People v. Negron CA2/2

Filed 11/22/22 P. v. Negron CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B322510

Plaintiff and Respondent, (Kern County Super. Ct.
No. DF013159A)
v.

JOSE NEGRON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern
County, John R. Brownlee, Judge. Affirmed in part, vacated in
part, and remanded with directions.

William J. Capriola, under appointment by the Court of
Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen, Sally Espinoza, and
Stefanie Yee, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________

In a single-count information filed by the Kern County
District Attorney’s Office, defendant and appellant Jose Negron,
also known as Joe Tomasello,1 was charged with battery by a
prisoner on a nonconfined person (Pen. Code, § 4501.5),2 in the
commission of which he personally inflicted great bodily injury
(§ 12022.7). It was further alleged that defendant had five out-of-
state convictions, which qualified as serious felonies within the
meaning of the “Three Strikes” law (§§ 667, subds. (c)-(j), 1170.12,
subds. (a)-(e)) and section 667, subdivision (a), and that he had
served two prior prison terms (§ 667.5, subd. (b)).
Defendant represented himself at trial. The jury found him
guilty of the charged offense and found true the great-bodily-
injury allegation. The jury also found true all prior conviction
allegations.3 The trial court sentenced defendant to a total term
of 27 years to life in prison, plus a determinate term of 23 years.

1 According to defendant, Jose Negron is an alias and his
real name is Joe Tomasello. Both names appear throughout the
record.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 At the request of the People, the trial court had previously
dismissed the two prior prison term allegations.

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 In this timely appeal, defendant contends that (1) the trial
court committed multiple reversible errors with respect to
defendant’s competency to stand trial and to represent himself,
and (2) the trial court erred in ruling that defendant’s out-of-state
convictions qualified as serious felonies under California law.
The People concede—and we agree—that the evidence was
insufficient to prove that any of the out-of-state convictions was a
serious felony for the purpose of the Three Strikes law or the
section 667, subdivision (a) enhancement. Accordingly, we
reverse the true findings on those prior conviction allegations,
vacate defendant’s sentence, and remand the matter to the trial
court, where the People may retry the prior conviction
allegations.
We otherwise affirm the judgment.
FACTS4
On June 23, 2017, Correctional Officer Richard Juan
entered defendant’s prison cell at Wasco State Prison to deliver
legal mail. As Officer Juan bent over to have defendant, who was
seated in his wheelchair, sign for the mail, defendant hit Officer
Juan twice in the face. Officer Juan suffered a fractured nose, for
which he underwent surgery.
DISCUSSION
I. Competency to Stand Trial and for Self-Representation
Defendant raises three arguments related to his
competency to stand trial and to represent himself. He contends

4 Because defendant does not challenge the sufficiency of the
evidence underlying his conviction for the charged offense—
battery by a prisoner on a nonconfined person—and the great-
bodily-injury enhancement, we provide only a brief summary of
the facts adduced at trial.

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that the trial court erred by (1) failing to suspend proceedings
and conduct a new competency hearing after learning that
defendant was no longer taking medication and was displaying
bizarre behavior; (2) allowing defendant to represent himself at a
hearing on July 8, 2019, after the prosecutor raised a doubt as to
defendant’s competence; and (3) permitting defendant to
represent himself at trial.
A. Background
1. Doubt as to defendant’s competency
At a pre-preliminary hearing on December 6, 2017,
defendant petitioned to represent himself. During the ensuing
colloquy, defendant claimed that he had previously represented
himself when Google Earth attempted to prosecute him. He
stated that Google Earth was watching and listening to him and
that people were “trying to pin [him] with stuff.” Defendant was
taking medication for psychological reasons.
The trial court declared a doubt as to defendant’s
competency, suspended criminal proceedings, and appointed two
mental health professionals to evaluate defendant.
2. Competency evaluations
Two psychologists—Dr. Musacco and Dr. Haddock—
evaluated defendant.
i. Dr. Musacco’s evaluation
“Defendant described a variety of delusional beliefs” to
Dr. Musacco. For example, defendant stated that former First
Lady Michelle Obama was transgender and that she was
involved in a homosexual relationship with former President
Barack Obama. The Obamas were monitoring him and had
placed a camera in his jail cell. They were following defendant to
“prevent him from exposing their well-kept secrets.” Then-

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President Donald Trump had promised to help defendant.
Defendant also claimed to be an internationally renowned DJ.
Dr. Musacco found that defendant had “a serious mental
illness which substantially impact[ed] his reality contact” and “an
impaired understanding of his potential penalties . . . .”
Dr. Musacco opined that defendant was “incapable of
representing himself in a rational and effective manner.”
ii. Dr. Haddock’s evaluation
Defendant also made claims regarding the Obamas to
Dr. Haddock. He stated that Michelle Obama was a
“‘transvestite’” and a drug dealer; President Obama had been a
police officer in Chicago and had arrested defendant. Defendant
accused his mother of being “‘evil’” and “‘waiting for [him] to die
so she c[ould] sue the State of California.’” He admitted to
obsessive thoughts concerning being followed and watched.
Dr. Haddock opined that defendant was incompetent to
stand trial and to represent himself.
3. Incompetency to stand trial
On January 3, 2018, after considering the psychological
evaluations, the trial court found that defendant was not
presently competent to stand trial and referred him to Kern
Behavioral Health and Recovery Services for recommendation
and evaluation.
4. Commitment to state hospital
In late January 2018, the trial court committed defendant
to the State Department of Mental Health. The court ordered
defendant to be housed at Atascadero State Hospital (Atascadero)
for appropriate treatment and confinement.

