Filed 2/11/21 P. v. McKenzie CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES DANIEL MCKENZIE,

Defendant and Appellant.

 B296803

 (Los Angeles County

 Super. Ct. No. MA074641)

 REDACTED

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Daviann L. Mitchell, Judge. Affirmed.

Jack T. Weedin, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Nancy Lii Ladner, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

A jury convicted Charles Daniel McKenzie of three counts 

of resisting an executive officer in the performance of his or her 

duty under Penal Code section 69.

1 The jury found true that in 

the commission of counts 2 and 3, McKenzie personally used a 

deadly or dangerous weapon, specifically, a screwdriver, as set 

forth in section 12022, subdivision (b)(1). The trial court 

sentenced him to three years in state prison.

McKenzie raises four challenges on appeal. First, he 

argues the trial court erred in declining to declare a doubt 

concerning his competence to stand trial. Second, he contends 

the trial court violated his right to due process by failing to 

instruct the jury that it should not speculate about his absence 

from the trial. Third, McKenzie argues that insufficient evidence 

supports the determination that he personally used a dangerous 

or deadly weapon. Finally, he asserts that the trial court erred in 

failing to modify the jury instructions to clarify that a 

screwdriver is not an inherently deadly or dangerous weapon. 

Finding no merit to his claims, we affirm.

FACTUAL BACKGROUND

On November 14, 2017, at approximately 3:00 p.m., Los 

Angeles County Sheriff’s Deputy Brandon Vanarsdale responded 

to a call about a person who was not breathing in front of a 

McDonald’s. When Deputy Vanarsdale arrived, he observed a 

person, who appeared to be a transient, lying on the sidewalk 

with his head covered by clothing. Deputy Vanarsdale asked the 

person whether he was “okay.” In response, McKenzie sprang to 

his feet and began to yell, “fuck you” and “go away.” McKenzie 

1 All unspecified statutory references are to the Penal Code.
3

exhibited several indicators that he might attack, including his

stance, and his acts of shuffle-stepping towards the deputy and 

holding his hands above his hips. Afraid for his safety, Deputy 

Vanarsdale pulled out his taser and asked McKenzie to step back. 

McKenzie responded by gesturing with his middle finger on both 

hands and telling the deputy, “Fuck you. Put that away.” 

Deputy Vanarsdale told McKenzie, “If you come at me, I’m [going 

to] tase you.” McKenzie then ran out into the number two lane of 

a busy street with three lanes of traffic in each direction. Cars 

swerved to avoid hitting McKenzie, and Deputy Vanarsdale

called for assistance.

Upon arriving separately at the scene, Deputy Michael

Gelardo and Sargent Thomas Inocente blocked traffic with their 

squad cars. Each repeatedly asked McKenzie to get out of the 

street. McKenzie refused and yelled, “Fuck you. I don’t have to 

listen.” Sargent Inocente determined McKenzie should be 

detained for his safety and the safety of others, and asked 

McKenzie to place his hands behind his back. McKenzie 

“shuffl[ed] with his clothes,” reached into his pocket with his 

right hand, and pulled out objects that he held in a fist.

Sargent Inocente observed three short, metal, grey spikes 

protruding from McKenzie’s fist. Deputy Vanarsdale observed 

McKenzie with his right fist clenched in front of his belly and a 

shiny object protruding one to two inches out of his fist. Deputy 

Vanarsdale told McKenzie to put “it” down. McKenzie did not do 

so. Instead, he took one or two steps towards Sargent Inocente 

and Deputy Gelardo, who were about three to four steps away 

from him. Sargent Inocente ordered Deputy Vanarsdale to tase 

McKenzie, which Vanarsdale did. McKenzie fell to the ground. 

Three objects were recovered from the spot where McKenzie fell: 
4

a four-inch flathead metal screwdriver; a pen cap; and a Batman 

toy.

Sargent Inocente reported that during the encounter, 

McKenzie had a “crazed look” on his face and his clothes were 

disheveled.

At trial, both Deputy Vanarsdale and Sargent Inocente 

testified that in their experience, being stabbed with an object 

like a screwdriver could cause profuse bleeding or traumatic 

injury.

