Filed 5/16/23 P. v. Torrez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY ORDUNA TORREZ,

Defendant and Appellant.

F085501

(Super. Ct. No. F22903372)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Leanne Le Mon, 

Judge.

Stephanie L. Gunther, 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 and Sally 

Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Meehan, J. and Snauffer, J.
2.

Defendant Larry Orduna Torrez challenges the trial court’s finding of 

incompetence, arguing it is flawed because of the failure to order a second evaluation 

pursuant to Penal Code1section 1369, subdivision (a). Our review of the record provided 

to this court leads us to conclude there was no error on the part of the court in failing to 

order a second evaluation, and further that the finding of incompetence to proceed was 

supported by the record. We affirm the judgment. 

PROCEDURAL SUMMARY

On May 10, 2022, a felony complaint was filed alleging defendant committed 

one count of assault with a deadly weapon (§ 245, subd. (a)(1), a felony). The complaint 

further alleged defendant had two prior felony convictions pursuant to section 1203, 

subdivision (e)(4). During a hearing held one week later, defense counsel expressed 

doubts about defendant’s competence. The court then suspended proceedings and 

appointed a doctor to complete an evaluation of defendant’s competency. 

Although an initial hearing date had been scheduled for June 2022, delays due to 

defendant being placed into quarantine twice, resulted in a report not being available until 

September 2022. After summarizing defendant’s psychiatric history and the various 

psychological tests administered, Dr. Howard Terrell stated, “defendant presented as a 

paranoid, psychotic and irrational gentleman.” Terrell then offered his opinion defendant 

“suffers from a psychotic mental disorder, which renders him unable to assist his attorney 

in a rational manner for the preparation of a legal defense.” 

A hearing was eventually held on September 30, 2022, at which time defendant 

was present. The court received the report prepared by Terrell and asked if counsel was 

willing to stipulate to the report. Both defense counsel and the People answered in the 

affirmative. The court then found defendant to be incompetent based on Terrell’s report 

1 All further statutory references will be to the Penal Code. 
3.

and ordered a new evaluation to be prepared to help determine a proper placement for 

defendant at the next hearing. At this point, defendant asked to be heard and stated:

“If I may speak? I’m not sure how I failed that report to get a good 

report from the psych [be]cause, um, the questions that he asked were 

pretty basic questions like adding, you know, a number to another number 

and doubling it. I’m not sure what I did wrong as far as the report 

[be]cause I’m a pretty smart man. I mean, there’s nothing wrong with me 

at all. Just⸻I’m calm, humble. I don’t know what to do with, you know, 

to have failed that report from the⸻I don’t need medication. It 

doesn’t⸻I’m kind of surprised that that report came back like that. I don’t 

know.” 

In response, the court offered defendant an explanation on how the matter would now 

proceed:

“And what will happen, just so that I can explain it to you, and I’m 

re-reviewing my notations in the report as well as what ... Terrell noted, 

which he did state that you were not interested in any medication but that 

there appeared to be concerns regarding the interview he had with you and 

your ability to understand the criminal proceedings. What will happen is 

CONREP, which is mental health services, will review the reports to 

determine what they believe the appropriate placement would be. If there’s 

a determination that they don’t believe that you need placement in the state 

hospital for restoration, then they will let us know. I am not an expert when 

it comes to psychiatric disorders, so I consider the reports that are 

submitted. And it looks like based on the report that was submitted⸻and 

it’s not a matter of intelligence. You could be a genius and still have 

psychological issues that make you unable to understand the proceedings. 

So it’s more of a matter of ... Terrell’s assessment that he did not believe 

that you understood the proceedings.” 

Defendant’s response to this explanation was to express concern about having to take 

medication and the potential consequences if he refused. After defendant confirmed he 

would be seeing another doctor for the placement evaluation, he sought confirmation that 

he would not be penalized for refusing the medication before the next hearing. 

Defendant then made another statement to the court, not questioning the accuracy of the 

report, but attempting to explain his reasons for making certain statements within the 

report that he wanted investigated. When he was finished, the court asked defendant’s 
4.

attorney if he was willing to submit on the report, and the attorney stated he was. The 

court then reiterated its conclusion defendant was incompetent and lacked the ability to 

make decisions about medication. 

On November 4, 2022, the court ordered defendant be placed with the State 

Department of State Hospitals, for the purpose of regaining his competence, for a period 

not to exceed two years. The court also ordered that defendant could be involuntarily 

medicated for a period of up to one year. This appeal followed. 