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 5. Involuntary administration of medication
A psychologist at Atascadero evaluated defendant on
November 7, 2018. During the evaluation, defendant
“express[ed] delusional statements about Obama and FBI
monitoring him through cameras[.]” (Italics omitted.) He
“expressed clear paranoia and persecutory delusional beliefs
about the criminal justice system[.]” (Italics omitted.) Defendant
stated that he did not want to be represented by a public
defender and maintained that he wanted to represent himself.
The psychologist opined that defendant “would likely be
extremely ineffective in court, as he relies upon delusional or
misunderstood ‘evidence’ when discussing his case, is unable to
remain calm while describing his legal situation, and is often
unable to appropriately stay on topic.” (Italics omitted.)
On December 10, 2018, the Department of State Hospitals
petitioned for an order to compel the involuntary treatment of
defendant with antipsychotic medication. The hearing on the
petition was held on December 19, 2018.
At the hearing, Dr. Elwyn, defendant’s treating
psychiatrist at Atascadero, explained that defendant suffered
from schizophrenia, the symptoms of which include
hallucinations, delusions, paranoia, and disorganization.
Dr. Elwyn’s conclusion was based on defendant’s “delusional
beliefs” regarding, inter alia, the Obamas and the singer and
actress Jennifer Lopez being his girlfriend. Defendant had also
endorsed auditory and visual hallucinations. According to
Dr. Elwyn, defendant “ha[d] no insight into the fact that he ha[d]
a mental illness[,] that these [we]re delusional beliefs, [and] that
he [wa]s in need of medication.”

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 At Atascadero, defendant had refused to take his
prescribed antipsychotic medication. Dr. Elwyn explained that
defendant suffered direct physical harm as a result of his
schizophrenia, including declining medically recommended
hernia surgery and licking the tip of his catheter, which caused
an infection. If left untreated, defendant’s mental illness posed a
threat of harm to his mental health.
Defendant addressed the trial court, stating that he did not
need medication, that he was “perfectly fine[,]” and that he
needed help resolving the case so that he could “go about [his]
way and . . . keep fighting.”
The trial court found that defendant “lack[ed] the capacity
to make his decision regarding psychotic medication and if his
mental disorder [wa]s not treated, it would cause physical harm
or mental harm to [defendant].” The court issued an order
authorizing the involuntary administration of antipsychotic
medication to defendant.
6. Restoration to competency
In a February 28, 2019, report to the trial court, staff at
Atascadero recommended that defendant “be returned to court as
competent to stand trial . . . .” At that time, defendant’s
“[t]hought process was linear, logical and goal-directed.” He
continued, however, to “express grandiose claims” about knowing
President Obama and Jennifer Lopez and had poor insight into
his mental illness. Defendant’s “symptoms [were] effectively
managed by his current medication.” Regarding his criminal
case, defendant “ha[d] a solid understanding of his charge,
consequences of prior convictions, and criminal proceedings
against him.” (Bolding omitted.) Defendant had “attempted to
conceal or ‘cheek’ his medication in the past”; therefore the report

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recommended that his medication “be given exactly as
prescribed . . . to avoid decompensation.”
On March 4, 2019, Atascadero’s medical director certified
that defendant was presently competent to stand trial. In an
accompanying letter, the medical director stated: “[Defendant] is
being returned to court on psychotropic medication. It is
important that [defendant] remain on this medication for his own
personal benefit and to enable him to be certified under Section
1372 of the Penal Code.”
On March 15, 2019, the trial court found that defendant
had been restored to competency and reinstated criminal
proceedings.
7. Defendant’s request to represent himself
On June 20, 2019, defendant again indicated that he
wanted to represent himself. The trial court held a hearing on
defendant’s request on June 27, 2019.
At the hearing, the trial court informed defendant of the
risks and disadvantages of self-representation, but defendant
maintained his request. The court found that defendant had
voluntarily, intelligently, and unequivocally waived his right to
counsel. Defendant asked if he “could have a regular attorney to
guide [him]” given that it was “a life case.” This concerned the
court, which explained that it was not its normal practice to
appoint “co-counsel” for a self-represented defendant. The court
indicated its willingness to allow defendant to withdraw his
request to represent himself. After the court elaborated on the
disadvantages, defendant still elected self-representation.

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 8. The prosecutor’s pretrial concerns
i. July 8, 2019, hearing
On July 8, 2019, defendant indicated that he was ready for
trial, that he had reviewed any and all relevant reports and
evidence that could be used against him, and that he did not have
any witnesses.
The prosecutor then noted that defendant’s statement that
he did not have any witnesses conflicted with his earlier
representations. The prosecutor expressed concern that
defendant was “not able to conduct his own defense in a rational
manner.” According to the prosecutor, defendant had stated that
he was not on any medication. The prosecutor noted that the
evaluations from Atascadero had stated the importance of
defendant remaining on medication to maintain his competency.
When asked by the trial court, defendant confirmed that he
had not been taking medication in the lead-up to trial. The court
asked defendant if his doctors had told him that he no longer
needed to take the medication or if he had “decided on [his]
own[.]” Defendant responded, “They told me I didn’t need to take
it. They took me off of it.”
The following colloquy ensued:
“THE COURT: I’m going to ask you some really basic
questions. I don’t mean to be disrespectful to you. I need to
make some considerations. . . . [¶] Do you know what I am, like
what my title is?
“THE DEFENDANT: Yes. You are a judge.
“THE COURT: Do you understand what my role in this
process is?
“THE DEFENDANT: Yes.
“THE COURT: Use your own words. What is my job?

9
 “THE DEFENDANT: Your job is to either find me not
guilty or guilty.
“THE COURT: That would be if you waived your right to a
jury trial. [¶] Do you understand you have a right to a jury trial?
“THE DEFENDANT: Yes, I do.
“THE COURT: Are you asking to give up that right or
would you still be exercising your right to have a jury trial?
“THE DEFENDANT: No. I would like a jury trial.
“THE COURT: So understanding that the jury would be
the finders of fact, they would be the ones determining whether
or not you’re guilty or not based on the evidence, what, then,
would you see my role as the judge?
“THE DEFENDANT: Well, to hand down the sentence or
set me free.
“THE COURT: That is part of my job. [¶] During the trial
what do you think I would be doing?
“THE DEFENDANT: You would be basically objecting and
sustaining or overruling what me and her have to say.
“THE COURT: Do you understand what Ms. Marshall’s
role is in this trial?
“THE DEFENDANT: Yeah. She’s the prosecutor.
“THE COURT: As the prosecutor . . . what is her role?
“THE DEFENDANT: She needs to prove that I’m guilty.
“THE COURT: Do you understand the burden of proof as
far as how much—like how high she has to prove it, beyond what
level?
“THE DEFENDANT: No, I’m not sure about that.
“THE COURT: Have you ever heard the phrase beyond a
reasonable doubt?
“THE DEFENDANT: Yeah. Okay. Yes.”