PROCEEDINGS RELATED TO COMPETENCE

TO STAND TRIAL

A. Dr. George R. Elias Finds McKenzie Competent to 

Stand Trial

A few days after his arrest, on November 16, 2017, 

McKenzie’s trial counsel raised a doubt as to McKenzie’s mental 

competence to stand trial pursuant to section 1368. The trial 

court transferred the matter to the mental health court, where 

forensic psychiatrist Dr. George R. Elias was appointed to 

evaluate McKenzie.

2

[ REDACTED ]

2 The trial court sealed many documents relevant to the 

competency proceedings. In accordance with the California Rules 

of Court, the sealed documents were filed under seal in this court. 

(Cal. Rules of Court, rule 8.46(b).) We have filed both a redacted 

and a sealed opinion. The redacted opinion is part of the public 

record and does not include information that is only contained in 

the sealed portion of the record. Our unredacted, sealed opinion, 

is filed concurrently with the redacted opinion.
5

Dr. Elias submitted his report to the trial court on or about 

January 21, 2018. On January 25, 2018, the trial court found 

McKenzie competent to stand trial.

B. Dr. Phani M. Tumu Finds McKenzie Competent to 

Stand Trial

On February 8, 2018, McKenzie’s counsel again declared a 

doubt. The trial court appointed forensic psychiatrist Dr. Phani

M. Tumu to evaluate McKenzie.

[ REDACTED ]

On April 2, 2018, the trial court found McKenzie mentally 

competent to stand trial. The matter was returned from the 

mental health court and criminal proceedings were reinstated.

C. McKenzie’s Pretrial Behavior in the Courtroom, 

April 26, 2018 through June 21, 2018

On April 26, 2018, McKenzie appeared at a preliminary 

hearing. The trial court observed McKenzie was “extremely 

disruptive and display[ed] inappropriate behavior while in the 

courtroom. (Yelling, cursing, resisting). [¶] . . . [¶] The court 

indicate[d] continued behavior such as what [McKenzie] 

display[ed] today will constitute him voluntarily absenting 

himself from future proceedings.” Similarly, on May 24, 2018, 

McKenzie refused to come into the courtroom and could be heard

yelling in the lock-up cell.

On June 19, 2018, the matter was transferred to Judge 

Daviann Mitchell for trial. On June 21, 2018, McKenzie was 

“disruptive by continually speaking over the court.” Defense 

counsel raised a doubt as to McKenzie’s mental competency. The 

court concurred and appointed Dr. Kory Knapke to evaluate 

McKenzie.
6

D. Dr. Kory Knapke Finds McKenzie to Be Competent 

and Malingering

Dr. Knapke submitted a report to the trial court on July 11, 

2018. In evaluating McKenzie’s competence, Dr. Knapke relied 

on four prior section 1368 reports he had prepared relating to 

McKenzie, dated between December 2014 and December 2016; 

the reports by Dr. Elias and Dr. Tumu; the felony complaint; the 

incident reports; the probation officer’s report; and his July 10, 

2018, interview of McKenzie. Dr. Knapke concluded that 

McKenzie was competent to stand trial and was malingering.

[ REDACTED ]

On July 11, 2018, the trial court concluded McKenzie was 

mentally competent to stand trial within the meaning of section 

1368.

E. McKenzie’s Pre-trial Behavior Following Dr. 

Knapke’s Report

September 18, 2018, through January 9, 20193

On September 18, 2018, a different deputy public defender 

appeared on behalf of McKenzie. As described below, over the 

course of the next four months, the defense declared a doubt as to 

McKenzie’s competence twice. Relying on the opinions of the 

forensic psychiatrists who evaluated McKenzie as well as the 

3 During proceedings on August 8, 2018, September 4, 

2018, September 5, 2018, September 18, 2019, and October 31, 

2018, McKenzie screamed in the courtroom or in lockup. The 

trial court found McKenzie to have voluntarily absented himself 

from proceedings on these days. As the trial court observed in 

one instance, “This is a pattern of conduct . . . . [¶] He is capable 

of conducting himself just fine in other areas. And as soon as we 

bring him into the courtroom, he starts shouting.”
7

trial court’s own observations, the trial court declined to declare a 

doubt in each instance.

During proceedings on October 2, 2018, and November 14, 

2018, McKenzie was disruptive in the courtroom and in lockup, 

yelling out of turn that he did not attack the police and needed 

his freedom. Defense counsel declared a doubt as to McKenzie’s 

competence on each of those days, but acknowledged that because 

he was new to the matter, he did not know if McKenzie’s behavior 

was different from that previously observed and evaluated. 

