury
selection began, defense counsel told the court his interactions with
defendant had been “incomprehensible,” and he reasserted his belief that
defendant was incompetent. Defense counsel explained: “I don’t think he
8
understands the procedure. I think he understands what the accusations
are, but I think, because of his mental condition, he is unable to manage
himself within the procedure in a way that effectively assists his counsel in
defense of this case.” Defense counsel presented nothing further. The court
responded that defendant had already been found competent, and expressed
its belief that the record did not support re-suspending proceedings.
The prosecution’s case against defendant included the testimony of the
alleged rape victim Jane Doe, a videotape of defendant’s pretrial police
interview, and defendant’s preliminary hearing testimony. The defense case,
in the main, centered on defendant’s testimony. Defendant testified on direct
examination without questioning by his attorney and by way of a narrative.
His narrative was interrupted by dozens of objections on grounds such as
irrelevance and for being argumentative. After hearing the evidence, the jury
found defendant guilty of rape. The trial court sentenced him to eight years
in prison. Defendant appealed.
DISCUSSION
A. Competency
Defendant contends the trial court erred in failing to hold a new
competency hearing when his mental condition deteriorated after he returned
from Napa State Hospital and stopped taking medication. He cites to People
v. Rodas (2018) 6 Cal.5th 219 (Rodas) in support. Although both parties
agree there was error, they dispute the applicable remedy. We discuss the
error and remedy below.
1. Failure to Hold New Competency Hearing
“[D]ue process forbids a court from trying or convicting a criminal
defendant who is mentally incompetent to stand trial.” (Rodas, supra, 6
Cal.5th at p. 230.) An individual is incompetent to stand trial “if, as a result
9
of a mental health 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);
People v. Wycoff (2021) 12 Cal.5th 58, 81–82 (Wycoff).)
“[A]n accused has the right ‘to a hearing on present sanity if he comes
forward with substantial evidence that he is incapable, because of mental
illness, of understanding the nature of the proceedings against him or of
assisting in his defense.’ ” (Rodas, supra, 6 Cal.5th at p. 231.) “[S]ubstantial
evidence for this purpose is evidence ‘that raises a reasonable or bona fide
doubt’ as to competence, and the duty to conduct a competency hearing ‘may
arise at any time prior to judgment.’ ” (Ibid., italics added.) “The word
‘substantial’ does not mean that for a doubt to arise, there must be a large
quantity of evidence of a defendant’s incompetence; rather, it means that
there must be some evidence of sufficient substance that it cannot be
dismissed as being inherently unpersuasive.” (Wycoff, supra, 12 Cal.5th at
p. 83.) “ ‘ “Once such substantial evidence appears, a doubt as to the sanity of
the accused exists, no matter how persuasive other evidence . . . may be to
the contrary.” ’ ” (Id. at p. 82, italics omitted.) If such a doubt exists, “all
criminal proceedings are to be suspended until the competence question has
been determined.” (Rodas, at p. 231.)
“As a general rule, once a defendant has been found competent to stand
trial, a trial court may rely on that finding absent a substantial change of
circumstances. But when a formerly incompetent defendant has been
restored to competence solely or primarily through administration of
medication, evidence that the defendant is no longer taking his medication
and is again exhibiting signs of incompetence will generally establish such a
change in circumstances and will call for additional, formal investigation
10
before trial may proceed. In the face of such evidence, a trial court’s failure to
suspend proceedings violates the constitutional guarantee of due process in
criminal trials.” (Rodas, supra, 6 Cal.5th at p. 223.)
In Rodas, the defendant was found incompetent and committed to the
Department of State Hospitals. (Rodas, supra, 6 Cal.5th at pp. 224–226.)
When he was finally certified competent, medical staff indicated that his
competency was dependent on continuation of his medication regime. (Id. at
p. 226.) After jury selection and before opening statements, the defendant’s
attorney declared a doubt as to the defendant’s competency. (Id. at p. 227.)
During a colloquy with the court, the defendant stated he had stopped taking
his medication. (Id. at pp. 228–229.) The court did not suspend the
proceedings and trial proceeded. (Id. at p. 229.) During trial, and against the
advice of counsel, the defendant testified incomprehensibly. (Ibid.) The
defendant was ultimately convicted of murder with special circumstances,
and two counts of attempted murder. (Id. at p. 230.)