10
 After the prosecutor stated that there was nothing else that
she wanted to add to the record, the trial court announced that it
had not found anything indicating or suggesting that defendant
was incompetent. The court explained:
“He seems to understand the role of the judge and the jury.
He may not articulate it as well as perhaps somebody who is
experienced in these matters, as a professional attorney or
member of the court staff or myself, but I think he did explain the
different roles [of] the main players . . . .
“He’s indicated that the doctors have discontinued
medication. I have nothing to suggest, other than the
representations that the report indicated he needed to stay on
medication, but he’s not showing any decompensation as a result
of perhaps not being on medication at this time.
“Additionally, he has indicated that he understands he has
an obligation potentially to provide you information as far as
evidence that he might want to present in his own defense. He
also has indicated that he thought he might need some doctors to
testify or some witnesses to testify on his own behalf, but he
believes, upon further evaluation and analysis, he does not need
those. He believes he has alternative evidence that may be able
to establish the facts that he wants to establish by way of that
evidence, and so I do not find that it would be appropriate to
terminate [defendant’s] self-representation.”
The trial court recognized “that somebody who may be
competent to stand trial may not be competent to represent
themsel[f].” The court, however, concluded that there were not
“sufficient grounds to terminate” defendant’s right to self-
representation.

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 ii. July 9, 2019, hearing
The following day, on July 9, 2019, the case was transferred
to a different courtroom for trial. Defendant indicated that he
was ready for trial and that he might call two witnesses. The
prosecutor noted that defendant had not subpoenaed any
witnesses. The court responded, “Well, then, he won’t be calling
them as witnesses if he hasn’t subpoenaed them.” Defendant
stated that he had not received “paperwork from the law library
to subpoena them” because he was in the prison’s administrative
segregation. The court informed defendant that he was required
to disclose the names of his witnesses to the prosecutor and
reminded him that he had stated that he was ready for trial.
Defendant responded, “Yeah. Okay. I’m ready. Let’s go to trial.
I can do it.”
The prosecutor told the trial court: “[Y]esterday I
brought . . . a motion saying I don’t believe the defendant is
competent to represent himself . . . .” She further explained, “I
would have concerns with the defendant representing himself if
he can’t even figure out [how] to subpoena the witness.”
Defendant insisted that he could defend himself by telling
the truth and questioning Officer Juan “to catch him in a lie.”
The trial court gave defendant the opportunity to subpoena
a witness, but it explained that defendant would “have to waive
time in order to do that.” The court also offered to appoint an
investigator to assist defendant with the subpoena. Defendant
stated that he would only agree to postpone trial for a maximum
of 10 days. When the court indicated that would be impossible,
defendant reiterated that he did not want to waive time to
present his defense.

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 The prosecutor stated that she did not think that defendant
was prepared and that it was “a very bad choice” for him to
represent himself. She further commented that the trial court
could, “perhaps, . . . find he’s not competent to represent himself,
but . . . he appears to understand what’s going on and just doesn’t
want to waive.” Asked by the court if that was the case,
defendant responded, “Yeah. I’m ready to go forward.”
9. Defendant’s trial conduct
On July 10, 2019, prior to jury selection, the trial court
renewed its offer to appoint an investigator for defendant and to
allow defendant time to subpoena witnesses. Defendant was
unwilling to accept that offer and indicated that he was prepared
to go forward. Shortly thereafter, defendant made comments
about “running from this state here and Google Earth” and that
he had “let Mr. Trump know a couple of things and he was
satisfied with that.”
On the first day of trial, defendant cross-examined Officer
Juan. Defendant questioned him regarding the purpose of
entering defendant’s cell on June 23, 2017, the details of the
battery, and Officer Juan’s incident report.
The following morning, on July 11, 2019, defendant refused
to come to court from the detention facility and was ordered to be
brought “with reasonable and necessary force[.]” The prosecutor
informed the trial court that when she had attempted to give
defendant oral discovery, defendant had cursed at her and would
not allow her to provide the discovery.
After a physician’s assistant testified on direct-examination
about Officer Juan’s injuries, the trial court asked defendant if he
had any questions for the witness. Defendant did not respond
and the court noted that defendant had “raised his right hand

13
and extended his middle finger.” Later, when asked by the court
if defendant wished to make a statement to the jury, defendant
refused to answer and again raised his middle finger. After the
prosecution rested and the court asked if defendant wished to
present any evidence, defendant twice raised his middle finger,
which the court interpreted “as a no.”
At the start of the afternoon session on July 11, 2019, the
trial court inquired whether defendant wished to present any
special instructions to the jury. Defendant raised his middle
finger and stated, “These are my special instructions right here.”
When the court repeated the request, defendant stated, “A faggot
gets the finger[.]” The court noted that on several occasions
during the morning session, defendant had extended his middle
finger to the judge, the jury, or witnesses.
The trial court noted that defendant had been placed in
physical restraints that morning and set forth the reasons on the
record by questioning two officers from the detention facility.
According to one officer, defendant had refused to dress and come
out of his cell that morning. Defendant had said, multiple times,
“‘Eat a dog’s dick and die.’” Another officer had witnessed
defendant screaming at the prosecutor as she was trying to give
him discovery, telling her to “‘[d]iscover her own ass[.]”
The trial court later asked defendant if he wanted the jury
to consider any lesser-related offenses. Defendant stated, “I’m
asking for the jury to get back. Or send me back so I can get
some Zs.” When the court asked again, defendant responded,
“No. I want to be—on a rig. I want to get out of here. I haven’t
committed a crime.”
On the third and final day of trial—July 15, 2019—
defendant presented his closing argument, during which he asked