Nevertheless, defense counsel explained there was further 

deterioration in his communication with McKenzie.

On both occasions the court declined to declare a doubt 

concerning McKenzie’s competence, relying on the psychiatrists’ 

findings that McKenzie’s actions were behavioral and not a result 

of mental illness, as well as the trial court’s own observations 

that McKenzie seemed oriented to time and place and understood 

the charges.

On January 9, 2019, defense counsel advised the trial court 

that McKenzie did not want him as his attorney. The trial court 

directed the bailiff to explain to McKenzie that if he wanted to 

make such a request, he needed to come into the courtroom. 

McKenzie told the bailiff, “ ‛No. I already did that. That doesn’t 

work.’ ” The trial court denied the Marsden4 motion because 

there was no basis provided to support it.

4 Under California law, a criminal defendant may make a 

motion for substitute counsel pursuant to People v. Marsden

(1970) 2 Cal.3d 118.
8

February 19, 2019

On February 19, 2019, McKenzie was present in the 

courtroom and yelled about the events surrounding his arrest, 

including that he did not resist arrest. When the trial court 

stated it would speak with McKenzie’s attorney, McKenzie 

replied, “I don’t want him as my public defender. He is working 

with you to help keep me here and I have been here all this time.

And I keep telling you and telling you . . . I did not attack the 

police officer.” After McKenzie was removed from the courtroom, 

defense counsel explained that he had tried to communicate a 

three-year plea offer to McKenzie, which, following a counteroffer, might have become “in essence a time served offer,” but 

that McKenzie would not provide a yes or no answer. Defense 

counsel renewed his concern that McKenzie was not competent to 

stand trial because he could not communicate with counsel and 

was acting against his own best interest.

The trial court disagreed that McKenzie’s refusal to accept 

the plea offer constituted evidence that he was acting irrationally 

against his own interest. Further, the trial court observed that, 

“I think it is his personality getting in the way. . . . When he 

comes in, he seems very aware of where he is, who people are, 

and what their functions are. And he’s just angry. . . . [¶] . . . 

[W]e have had two [sic] experts, both of whom are consistent and 

unanimous in their opinion that he is malingering.” Accordingly, 

the trial court declined to declare a doubt.

F. Dr. Jack Rothberg Determines McKenzie is Not 

Competent

The defense hired forensic psychiatrist Dr. Jack Rothberg 

to evaluate McKenzie’s competence. Based on the information 
9

available to him, Dr. Rothberg concluded McKenzie was not 

competent to stand trial.

[ REDACTED ]

G. The Trial Court Declines to Declare a Doubt Based 

on Dr. Rothberg’s Report

At a February 25, 2019, hearing, defense counsel submitted 

Dr. Rothberg’s report. He declared a doubt as to McKenzie’s 

competence on the ground that he was “not able to cooperate” or 

have meaningful communications with counsel.

Based on the opinions of Drs. Elias, Tumu, and Knapke, 

and the trial court’s own observations, the trial court responded

that “[i]t’s not that [McKenzie] is unable. It’s that he is 

unwilling. We get these reports every time he is in the 

courthouse. . . . He is just fine downstairs. He is perfectly calm. 

He can and does control himself. It’s the minute we bring him 

into court that he puts on this show.” Further, each time 

McKenzie yells in court, he is “incredibly coherent,” expressing 

his innocence. Thus, McKenzie “is oriented as to time and place. 

He knows why he is here. He knows who [defense counsel is]. He 

is upset about the charges. He is disputing the charges.” Thus, 

the trial court found McKenzie’s lack of cooperation was a 

personality issue, not a mental health issue, and further observed 

that Dr. Knapke found that McKenzie was malingering.

The trial court disagreed with the basis on which Dr. 

Rothberg determined McKenzie was incompetent. In particular, 

the trial court found Dr. Rothberg’s statement that the facts 

giving rise to McKenzie’s arrest implied mental illness was

conclusory. Additionally, the trial court found it “instructive” 

that Dr. Knapke had a direct interaction with McKenzie, while

Dr. Rothberg did not.
10

The trial court then attempted to speak to McKenzie in the 

courtroom. However, each time the court began to speak, 

McKenzie yelled. The trial court observed, “There would be a 

moment of silence and every time I would try to speak is when he 

would start back up again. It seemed to be a concerted effort on 

his part to interrupt me every time I tried to speak. There [were] 

periods of silence, no one was talking, and I would gauge it and 

start talking and he [would] yell again.” As before, McKenzie 

yelled that he wanted his freedom, he did not attack anyone, and 

he did not resist arrest.