The Supreme Court reversed, concluding the trial court erred in failing
to suspend the proceedings after defense counsel expressed a doubt as to the
defendant’s competence. (Rodas, supra, 6 Cal.5th at pp. 235–236.) The
Rodas court indicated that although the defendant had previously been found
competent, the trial court had since become apprised of information that
constituted substantial evidence of mental incompetence. Specifically, the
court knew the defendant had stopped taking his medication, defense counsel
declared a doubt as to the defendant’s competence, and counsel reported that
the defendant’s communications consisted of incoherent “ ‘word salad’ ” just
as before when he was incompetent. (Id. at pp. 232–233.) Moreover, even if
the foregoing were not enough to show substantially changed circumstances
to trigger proceedings under section 1368, the “defendant’s nonsensical and
11
irrelevant testimony during trial, together with counsel’s earlier
presentation, clearly did so.” (Id. at p. 235, fn. 5.)
“The decision whether to order a competency hearing rests within the
trial court’s discretion, and may be disturbed upon appeal ‘only where a
doubt as to [mental competence] may be said to appear as a matter of law or
where there is an abuse of discretion.’ [Citation.] When the court is
presented with ‘substantial evidence of present mental incompetence,’
however, the defendant is ‘entitled to a section 1368 hearing as a matter of
right.’ [Citation.] On review, our inquiry is focused not on the subjective
opinion of the trial judge, but rather on whether there was substantial
evidence raising a reasonable doubt concerning the defendant’s competence to
stand trial. [Citation.] . . . A trial court reversibly errs if it fails to hold a
competency hearing when one is required under the substantial evidence
test.” (People v. Mickel (2016) 2 Cal.5th 181, 195.) “In resolving the question
of whether, as a matter of law, the evidence raised a reasonable doubt as to
defendant’s mental competence, we may consider all the relevant facts in the
record.” (People v. Young (2005) 34 Cal.4th 1149, 1217; People v. Ramos
(2004) 34 Cal.4th 494, 507 [“Substantial evidence of incompetence may arise
from separate sources, including the defendant’s own behavior.”].)
In this case, in the time leading up to his Napa State Hospital
commitment for incompetency and essentially from the start of the case,
defendant repeatedly made Marsden and Faretta motions, and the record
reflects that defendant was unable or unwilling to work with several of his
attorneys in the rational conduct of a defense. Proceedings were suspended
in April 2018 because defendant’s fifth attorney declared a doubt about his
competence. Then in late 2018 came the reports of Drs. Schoenfeld, Main
and Torry, which reflected that defendant was mentally ill and unmedicated
12
and that his mental illness impacted his ability to work with counsel due to
paranoid and persecutory beliefs about his attorney. Drs. Main and Torry
indicated that defendant could be restored to competency if treated with
medication.
When Napa State Hospital certified defendant as competent shortly
after his admission, the accompanying report indicated that defendant was
medicated as soon as he was admitted, and when he was evaluated the week
after, he “presented significantly different.” The report cautioned, however,
that while defendant was “currently competent, he will likely need to remain
consistently compliant with psychotropic medications in order to maintain his
current level of psychiatric stability through the criminal proceedings.”
(Italics added.)
On June 28, 2019, when requesting an evidentiary hearing concerning
competency, defense counsel stated his belief that defendant had feigned
competency, that defendant’s mental state prohibited him from cooperating
with and effectively assisting counsel, and that defendant’s competency
appeared dependent on medication. On July 15, 2019, defense counsel again
indicated that defendant persisted in refusing to talk with him; for his part,
defendant asked for a “conflict of interest” hearing.4
At the evidentiary hearing concerning defendant’s competency, Dr.
Remaker testified that defendant was found competent at a time when he
was taking antipsychotic medication and that if he were to stop it is possible
he would become incompetent. The court admitted stipulated testimony from
Dr. Schoenfeld that defendant would be competent if he continued to take
4 In response, the court held a Marsden hearing on July 19, 2019, and
statements made at that hearing further support the conclusion we reach
here.
13
medication prescribed at Napa State Hospital. Defendant testified that since
returning to the jail, he stopped taking the antipsychotic medication
previously given to him at Napa State Hospital. He also acknowledged
refusing to meet with his attorney at least once, though he claimed counsel
lied about him refusing to meet on another occasion. Defendant testified that
he did not trust counsel, that counsel had a reputation for “representing
Caucasian males better,” and that counsel had shown “a lot of misconduct”
while representing defendant. When asked when he had last agreed to meet
with counsel, defendant could not recall.
It was against this background that the trial court found defendant
competent and proceeded to trial. Defendant’s case went to trial twice. At
his first trial, defendant acted out in front of the prospective jurors—e.g.,
accusing his attorney of being racist, yelling, and lunging at his attorney.