14
the jury to disregard his past because he was “a redeemed
individual.” He argued that Officer Juan had caused his broken
nose himself. The trial court repeatedly admonished defendant
that he could not bring up new evidence. Defendant concluded by
stating, “I guess I’ll leave it to Almighty to decide.”
After the verdict was announced, the trial court asked
defendant if he wanted to poll the jury. Defendant responded,
“No, Judge. Actually, I haven’t been on my meds . . . [.]” After
the jury exited the courtroom, defendant told the court, “I’ve been
hearing voices throughout this whole trial and I’ve got, like,
somebody talking to me in the cell and it tells me to represent
myself and I was supposed to be on meds and they haven’t given
me my meds so I am stating that I’m incompetent.” The court set
the matter for sentencing.
10. Appointment of counsel
Prior to sentencing, defendant requested and was
appointed counsel.
11. Motion for a new trial
On November 25, 2019, defendant, represented by counsel,
filed a motion for “a new trial on the ground of legal error in
permitting defendant to represent himself.” The People opposed
the motion.
On March 18, 2020, after entertaining oral argument, the
trial court denied defendant’s motion for a new trial. The court
explained, “This Court did not see any indication of severe mental
illness to the point where the defendant could not carry out the
basic tasks needed to present a defense. [¶] What the Court did
see [are] the very common mistakes almost all pro per defendants
make of being unfamiliar with the code, unable to properly pick a
jury, or properly admit evidence. [¶] Due to this the defendant

15
would become frustrated or nonresponsive or make unsolicited
statements. [¶] His cursing or disruptive actions or bizarre
answers to questions or statements taken in isolation or overall
in this particular trial was not substantial evidence of mental
incompetence.” Thus, the court concluded that it “did not err[] in
permitting the defendant to represent himself[.]”
B. Relevant law
1. Competency to stand trial
The trial of an incompetent defendant violates the due
process clauses of both the United States and California
Constitutions. (People v. Nelson (2016) 1 Cal.5th 513, 559.) “A
defendant is incompetent to stand trial if the defendant lacks
‘“‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding . . . [or] a rational as
well as factual understanding of the proceedings against him.’”’
[Citations.]” (People v. Mickel (2016) 2 Cal.5th 181, 195 (Mickel).)
A trial court is required “to suspend trial proceedings and
conduct a competency hearing whenever the court is presented
with substantial evidence of incompetence, that is, evidence that
raises a reasonable or bona fide doubt concerning the defendant’s
competence to stand trial. [Citations.]” (People v. Rogers (2006)
39 Cal.4th 826, 847; see also § 1368.)5

5 Section 1368, subdivision (a), provides: “If, during the
pendency of an action and prior to judgment, . . . a doubt arises in
the mind of the judge as to the mental competence of the
defendant, he or she shall state that doubt in the record and
inquire of the attorney for the defendant whether, in the opinion
of the attorney, the defendant is mentally competent. If the
defendant is not represented by counsel, the court shall appoint
counsel. At the request of the defendant or his or her counsel or
upon its own motion, the court shall recess the proceedings for as

16
 “[G]enerally speaking, when a defendant has already been
found competent to stand trial, ‘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.’ [Citation.]” (People v. Rodas (2018) 6 Cal.5th 219, 234
(Rodas); see also People v. Jones (1991) 53 Cal.3d 1115, 1153.)
And, “when a competency hearing has already been held, ‘the
trial court may appropriately take its personal observations into
account in determining whether there has been some significant
change in the defendant’s mental state,’ particularly if the
defendant has ‘actively participated in the trial’ and the trial
court has had the opportunity to observe and converse with the
defendant. [Citation.] [¶] This rule does not, however, alter or
displace the basic constitutional requirement of Pate[ v. Robinson
(1966) 383 U.S. 375, 385–386] and People v. Pennington[ (1967)
66 Cal.2d 508, 518], which require the court to suspend criminal
proceedings and conduct a competence hearing upon receipt of
substantial evidence of incompetence even if other information
points toward competence.” (Rodas, supra, at p. 234.)
“We review a trial court’s determination concerning
whether a new competency hearing must be held for substantial
evidence. [Citation.]” (People v. Ng (2022) 13 Cal.5th 448, 531.)
2. Competency to exercise right to self-representation
The United States Constitution guarantees a criminal
defendant the “right to proceed without counsel when he
voluntarily and intelligently elects to do so.” (Faretta v.

long as may be reasonably necessary to permit counsel to confer
with the defendant and to form an opinion as to the mental
competence of the defendant at that point in time.”

17
California (1975) 422 U.S. 806, 807.) That right, however, is not
absolute. (Indiana v. Edwards (2008) 554 U.S. 164, 171
(Edwards).) A state may “insist upon representation by counsel
for those competent enough to stand trial . . . but who still suffer
from severe mental illness to the point where they are not
competent to conduct trial proceedings by themselves.” (Id. at
p. 178.)
Our Supreme Court has held that California “trial courts
may deny self-representation in those cases where Edwards
permits such denial.” (People v. Johnson (2012) 53 Cal.4th 519,
528.) Still, “[s]elf-representation by defendants who wish it and
validly waive counsel remains the norm and may not be denied
lightly. A court may not deny self-representation merely because
it believes the matter could be tried more efficiently, or even
more fairly, with attorneys on both sides.” (Id. at p. 531.)
“A trial court’s determination regarding the defendant’s
competence to represent himself is reviewed for substantial
evidence.” (People v. Orosco (2022) 82 Cal.App.5th 348, 358.)
C. Analysis
1. Failure to conduct new competency hearing
Defendant asserts that the trial court erred by failing to
declare a doubt as to defendant’s competence, suspend
proceedings, and conduct a new competency hearing once it
became aware that defendant had stopped taking his medication
and “started displaying signs of incompetence similar to those he
exhibited during the time he was incompetent[.]” We conclude
otherwise.
When the prosecutor expressed concern on July 8, 2019,
that defendant was “not able to conduct his own defense in a
rational manner” and was no longer taking medication, the trial