The trial court declined to declare a doubt, citing the 

proposition that “[w]hen a competency hearing has already been 

held and the defendant was found competent to stand trial, the 

trial court is not required to conduct a second competency 

hearing unless it is presented with a substantial change in 

circumstances or with new evidence that gives a rise to a serious 

doubt about the validity of the competency finding.” (See People 

v. Marshall (1997) 15 Cal.4th 1, 33.)

H. Trial Proceedings

On February 28, 2019, the matter was transferred for a 

jury trial back to Judge Mitchell, before whom McKenzie had 

appeared on April 26, 2018, and June 19, 2018.

On March 4, 2019, the court conducted a hearing on a

defense motion to continue the trial on the ground that McKenzie 

was not competent. McKenzie appeared in the courtroom and 

began to yell. The trial court observed, “It’s clear to me from his 

conduct that he is totally aware of everything that is going on.
11

[¶] . . . [¶] As soon as I stop talking, he stops.[5] And the record 

will reflect that the court reporter is transcribing my statements 

and it appears at this point—and he is continuing to scream ‘I did 

not attack nobody.’ He is looking directly at me. It is clear to me 

from his conduct that he knows exactly what is going on. That he 

is making an effort to get excused from the courtroom.” The 

record reflects that McKenzie yelled, “You are not fucking 

listening,” in response to the trial court’s statement.

Outside of McKenzie’s presence, the trial court reviewed 

McKenzie’s file relating to his competence, including the reports 

by Drs. Elias, Tumu, and Knapke. The court found that 

McKenzie’s behavior was consistent with the observations of the 

three psychiatrists, who each found McKenzie competent; that 

nothing had changed; and that another court had reviewed and 

ruled on Dr. Rothberg’s report. Concerning Dr. Rothberg’s report, 

the trial court discounted its credibility because Dr. Rothberg did 

not interview McKenzie or review the other doctors’ reports. The 

court observed the content of McKenzie’s rantings was rational 

and signified he understood the proceedings. The court concluded 

McKenzie had a behavioral problem, denied the motion to 

continue the trial, and declined to declare a doubt.

5 McKenzie behaved similarly on March 5, 2019. As 

observed by the trial court: “As evidenced by [McKenzie’s] 

conduct, I waited approximately 60 to 90 seconds in silence, and 

he stayed silent looking at me, and as soon as I started to speak, 

he started to scream again. Again, that’s evidence . . . consistent 

with [opinions of] the mental health professionals with his 

manipulation of the system and his effort to be removed from the 

courtroom, which he has now accomplished, because he’s 

disrupting all the proceedings.”
12

That afternoon, as jury selection commenced, the trial court 

advised the prospective jurors that, “as you can see, the 

defendant is not present in court. And I’m going to ask you to 

please take―and tell you please do not speculate as to why he is 

not here.”

Trial resumed the next day, on March 5, 2019. Before the 

jury was brought in, McKenzie again engaged in disruptive 

behavior, and the trial court ordered him removed from the 

courtroom.

On March 6, 2019, McKenzie was again brought into 

courtroom and began to scream. After the trial court ordered 

McKenzie to stop screaming, he responded, “ ‛I don’t have to do 

what you tell me to do.’ ” Later that day, the People concluded 

their case, and McKenzie was asked whether he wanted to 

testify. McKenzie did not yell at first, but gradually became 

louder as the conversation went on, stating that he did not 

assault the deputies. The trial court observed, “I do believe that 

he, at first, was speaking more in a rational manner initially 

when you tried to talk to him. I do believe he hears and 

understands what is said to him by the statements that he makes 

in court, and that he understood that he has a right to testify and 

has elected to act out and scream and yell as opposed to answer 

directly [the defense counsel’s] questions.” Defense counsel 

elected to not have McKenzie testify. McKenzie was never in the 

courtroom at the same time as the jury.