After this incident, defense counsel renewed his request that defendant be
found incompetent, observing that defendant’s outburst indicated an inability
to control himself and to cooperate with counsel. The court denied the
request. Shortly thereafter, defendant had another outburst in court. After
cursing and threatening to kill the judge, defendant violently rushed to the
bench despite his restraints. Defense counsel renewed his request that the
court find defendant incompetent, but the court again declined.5 Then, just
as jury selection commenced in the second trial, defense counsel reasserted
his belief that defendant was incompetent, saying his interactions with
defendant had been “incomprehensible.” Moreover, during the second trial,
5 There is no dispute between the parties that the incidents that took
place during the first trial, prior to the mistrial, are relevant to the question
of whether there was evidence that raised a reasonable doubt as to
defendant’s mental competence. (People v. Young, supra, 34 Cal.4th at
p. 1217.)
14
defendant took the stand against his attorney’s advice and delivered a
narrative that was largely difficult to follow, argumentative, and irrelevant.
Considering the record in this case, the trial court was apprised of facts
that raised a reasonable doubt as to defendant’s competency and ability to
assist counsel in the conduct of a defense in a rational manner. (§ 1367,
subd. (a); Rodas, supra, 6 Cal.5th at p. 233.) The court heard from mental
health experts who reported and testified that defendant’s competence
depended on his mental health and medication compliance; the court was
then informed that defendant had stopped taking his medication since
returning from Napa State Hospital. Additionally, defense counsel
repeatedly declared a doubt as to defendant’s competence after he returned
from Napa State Hospital, and defendant was exhibiting the same behavior
as when he was previously unmedicated and declared incompetent, e.g., he
refused to meet with counsel, asked for new counsel, and expressed distrust
of counsel. Moreover, the court witnessed defendant’s physical and verbal
aggression and his meandering narrative testimony during the second trial.
On this record, the evidence of incompetence before the trial court was clearly
substantial. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 465.)
Accordingly, we agree with the parties that the court should have suspended
proceedings and conducted the formal inquiry under section 1368.
2. Remedy
We now turn to decide the appropriate remedy, which is disputed.
Relying on Rodas, supra, 6 Cal.5th 219, defendant contends the correct
remedy is a reversal and a new trial. Conversely, the People rely on People v.
Ary (2004) 118 Cal.App.4th 1016 (Ary) in urging that we not reverse the
judgment but instead remand to the trial court for a determination “whether
a retrospective competency hearing is feasible.”
15
In addressing this topic, Rodas indicates that historically the remedy
for error such as occurred here has been automatic reversal. (Rodas, supra, 6
Cal.5th at pp. 238–239.) But as Rodas essentially observed (id. at pp. 238–
239), cases such as the Ary decision left open the possibility that in the rare
case a meaningful retrospective competency determination might be possible
(Ary, supra, 188 Cal.App.4th at p. 1028). Ary had involved a defendant with
an intellectual disability,6 and the Ary court opted to remand to the trial
court to determine whether a retrospective hearing was feasible because the
record contained “extensive expert testimony and evidence . . . regarding
defendant’s [intellectual disability] and his ability to function in the legal
arena” at the time of his disputed competency. (Ary, at p. 1029.)
Although Rodas assumed, for purposes of argument, that a
retrospective competency hearing might be proper in some cases, the court
concluded such a hearing would not be appropriate in the case before it.
(Rodas, supra, 6 Cal.5th at p. 239.) In the court’s words, “[T]he critical
question in determining whether a retrospective competency hearing is
feasible is whether there is ‘sufficient evidence to reliably determine the
defendant’s mental competence when tried earlier.’ [Citation.] The burden of
proof in a retrospective hearing is on the defendant, and feasibility requires
finding that such a hearing ‘will provide defendant a fair opportunity to prove
incompetence, not merely [that] some evidence exists by which the trier of
fact might reach a decision on the subject.’ [Citation.] [¶] Several factors
might bear on this inquiry. [Citation.] Here, however, the dominant
considerations are the fluctuating nature of defendant’s symptoms, the
6 The term “intellectual disability” has replaced the term “mental
retardation” in other cases and so we employ that terminology here. (People
v. Boyce (2014) 59 Cal.4th 672, 717, fn. 24.)
16
passage of time, and the lack of contemporaneous expert evaluations. To
saddle defendant with the burden of proving his incompetence in March
2014, around five years after the fact, without the benefit of any
contemporaneous psychiatric, psychological, or neurological evaluation,
would neither be fair nor produce a reliable result. Without any significant
prospect of evidence showing competence being produced, moreover, a
retrospective hearing could not feasibly cure the . . . error.” (Id. at pp. 239–
240, some italics added.)