18
court took the reasonable and appropriate step of questioning
defendant about the medication and defendant’s understanding
of the court proceedings. Nothing in defendant’s response to this
questioning, or in his subsequent conduct at trial, presented the
court with substantially changed circumstances or new evidence
that cast a serious doubt as to the validity of its prior competence
finding.
When asked by the trial court, defendant confirmed that he
was no longer taking his medication but stated that his doctors
had taken him off of it because he no longer needed it. Defendant
now contends that his representation to the court “obviously
cannot be trusted, and should not have been trusted.” But it is
not impossible or inherently implausible that a doctor might
discontinue prescribed medication such that the court was
required to disbelieve defendant. (See State Farm Fire &
Casualty Co. v. Jioras (1994) 24 Cal.App.4th 1619, 1626, fn. 5
[“an appellate court . . . may not reject evidence as lacking
credibility unless it is physically impossible [citations] or
inherently implausible [citation]”].) And, regardless of whether
defendant made the unilateral decision to stop taking medication
or was following professional advice, the court found that
defendant was “not showing any decompensation as a result . . . .”
Having questioned and observed defendant, the trial court was in
the best position to make this determination (Mai, supra,
57 Cal.4th at p. 1033 [“the trial court is in the best position to
observe the defendant during trial”]), and could “‘appropriately
take its personal observations into account in determining
whether there ha[d] been some significant change in . . .
defendant’s mental state’” (Rodas, supra, 6 Cal.5th at p. 234).

19
 Defendant argues that, as the trial progressed, he “grew
increasingly hostile and withdrawn and showed signs of
decompensation.” It is certainly true that defendant used
profanity in the courtroom, made obscene hand gestures, uttered
occasional bizarre comments, and was uncooperative at times.
“However, once a defendant has been found to be competent, even
bizarre statements and actions are not enough to require a
further inquiry. [Citation.]” (People v. Marks (2003) 31 Cal.4th
197, 220.)6 “An uncooperative defendant is not tantamount to an
incompetent one.” (People v. Parker (2022) 13 Cal.5th 1, 29.) Nor
is “disruptive behavior . . . substantial evidence of incompetence
unless, by its particular nature, it casts doubt on the defendant’s
ability to assist in his or her defense. [Citations.]” (Mai, supra,
57 Cal.4th at p. 1034.) Here, defendant demonstrated an
adequate understanding of the criminal proceedings, cross-
examined a witness, made opening and closing statements, and
advanced a seemingly plausible defense.

6 It is well-settled that mere bizarre statements or actions do
not by themselves require a trial court to hold a competency
hearing. (See Mickel, supra, 2 Cal.5th at p. 202; People v.
Laudermilk (1967) 67 Cal.2d 272, 285.) By way of example, the
California Supreme Court recently concluded that a criminal
defendant’s “odd behaviors”—including “calling [a] mental health
expert . . . ‘a Christian spy’; suggesting there were poisoned ants
on cookies provided by the jail; referring to [d]efense [c]o-
counsel . . . as the ‘consigliere of the principality of Israel,’ the
last phrase (the principality of Israel) seemingly referring to
himself; referring to [the] [p]rosecutor . . . as ‘one of [his]
subjects’; and calling [the trial judge] the ‘lady of the court[]’”—
did not require the trial court to raise a doubt as to the
defendant’s competency under section 1368. (People v. Bloom
(2022) 12 Cal.5th 1008, 1032.)

20
 We also find that the two cases upon which defendant
relies heavily—Rodas, supra, 6 Cal.5th 219 and People v.
Murdoch (2011) 194 Cal.App.4th 230 (Murdoch)—do not compel
reversal, as they are distinguishable in significant ways.
In Rodas, the defendant was found incompetent to stand
trial and was confined to a state hospital, where he was treated
with antipsychotic medication. (Rodas, supra, 6 Cal.5th at
p. 223.) “After several months of treatment with antipsychotic
medication, hospital physicians reported that [the] defendant had
regained trial competence, but cautioned that it was important
for [the] defendant to continue taking his medication. At the
start of his jury trial some months later, however, the trial court
learned that [the] defendant had stopped taking his medication
and that he had begun communicating incoherently with counsel
about defense strategy, exhibiting some of the same symptoms he
had displayed during earlier episodes of incompetence. Defense
counsel declared a doubt about [the] defendant’s competence, but
the trial court ruled that the trial could proceed after conducting
a brief colloquy with [the] defendant in which [the] defendant
was able to identify the charges against him and stated a
willingness to go to trial and work with counsel.” (Ibid.)
The California Supreme Court reversed, holding: “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

21
investigation 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.
[Citation.]” (Rodas, supra, 6 Cal.5th at p. 223.)
While the facts of Rodas are similar to those of the instant
case in several respects, critical differences exist. In both cases, a
prior competence finding was “effectively conditioned” on taking
antipsychotic medication. (Rodas, supra, 6 Cal.5th at p. 235; see
also id. at p. 238.) But here, defendant represented to the trial
court that his medication had been discontinued by his doctors,
which the court was entitled to believe. No such representation
was made in Rodas. And, in Rodas, the trial court was
confronted with substantial evidence that the defendant was
exhibiting signs of incompetence that directly related to his
ability to assist in his defense. Defense counsel informed the
trial court that her client was communicating in an incoherent
manner; he was using the same type of “‘word salad’” that he had
used when he had previously been deemed incompetent. (Id. at
p. 227.) Defense counsel had difficulty understanding what her
client was saying and wanted. (Ibid.) Unlike here, the trial court
in Rodas was aware of facts “rais[ing] a reasonable doubt as to
whether [the] defendant was able to communicate rationally with
his attorney and thus ‘to assist counsel in the conduct of a
defense in a rational manner.’” (Id. at p. 233, italics added.)
In Murdoch, doctors appointed to examine the defendant
pursuant to section 1368 concluded that he was presently
competent, but they expressed concern that he had subsequently
refused to take his prescribed medication and could, as a result,
become incompetent. (Murdoch, supra, 194 Cal.App.4th at
pp. 232–233.) The trial court found that the defendant was not