On March 7, 2019, the jury returned its verdict, convicting 

McKenzie of three counts of resisting an officer based on his 

actions toward Deputy Vanarsdale, Deputy Gelardo, and Sargent 

Inocente. As the trial court read the verdict to McKenzie, he

screamed over the trial court each time the court spoke.
13

I. Sentencing Proceedings

Following the reading of the verdict, the trial court 

explained it would consider probation if there were a manner in 

which McKenzie could be safely monitored and receive mental 

health treatment. The trial court observed, “I do think he has an 

issue. Whether he’s malingering is a totally different issue. 

Whether he’s manipulative is also a separate issue. I think 

there’s an underl[ying] mental health issue.” The trial court 

invited the parties to address the issue in their sentencing 

memoranda.

On March 19, 2019, defense counsel filed a motion for new 

trial, arguing, in part, that McKenzie was not competent at the 

time of trial.

On March 20, 2019, defense counsel advised the court that 

the jail’s psychiatric social worker sought to place McKenzie 

under an Lanterman-Petris-Short (LPS) conservatorship because 

he was gravely disabled. He provided the court with a letter from 

the sheriff’s department, which noted that McKenzie 

“ ‘continue[d] to be uncooperative during his psychiatric 

assessments . . . isolates and has not participated for 

programming for about a month. [¶] Mr. McKenzie continues 

with poor insight and judgment due to his current mental health 

presentation and mental health history. The client appears he 

may benefit from LPS evaluation due to the grave disability.’ ” 

Accordingly, defense counsel again declared a doubt.

The trial court declined to initiate a competency hearing, 

observing that the letter was not from a psychiatric social 

worker. It noted that being “gravely disabled” for purposes of a 

conservatorship is not the same as being incompetent. The court 

stated, “I recognize he’s noncompliant, and he has a personality 
14

disorder which has been diagnosed [by] at least two mental 

health professionals, which makes him act out in the manner 

that he does, but it doesn’t have to do with whether he 

understands the proceeding and what is going on here. It’s how 

he responds to that information. So, I will not declare a doubt.”

The sentencing hearing was conducted on March 26, 2019. 

A representative from the Department of Mental Health (DMH) 

appeared and advised the trial court that she had reviewed 

McKenzie’s DMH records.

[ REDACTED ]

Defense counsel revisited Dr. Rothberg’s report. In 

response, the trial court observed it did not give weight to the

report because defense counsel did not provide Dr. Rothberg 

“with all the information to make an informed decision,” such as 

the DMH records or the report from Dr. Knapke. The court 

continued, “[N]ot to mention [Dr. Rothberg] has never even 

spoken with [McKenzie] . . . . That’s one of the reasons I did not 

accept his report in the past.”

Before bringing McKenzie into the courtroom, the trial 

court noted that for 45 minutes the court had not detected any 

sound coming from the location where McKenzie was waiting. A 

short time later, McKenzie was brought into the courtroom. He 

remained quiet, but as soon as the judge took the bench, he began 

to scream. The court noted that when it turned to discussing the 

evidence against McKenzie, McKenzie ceased his “mantra of ‘you 

need to release me and stop abusing me,’ ” to state, “You are 

twisting the truth to what will help you and not me.”

The trial court denied the motion for new trial and declined 

to find McKenzie incompetent. The court sentenced him to three 

years in state prison. McKenzie filed a timely notice of appeal.
15

DISCUSSION

A. Competency Proceedings

McKenzie argues that on February 19, 2019, February 25, 

2019, and during sentencing in March 2019, he presented the 

trial court with evidence upon which a doubt should have been 

declared as to his competence. Throughout his briefs, McKenzie 

emphasizes that mental health can change over time and that the 

instances in which his trial counsel raised a doubt occurred 

several months after the last competency finding on July 11, 

2018. However, in each instance, McKenzie’s behavior was the 

same as it had been at the time of the prior competency hearings. 

As we explain, McKenzie failed to demonstrate a substantial 

change of circumstances or present competent, new evidence that 

cast a serious doubt on the validity of the prior competency 

findings.

Legal Framework and Standard of Review

A court may not try a defendant who, as a result of a 

mental disorder or developmental disability, “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); see U.S. Const., 14th Amend.; Cal. Const., 

art. I, §§ 7, 15.) When a trial court is presented with substantial 

evidence of a defendant’s incompetence to stand trial, the court 

must initiate competency proceedings. (§ 1368, subd. (a); People 

v. Pennington (1967) 66 Cal.2d 508, 518, discussing Pate v. 