Like the Rodas court, we conclude the case before us is unsuitable for a
retrospective competency hearing. Defendant here has a mental disorder—
bipolar disorder—which is not an intellectual disability, and the record
contains reports and testimony from various doctors and defense counsel
indicating that defendant’s symptoms and competency appeared in a state of
flux. The most recent evaluation of defendant’s mental condition occurred
nearly three years ago in June 2019, when defendant was medicated to
competency at Napa State Hospital. Prior to that, he was evaluated by Drs.
Main, Torry, and Schoenfeld in November and December 2018, roughly a
year before his second trial. There is no indication defendant was ever re-
evaluated after the competency issue reemerged two weeks after his release
from Napa State Hospital in June 2019.
Given the fluctuating nature of defendant’s symptoms, the lack of a
contemporaneous expert evaluation regarding defendant’s mental condition
at the time of his second trial, and the considerable passage of time since that
trial, we conclude a retrospective hearing would not be an appropriate
remedy in this case. (Rodas, supra, 6 Cal.5th at p. 241 [no reliable
contemporaneous evidence of the defendant’s mental condition at trial where
the defendant was certified competent in May 2013 after being committed for
17
about a year, and his trial began in March 2014]; People v. Easter (2019) 34
Cal.App.5th 226, 249 [remand for a retrospective competency hearing not an
appropriate remedy where expert evaluations were performed 13 months
before defense raised doubt as to competency].) We therefore reverse the
judgment of conviction. Defendant may be retried on the charge for which he
was convicted if he is not presently incompetent to stand trial. (Rodas, at
pp. 241–242.)
B. Remaining Issues
Defendant raises additional arguments on appeal. He contends that
the trial court erred in failing to grant his motion to dismiss on
Trombetta/Youngblood grounds; in admitting his pretrial police interview
because he was not properly advised under Miranda; and in excluding a
proffered defense expert. He also contends that cumulative prejudice
warrants reversal. In a supplemental brief, defendant further contends that
he is entitled to resentencing due to recent amendments to section 1170.
Because we have concluded a reversal is warranted, these issues are moot
and need not be addressed. Nevertheless, because the remedy that defendant
seeks for the alleged erroneous denial of his Trombetta/Youngblood motion is
dismissal of the case, we will address that single issue.
1. Trombetta/Youngblood motion: additional background
During the investigation of the case, the police had information that
defendant and Jane Doe exchanged messages on a social media application
called “Snapchat.” After defense attempts to obtain records from Snapchat
proved unsuccessful, the defense filed a motion seeking to compel the
prosecution to subpoena records from Snapchat. Ultimately the prosecution
agreed to serve a search warrant on Snapchat. Inspector Amy Yardley,
working for the district attorney’s office, authored the warrant affidavit
18
seeking Snapchat communications between defendant and Jane Doe from
July 18, 2017 to August 23, 2017; the warrant was signed and served on
November 6, 2017. When she wrote the warrant affidavit, Yardley was
unaware that Jane Doe had corrected the date of the alleged rape to July 13,
2017. At a later hearing, the prosecutor indicated it had obtained records
from Snapchat but they contained nothing between defendant and Jane Doe.
At some point, Inspector Yardley learned Jane Doe corrected the date
of the incident. Yardley, however, did not attempt to obtain another warrant
for Snapchat data specifically from July 13 to July 18, 2017, because when
Snapchat had responded to the warrant, it provided all the saved messages in
Jane Doe’s account dating back to 2016. That is, the warrant had already
produced any saved records in Jane Doe’s account, and no saved messages
between Jane Doe and defendant were produced.
Defendant filed a Trombetta/Youngblood motion to dismiss, arguing
that the prosecution failed to obtain alleged Snapchat messages between
himself and Jane Doe, as well as surveillance footage from businesses located
on the path from where Jane Doe worked to where the rape occurred.
Following an evidentiary hearing, the trial court denied the motion. The
court first noted the Snapchat messages and the surveillance footage were
identified as being in the possession of third parties. The court found it
speculative as to whether such records or footage ever existed at the time
Jane Doe reported the crime. In any case, the court held, any perceived
exculpatory value of such Snapchat evidence was speculative, and there was
no showing of bad faith on the part of the police or prosecution. The court
also determined that there was no evidence of any surveillance video that
contained anything material to the case, and again there was no evidence of
bad faith.