22
incompetent. (Ibid.) About two months later, the defendant was
permitted to represent himself at trial. (Id. at pp. 233–234.)
Prior to opening statements, the defendant informed the trial
court that his defense was that the alleged victim was not a
human being. To prove this, he wanted to introduce pages from
the Bible and demonstrate that the victim did not have shoulder
blades, which he believed were “‘symbolic of angelic beings.’” (Id.
at p. 234.) The sole question he asked of a witness was whether
the victim could shrug his shoulders. (Id. at p. 235.)
The Court of Appeal held that the defendant’s bizarre
statements, “taken together” with the expert reports (Murdoch,
supra, 194 Cal.App.4th at p. 238) detailing the “defendant’s
fragile competence and its evident dependence upon continued
medication” (id. at p. 237), “provide[d] the substantial evidence
necessary to demonstrate a reasonable doubt as to whether he
had in fact decompensated and become incompetent as the
experts had warned” (id. at p. 238).
In both Rodas and Murdoch, “the defendants’ behavior, in
combination with the warnings of the health professionals about
the likelihood that they would become incompetent if they did not
take antipsychotic medication, was substantial evidence giving
rise to a doubt as to their competence.” (Rodas, supra, 6 Cal.5th
at p. 236.) Here, the trial court was aware that defendant was no
longer taking his medication, but the court was not confronted
with statements and behavior indicating that defendant could not
rationally contribute to his defense. Defendant did not speak in
“‘word salad’” (id. at p. 227) or advance a delusional defense such
as that the victim was not human (Murdoch, supra,
194 Cal.App.4th at p. 234). Defendant contends that his refusal
to delay proceedings in order to subpoena witnesses was

23
irrational in light of the sentence he was facing if convicted.
While arguably unwise, we decline to find that asserting his right
to a speedy trial and declining to waive time when he believed
that he could mount his defense in other ways was substantial
evidence of incompetence.7
Having carefully reviewed the record, we conclude that
substantial evidence supports the trial court’s decision not to hold
a new competency hearing. Given the lack of substantially
changed circumstances or new evidence casting serious doubt on
the validity of its prior competence finding, the court could
continue to rely on it.
2. Self-representation at the July 8, 2019, hearing
Defendant also claims that, under People v. Lightsey (2012)
54 Cal.4th 668 (Lightsey), the trial court committed reversible
error by allowing defendant to represent himself at the July 8,
2019, hearing after the prosecutor informed the court that
defendant was no longer taking his medication and questioned
his competence to represent himself.
In Lightsey, the California Supreme Court held that it was
reversible error for a trial court to permit a “defendant to
represent himself during the competency proceedings following
the trial court’s . . . declaration of doubt under section 1368.”

7 In his reply brief, defendant likens his case to In re Sims
(2021) 67 Cal.App.5th 762 (Sims), where “even to a casual
observer, the manner in which [the] defendant conducted her
defense was not rational. [Citation.]” (Id. at p. 778.) This
included arguing that her husband, who she was accused of
killing, had actually been alive when the coroner took
photographs. (Id. at p. 769.) Albeit ultimately unsuccessful, we
cannot say that defendant conducted his defense in a similarly
irrational way.

24
(Lightsey, supra, 54 Cal.4th at p. 690.) The Supreme Court
pointed to the language of section 1368, which requires the
appointment of counsel under such circumstances. (Lightsey,
supra, at p. 692 [“The plain language of section 1368 . . . provides
that when the trial court states on the record that a doubt exists
concerning the defendant’s mental competence, ‘[i]f the defendant
is not represented by counsel, the court shall appoint counsel[]’”
(italics omitted)].) The Supreme Court concluded that the
defendant’s statutory rights had been violated, but it declined to
decide whether his constitutional rights were also violated. (Id.
at pp. 698–699.)
Lightsey does not compel reversal here, where the trial
court did not declare a doubt concerning defendant’s competency,
suspend trial proceedings, and initiate formal competency
proceedings.8 Section 1368’s requirement that counsel be
appointed upon the trial court’s declaration of doubt simply was
not triggered, and we find no error in allowing defendant to
represent himself at the July 8, 2019, hearing.

8 Defendant’s reliance on People v. Tracy (1970)
12 Cal.App.3d 94 (Tracy) is equally misplaced. In Tracy, the trial
court permitted the defendant to discharge his attorney and
represent himself in the midst of section 1368 competency
proceedings. (Tracy, supra, at pp. 99–101.) The Court of Appeal
reversed, concluding: “When a doubt has arisen as to a
defendant’s sanity, and that fact has been judicially declared, we
think it equally contradictory, inconsistent and incongruous to
permit him to discharge his attorney and represent himself at the
hearing where the issue of his sanity is to be determined.” (Id. at
p. 102.) Here, in contrast, doubt regarding defendant’s
competence was not “judicially declared” (ibid.) at the July 8,
2019, hearing.

25
 3. Self-representation at trial
Finally, defendant contends that he was incompetent to
represent himself at trial. Quoting People v. Burnett (1987)
188 Cal.App.3d 1314, 1327, defendant argues that he lacked “‘an
appreciation of the . . . nature of possible penalties . . . [or] his
own physical or mental infirmities’ and was unable to ‘use
relevant information rationally in order to fashion a response to
the charges; [or] coherently communicate that response to the
trier of fact.’”
We disagree. Defendant expressed his understanding that
he was facing a life sentence when he sought to represent
himself. He participated in voir dire and used a peremptory
challenge to excuse a juror who worked for the California
Department of Corrections and Rehabilitation as a correctional
officer because “the case has to do with being in the CDC[R].”
During argument and the cross-examination of Officer Juan,
defendant consistently advanced his theory that the victim had
lied about the way the assault had occurred. Defendant did not
subpoena and call his own witnesses, but this was not due to
incapacity. Rather, defendant made the decision to prioritize a
speedy trial over accepting the assistance offered by the trial
court.
The trial record reflects that defendant “was capable of
performing the basic tasks of self-representation without the
assistance of counsel.” (People v. Miranda (2015)
236 Cal.App.4th 978, 989 (Miranda).) In denying defendant’s
motion for a new trial, the trial court explained that it “did not
see any indication of severe mental illness to the point where the
defendant could not carry out the basic tasks needed to present a
defense.” Instead, the court saw common mistakes made by