DISCUSSION

Despite efforts to reinterpret the evidence submitted to the court on the issue of 

competency, defendant does not really challenge the sufficiency of the evidence 

supporting the trial court’s finding of incompetence. However, once a determination on 

competency is made, we review that determination for substantial evidence, “viewing the 

evidence in the light most favorable to th[e] determination.” (People v. Kirvin (2014) 

231 Cal.App.4th 1507, 1514.) We believe the evaluation submitted by Terrell provides 

substantial evidence supporting the court’s finding of incompetence. 

Defendant’s real challenge on appeal is that the court failed to order a 

second evaluation before making its finding on the issue of competence. Defendant 

states in his brief that he was not seeking a finding of incompetence by the trial court, and 

therefore, a second evaluation was required. The record reveals neither defendant nor his 

attorney ever made a specific statement to the court indicating an objection to a finding of 

incompetence. We must therefore consider whether the discussion defendant engaged in 

with the court about being forced to take medication and the reason he made certain 

statements during the evaluation process, triggered his statutory right to a second 

evaluation. 
5.

The relevant language governing this issue is found in section 1369, 

subdivision (a)(1):

“The court shall appoint a psychiatrist or licensed psychologist, and any 

other expert the court may deem appropriate, to examine the defendant. If 

the defendant or the defendant’s counsel informs the court that the 

defendant is not seeking a finding of mental incompetence, the court shall 

appoint two psychiatrists, licensed psychologists, or a combination thereof. 

One of the psychiatrists or licensed psychologists may be named by the 

defense and one may be named by the prosecution.”

“As a matter of due process, ‘[a] defendant may not be put to trial unless he “ ‘has 

sufficient present ability to consult with his lawyer with a reasonable degree of rational 

understanding ... [and] a rational as well as factual understanding of the proceedings 

against him.’ ” ’ ” (People v. Buenrostro (2018) 6 Cal.5th 367, 386.) However, case law 

has held that the language in section 1369 addressing the availability of a 

second evaluation reflects a statutory right rather than a constitutional one. (People v. 

Leelu (2019) 42 Cal.App.5th 1023, 1031.) Therefore, if defendant can show the trial 

court erred by not ordering a second evaluation, to prove it was prejudicial error 

justifying a reversal, defendant will be required to “demonstrate there is a reasonable 

probability that in the absence of the error he or she would have obtained a more 

favorable result.” (People v. Lightsey (2012) 54 Cal.4th 668, 699, citing People v. 

Watson (1956) 46 Cal.2d 818.) 

We do not believe defendant raised a sufficient objection to the trial court’s 

decision to evaluate his competence before proceeding with the criminal complaint, or 

during the process leading up to the hearing on competence, to trigger the statutory right 

for a second evaluation under section 1369, subdivision (a)(1). At no time before the 

hearing on competency did defendant raise any objections to the process of evaluating his 

competency. The discussion quoted above between defendant and the court during the 

competency hearing focused on the issue of medication and whether he would be forced 
6.

to be medicated. Defendant’s comments about why he made certain comments to the 

evaluator also do not evidence an objection to being found incompetent. 

A trial court is not required to seek a second evaluation on the off chance the 

defendant might be inferring he or she does not seek a finding of incompetence. (See 

People v. Lawley (2002) 27 Cal.4th 102,133.) Therefore, unless a defendant or 

defendant’s counsel expressly informs a court during this process that a defendant is not 

seeking a finding of incompetence, or evidence exists in the record supporting a 

conclusion the defendant would be opposed to a finding of incompetence, a trial court is 

not required to appoint a second mental health expert under section 1369, 

subdivision (a)(1). (People v. D’Arcy (2010) 48 Cal.4th 257, 281; see also People v. 

Leelu, supra, 42 Cal.App.5th at p. 1030 [while not objecting himself, defense counsel 

noted the evaluation showed defendant strenuously denied the existence of any present or 

past mental health symptoms or treatment].) The record in this appeal, including the 

evaluation prepared by Terrell, provided no such evidence, let alone an express request 

for a second evaluation. However, while we are confident in our conclusion, we also 

believe if the failure to order a second evaluation was error, defendant failed to 

demonstrate a reasonable probability existed that a second evaluation would have 

resulted in a different ruling. (People v. Lightsey, supra, 54 Cal.4th at p. 699.) 

DISPOSITION

The order finding defendant incompetent is affirmed.