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2. Analysis
Trombetta and Youngblood concern “ ‘what might loosely be called the
area of constitutionally guaranteed access to evidence.’ ” (Trombetta, supra,
467 U.S. at p. 485; Youngblood, supra, 488 U.S. at pp. 55, 57–58.) Trombetta,
which involved the failure to preserve breath samples from defendants after
breath analyses indicated they had been driving with blood alcohol levels
above the legal limit, held that due process requires the state to preserve
evidence that “both possess[es] an exculpatory value that was apparent
before the evidence was destroyed, and [is] of such a nature that the
defendant would be unable to obtain comparable evidence by other
reasonably available means.” (Trombetta, at pp. 482, 488–489 [rejecting due
process challenge to California’s policy of not preserving breath samples
obtained by the police].) Youngblood concerned the state’s failure to preserve
“potentially useful evidence,” i.e., evidence “of which no more can be said
than that it could have been subjected to tests, the results of which might
have exonerated the defendant.” (Youngblood, at pp. 57–58.) Youngblood,
which involved evidence that could not be rigorously tested because it had
been improperly stored, held that the failure to preserve potentially useful
evidence is not a denial of due process “unless a criminal defendant can show
bad faith on the part of the police.” (Id. at pp. 53, 58.) We review a ruling
denying a Trombetta/Youngblood motion to dismiss for substantial evidence.
(People v. Montes (2014) 58 Cal.4th 809, 837 (Montes).)
In this case, defendant complains that the police and prosecution failed
to request and obtain surveillance videos and Snapchat records after Jane
Doe changed her report of when the rape occurred. But it is undisputed that
any such evidence was never actually in the possession of the police or the
prosecution. This circumstance is significant because Youngblood and
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Trombetta were cases in which lost or destroyed evidence had been in the
state’s possession. (See People v. Alexander (2010) 49 Cal.4th 846, 878 [“Due
process requires the state preserve evidence in its possession where it is
reasonable to expect the evidence would play a significant role in the
defense.” (italics added)].) As the California Supreme Court has noted, “[i]t
is not entirely clear that the failure to obtain evidence falls within ‘ “what
might loosely be called the area of constitutionally guaranteed access to
evidence.” ’ ” (People v. Frye (1998) 18 Cal.4th 894, 943.) Thus, while the
Supreme Court “has suggested that there might be cases in which the failure
to collect or obtain evidence would justify sanctions against the prosecution
at trial,” the court continues “to recognize that, as a general matter, due
process does not require the police to collect particular items of evidence.”
(Ibid.; Montes, supra, 58 Cal.4th at pp. 837–838.)
Defendant attempts to circumvent this problem by arguing, at least
with regard to the alleged Snapchat evidence, that the prosecution had
“constructive possession” of such evidence once it served the warrant on
Snapchat. At that point, defendant argues, the prosecution had the legal
right to obtain and control that data and the warrant allegedly caused
Snapchat to destroy relevant records because it asked for data beginning on
July 18, 2017, which postdated the alleged rape on July 13. But the evidence
in the record supports the conclusion that Snapchat disposed of its records
according to its own retention policy, and there is nothing to suggest the
prosecution’s warrant “caused” Snapchat to delete data.
Contrary to defendant’s assertion, People v. Alvarez (2014) 229
Cal.App.4th 761 (Alvarez) does not support his theory of constructive
possession. In Alvarez, the court found a Youngblood violation where the
police lost videos from cameras that were maintained and controlled by the
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police department and accessible to the police at all times. (Alvarez, at
pp. 764, 767.) Although defendant is correct that Alvarez briefly mentions
the existence of private camera footage sought by defense counsel, the opinion
makes clear that its finding of a Trombetta violation was based on the loss of
footage from the police-controlled cameras. (Alvarez, at pp. 764, 766–771,
774–777.)
Defendant also claims that the prosecution acquired the legal duty to
exercise due care to obtain the Snapchat records for the correct dates when it
voluntarily served a search warrant on Snapchat, and that the prosecution’s
breach of this duty “proximately caused or was a substantial factor in
proximately causing” destruction of the records. But it is unclear why
framing this claim as one about duty, breach, and proximate causation—
concepts typically associated with claims of negligence—would bring this case
within the reach of Trombetta or Youngblood despite the circumstance that
the police and prosecution never actually possessed the evidence at issue.
Defendant cites no authority supporting this notion.
Nor is this an appropriate case for addressing whether or to what
extent Trombetta and Youngblood should be extended to a failure to collect
evidence. Here, the record contains no evidence indicating that the alleged
missing evidence had apparent exculpatory value or that the police acted in
bad faith. Indeed, defendant makes no showing that any of the alleged
missing evidence existed at the time Jane Doe reported the crime.
In sum, the record before us fails to establish that the trial court erred
in denying defendant’s Trombetta/Youngblood motion.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court
for further proceedings consistent with this opinion.
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_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A159741
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