26
“almost all” individuals representing themselves, which caused
defendant to become “frustrated or nonresponsive or make
unsolicited statements.”
Defendant may have been “inarticulate and ineffective[,]”
but “that is no doubt the norm in many self-represented cases,
not the exception.” (Miranda, supra, 236 Cal.App.4th at p. 989.)
His deficiencies at trial do not appear to be the result of mental
incompetence but rather choice, inexperience, frustration, or
anger. The trial court did not err by permitting defendant to
represent himself.
II. Prior Out-of-State Convictions
Defendant argues, and the People concede, that there was
insufficient evidence to support the trial court’s finding that the
five prior out-of-state convictions qualified as serious felonies
within the meaning of the Three Strikes law or the section 667,
subdivision (a) enhancement.
A. Background
The information alleged that defendant had previously
suffered the following out-of-state convictions, which qualified as
serious felonies within the meaning of the both the Three Strikes
law and the section 667, subdivision (a) enhancement because
they included all elements of California’s crime of robbery: (1) a
December 8, 1999, conviction in Florida; (2) an August 8, 2001,
conviction in Florida; (3) an April 9, 2003, conviction in Florida;
(4) a September 30, 1988, conviction in Illinois; and (5) another
September 30, 1988, conviction in Illinois. The information did
not identify any Florida or Illinois statutes in relation to the
alleged prior convictions.
At trial, the People introduced several exhibits to prove the
prior convictions. These included certified printouts from the

27
California Law Enforcement Telecommunications System
(CLETS) reflecting defendant’s criminal history in Florida and
Illinois and various court documents from those states.
On July 15, 2019, the trial court stated that it had reviewed
the People’s exhibits and had “determined that the defendant is
the person named therein and that the out-of-state prior
convictions adhere to the elements of the corresponding
California crime.” The court further noted that it was incumbent
on the jury “to determine if the defendant suffered these prior
convictions based on the exhibits presented.”
B. Relevant law
“‘Various sentencing statutes in California provide for
longer prison sentences if the defendant has suffered one or more
prior convictions of specified types.’ [Citation.] A prominent
example is a conviction of a ‘serious felony’ as defined
in . . . section 1192.7, subdivision (c).” (People v. Avery (2002)
27 Cal.4th 49, 53 (Avery).) As relevant here, serious felonies
include robbery (§ 1192.7, subd. (c)(19)), attempted robbery
(§ 1192.7, subds. (c)(19) & (39)), “any felony in which the
defendant personally uses a firearm” (§ 1192.7, subd. (c)(8)), and
“any felony in which the defendant personally used a dangerous
or deadly weapon” (§ 1192.7, subd. (c)(23)).
“Conviction of a serious felony has substantial sentencing
implications under the ‘Three Strikes’ law [citation] and also
under section 667, subdivision (a)(1), which mandates a five-year
sentence enhancement for each such conviction.” (Avery, supra,
27 Cal.4th at p. 53.)9

9 Under the Three Strikes law, prior convictions for “violent
felony offenses” are also subject to increased punishment. (§ 667,
subd. (b); see also § 667.5, subd. (c) [defining violent felony].)

28
 “To qualify as a serious felony, a conviction from another
jurisdiction must involve conduct that would qualify as a serious
felony in California.” (Avery, supra, 27 Cal.4th at p. 53.)
However, “if the foreign law can be violated in different ways,
and ‘“the record does not disclose any of the facts of the offense
actually committed, the court will presume that the prior
conviction was for the least offense punishable under the foreign
law.” [Citation.]’ [Citations.]” (People v. Denard (2015)
242 Cal.App.4th 1012, 1024 (Denard).)
“[T]he [trial] court’s factfinding role regarding prior
convictions [is] . . . ‘limited to identifying those facts that were
established by virtue of the [prior] conviction itself—that is, facts
the jury was necessarily required to find to render a guilty
verdict, or that the defendant admitted as the factual basis for a
guilty plea.’ [Citations.]” (In re Milton (2022) 13 Cal.5th 893, 903
(Milton); see also People v. Gallardo (2017) 4 Cal.5th 120, 136.)
We review for substantial evidence a trial court’s finding
that a prior out-of-state conviction is a serious felony under
California law. (See People v. Delgado (2008) 43 Cal.4th 1059,
1067; Denard, supra, 242 Cal.App.4th at pp. 1023–1026.)
C. Analysis
We agree with the parties that the evidence was
insufficient to support the trial court’s finding that the five prior

There is some overlap between the definitions of serious and
violent felonies. (See §§ 667, subd. (c), 1192.7, subd. (c).) For
example, “robbery is both a serious and violent felony offense.
(§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).)” (People v. Montalvo
(2019) 36 Cal.App.5th 597, 624.) The information, however, only
alleged that the five prior out-of-state convictions were serious
felonies—not violent felonies—within the meaning of the Three
Strikes law.

29
out-of-state convictions—three from Florida and two from
Illinois—qualified as serious felonies within the meaning of the
Three Strikes law or section 667, subdivision (a).
1. The 1999 and 2003 Florida convictions
The exhibits introduced at trial by the People reflect that
defendant was convicted in Florida of attempted robbery (Fla.
Stat., §§ 812.13(2)(c), 777.04) following a plea of nolo contendere
in 1999 and of robbery (Fla. Stat., §§ 812.13(2)(c)) following a
guilty plea in 2003.
In Florida, robbery is defined as “the taking of money or
other property which may be the subject of larceny from the
person or custody of another, with intent to either permanently or
temporarily deprive the person or the owner of the money or
other property, when in the course of the taking there is the use
of force, violence, assault, or putting in fear.” (Fla. Stat.
§ 812.13(1), italics added.) Thus, under Florida law, a robbery
can be committed with the intent to only temporarily deprive a
victim of property.10 In contrast, “[t]he California offense of
robbery (§ 211) . . . is a specific intent crime that requires ‘“the
intent to permanently deprive the person of the property.”’
[Citation.]” (Milton, supra, 13 Cal.5th at p. 900, italics added.)
Defendant could have been convicted of robbery or
attempted robbery in Florida for conduct that would not have
constituted a robbery or attempted robbery in California. (See

10 “Theoretically, [a Florida] jury could find that the slapping
of the cell phone from the victim’s hand or the rummaging
through the victim’s purse technically constituted a taking [as
required to prove robbery] under the theory that it temporarily
deprived the victim of her property.” (Thermidor v. State of
Florida (Fla. Dist. Ct. App. 2014) 146 So.3d 95, 97, fn. 1.)

30
Milton, supra, 13 Cal.5th at p. 900.) Nothing before the trial
court demonstrated that defendant committed the Florida
offenses with the intent to permanently—as opposed to
temporarily—deprive the victims of property.
2. The 2001 Florida conviction
The record indicates that defendant was convicted in
Florida of armed robbery (Fla. Stat., § 812.13(2)(b), 775.087)
following a plea of guilty in 2001. According to the charging
document, defendant “carried a deadly weapon, to wit: metal bar
and/or fire extinguisher” (capitalization omitted) during the
commission of the robbery.
As discussed above, the fact that defendant was convicted
of robbery in Florida, by itself, does not provide sufficient
evidence that the conviction qualifies as a serious felony. Nor
does the fact that defendant was convicted of armed robbery in
Florida provide sufficient evidence that he was convicted of a
“felony in which the defendant personally used a dangerous or
deadly weapon” (§ 1192.7, subd. (c)(23), italics added) that would
qualify as a serious felony. That is because, under Florida law,
“the statutory element which enhances punishment for armed
robbery is not the use of the deadly weapon, but the mere fact
that a deadly weapon was carried by the perpetrator. The victim
may never even be aware that a robber is armed, so long as the
perpetrator has the weapon in his possession during the offense.”
(State v. Baker (Fla. 1984) 452 So.2d 927, 929.)
3. The 1988 Illinois convictions
The CLETS printout of defendant’s Illinois criminal history
indicates that, in 1988, defendant was convicted of armed robbery
(720 Ill. Comp. Stat. 5/18-2(a)) and “ARMED ROBBERY/DISCH
F/ARM/HARM” (720 Ill. Comp. Stat. 5/18-2(a)(4)) in that state.

31
 Robbery in California “is a specific intent crime that
requires ‘“the intent to permanently deprive the person of the
property.”’ [Citation.] Illinois robberies are general intent
crimes, and the definitions of robbery and armed robbery in
Illinois do not include this specific intent element. [Citations.]”
(Milton, supra, 13 Cal.5th at p. 900; see also People v. Jamison
(Ill. 2001) 756 N.E.2d 788, 801 [in Illinois, “armed robbery is a
general intent crime”].) Thus, “the Illinois robbery statutes do
not contain all the elements of California’s robbery statute[.]”
(Milton, supra, at p. 900.)
The version of the Illinois robbery statute in effect when
defendant was convicted provided, in relevant part: “A person
commits armed robbery when he or she violates [the Illinois
robbery statute] while he or she carries on or about his or her
person, or is otherwise armed with a dangerous weapon.” (Ill.
Stat. 1988, ch. 38, par. 18-2(a).) Thus, defendant could have been
convicted of armed robbery in Illinois if he merely carried a
dangerous weapon during the course of the robbery. This would
not constitute a “felony in which the defendant personally used a
dangerous or deadly weapon” and, thus, a serious felony in
California. (§ 1192.7, subd. (c)(23).)
Finally, the CLETS printout indicates that defendant
suffered a conviction under subdivision (a)(4) of the Illinois armed
robbery statute (720 Ill. Comp. Stat. 5/18-2(a)(4)). That
subdivision provides that a person who violates the Illinois
robbery statute commits armed robbery when “he or she, during
the commission of the offense, personally discharges a firearm
that proximately causes great bodily harm, permanent disability,
permanent disfigurement, or death to another person.” (720 Ill.
Comp. Stat. 5/18-2(a)(4).) A conviction under this subdivision

32
would appear to qualify as a serious felony in California as either
a “felony in which the defendant personally uses a firearm”
(§ 1192.7, subd. (c)(8)) or a “felony in which the defendant
personally used a dangerous or deadly weapon” (§ 1192.7,
subd. (c)(23)). But, as defendant correctly observes, it is
impossible that he suffered a conviction in 1988 under
subdivision (a)(4) of the Illinois armed robbery statute because
that subdivision did not exist until 2000. (People v. Garcia
(Ill. 2002) 770 N.E.2d 208, 210 (conc. opn. of Harrison, C. J.).)
4. Remedy
Based on the foregoing, there is a lack of substantial
evidence that any of the five prior out-of-state convictions
qualifies as a serious felony for the purpose of the Three Strikes
law or the section 667, subdivision (a) enhancement. The true
findings on the strikes and section 667, subdivision (a)
enhancements must be reversed.
On remand, the people may retry the strike and
section 667, subdivision (a) enhancement allegations. (People v.
Strike (2020) 45 Cal.App.5th 143, 154 [“reversal of a true finding
on a prior conviction allegation does not prevent retrial of that
enhancement”]; People v. Cortez (1999) 73 Cal.App.4th 276, 284,
fn. 7 [“There is no double jeopardy bar to a retrial on a prior
conviction allegation in a noncapital sentencing proceeding”].)

33
 DISPOSITION
The true findings on the strikes and section 667,
subdivision (a) enhancements are reversed. The sentence is
vacated, and the case is remanded. On remand, the People may
retry the strike and section 667, subdivision (a) enhancement
allegations. If the People do not retry the allegations, or
following a retrial, the trial court shall conduct a full
resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
HOFFSTADT

34