Robinson (1966) 383 U.S. 375, 385-386 [86 S.Ct. 836, 15 L.Ed.2d 

815].) This is so “even if the court’s own observations lead it to 

believe the defendant is competent.” (People v. Jones (1991) 53 

Cal.3d 1115, 1153.)
16

“When a competency hearing has already been held and the 

defendant has been found competent to stand trial, however, 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.” (People v. Jones, supra, 53 

Cal.3d at p. 1153.) Further, “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.” (Ibid.)

“Whether there has been a change in circumstances 

sufficient to call for a new competency hearing is necessarily a 

fact-specific inquiry.” (People v. Rodas (2018) 6 Cal.5th 219, 235.) 

“We review for substantial evidence the trial court’s finding of no 

substantial change of circumstances or no new evidence casting 

serious doubt on the initial competency determination [citation].” 

(People v. Easter (2019) 34 Cal.App.5th 226, 243.) In this context, 

substantial evidence is that which “ ‘raises a reasonable or bona 

fide doubt’ ” as to competence. (Rodas, supra, at p. 231.)

We review the trial court’s “decision not to reinstate 

competency proceedings for an abuse of discretion. [Citation.]” 

(People v. Easter, supra, 34 Cal.App.5th at p. 243.)

The Trial Court Did Not Abuse Its Discretion in 

Declining to Declare a Doubt on February 19, 2019

On February 19, 2019, McKenzie failed to engage with his 

counsel when asked whether he would accept or reject a plea 

offer. McKenzie contends his behavior was against his own best 

interest, demonstrates incompetence, and should have caused the 

trial court to declare a doubt. We disagree.
17

McKenzie’s refusal to engage in meaningful dialogue, 

especially when such dialogue was likely to assist the trial court 

in moving forward in a timely and orderly manner, was not new. 

McKenzie exhibited the same behavior prior to the competency 

findings by Drs. Elias, Tumu, and Knapke.

[ REDACTED ]

Further, the evidence is insufficient to demonstrate that 

McKenzie’s refusal to discuss the plea offer was against his own 

best interest, or more importantly, so irrational as to indicate 

evidence of incompetence. Rather, his behavior was consistent 

with his repeated insistence that he was innocent.

[ REDACTED ]

McKenzie’s refusal to engage with his trial counsel also 

displays a rational tactic when considered in relation to his 

requests―including one made that same day―to be assigned a 

new public defender.

Indeed, the record contains several instances of McKenzie’s 

rational attempts to manipulate people to achieve his goals.

[ REDACTED ]

On January 9, 2019, when the trial court asked McKenzie 

to come into the courtroom to explain his reasons for wanting a 

new public defender, he told the bailiff that he “already did that,” 

and “[t]hat doesn’t work.” When the trial court indicated it would 

speak with defense counsel, McKenzie responded, “I don’t want 

him as my public defender.” When the trial court chose to ignore 

him and noted that the court reporter would transcribe the 

court’s statements, McKenzie screamed, “You are not fucking 

listening.”

Rather than establish incompetence, McKenzie’s refusal to 

engage with his public defender was consistent with a rational 
18

choice and with his prior noncooperative behavior. Substantial 

evidence supports the trial court’s conclusion that the events on 

February 19, 2019, were insufficient to constitute a change of 

circumstances or new evidence casting serious doubt on the prior 

competency findings. The court did not abuse its discretion in 

declining to initiate another competency hearing.

The Trial Court Did Not Abuse Its Discretion in 

Declining to Declare a Doubt on February 25, 2019

McKenzie next argues the trial court should have declared 

a doubt on February 25, 2019, based upon Dr. Rothberg’s opinion 

that McKenzie was incompetent to stand trial. However, Dr. 

Rothberg’s report was insufficient to demonstrate a change of 

circumstances or new evidence casting serious doubt on the prior 

competency findings. Thus, renewed competency proceedings 

were not required.

“ ‘ “The chief value of an expert’s testimony in this field, as 

in all other fields, rests upon the material from which his opinion 

is fashioned and the reasoning by which he progresses from his 

material to his conclusion; . . . it does not lie in his mere 

expression of conclusion.” . . . [Citation.] In short, “Expert 

evidence is really an argument of an expert to the court, and is 

valuable only in regard to the proof of the facts and the validity of 

the reasons advanced for the conclusions.” . . . [Citations.]’ 

[Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 132; see 

People v. Pennington, supra, 66 Cal.2d at p. 519 [“If a psychiatrist 

or qualified psychologist [citation], who has had sufficient 

opportunity to examine the accused, states under oath with 

particularity that in his professional opinion the accused is 

[incompetent to stand trial] . . . , the substantial-evidence test is 

satisfied.”].)
19

Here, Dr. Rothberg’s sources of information and reasoning 

were inadequate. Dr. Rothberg did not interview McKenzie and

did not review the section 1368 reports by the three other 

psychiatrists.

Rather, Dr. Rothberg based his opinion on a review of the 

jail’s medical records. While such a review certainly provided 

some value, the equivocal nature of many of the statements in 

Dr. Rothberg’s report calls into question whether those records 

provided sufficient information.

[ REDACTED ]

In declining to declare a doubt, the trial court also relied on 

its own observations that McKenzie was “incredibly coherent,” 

and “is oriented as to time and place.” Relying on People v. 

Pennington, supra, 66 Cal.2d at p. 518, McKenzie argues the trial 

court must hold competency proceedings “ ‘[n]o matter how 

persuasive other evidence—testimony of prosecution witnesses or 

the court’s own observations of the accused—may be to the 

contrary.’ ” However, the prohibition against a trial court relying 

on its own observations applies to initial competency proceedings. 

When a defendant has been found competent, the trial court may 

rely on its own observations in determining whether there has 

been a change in circumstances. (People v. Jones, supra, 53 

Cal.3d at p. 1153.)

Our high court’s harmonization of Pennington and Jones in 

People v. Rodas, supra, 6 Cal.5th at p. 234, supports this result. 

The Rodas court explained that Jones “does not . . . alter or 

displace the basic constitutional requirement of . . . [Pennington], 

which require[s] the court to suspend criminal proceedings and 

conduct a competence hearing upon receipt of substantial 

evidence of incompetence even if other information points toward 
20

competence. The effect of the Jones rule is simply to make clear 

that the duty to suspend is not triggered by information that 

substantially duplicates evidence already considered at an 

earlier, formal inquiry into the defendant’s competence; when 

faced with evidence of relatively minor changes in the defendant’s 

mental state, the court may rely on a prior competency finding 

rather than convening a new hearing to cover largely the same 

ground.” (People v. Rodas, supra, 6 Cal.5th at pp. 234-235.)

As described above, substantial evidence supports the trial 

court’s finding that Dr. Rothberg’s report was conclusory and 

insufficient to cast serious doubt on the prior three findings of 

competence. Coupled with the trial court’s own observations of 

McKenzie’s behavior, the trial court did not err in declining to 

declare a doubt based on Dr. Rothberg’s report.

The Trial Court Did Not Abuse Its Discretion in 

Declining to Declare a Doubt in March 2019

McKenzie contends that during the sentencing phase, the 

trial court was presented with “new and substantial evidence” of 

McKenzie’s incompetence “from [McKenzie’s] trial counsel, from 

the [DMH] [representative], and [from McKenzie’s] county jail 

medical records.” In each instance, however, the evidence failed 

to meet the standard required for the initiation of renewed 

competency proceedings.

First, the trial court reviewed a letter from the sheriff’s 

department indicating that an LPS conservatorship was being 

sought for McKenzie.6 As the trial court correctly observed, the 

qualifications for an LPS conservatorship are not equivalent to 

6 A copy of this letter is not included in the appellate 

record.
21

those for incompetence under section 1368. Although an LPS 

conservatorship is available to those who are mentally 

incompetent to stand trial, other bases exist for such 

conservatorships. (See Welf. & Inst. Code, § 5008, subd. (h) 

[defining persons who are gravely disabled for purposes of an 

LPS conservatorship].) There was no evidence that a 

conservatorship was being explored for McKenzie on the ground 

that he was mentally incompetent as defined in the Penal Code, 

and counsel did not provide any further evidence or argument on 

this point in the trial court or on appeal.

Second, trial counsel advised the court on two occasions in 

March 2019 that McKenzie would not speak with him. As 

discussed above, however, such behavior was entirely consistent 

with the behavior McKenzie exhibited prior to the competency

findings: a volitional decision to not cooperate.

Third, McKenzie argues the DMH representative provided 

evidence that compelled the trial court to declare a doubt. 

However, the contrary is true. The information disclosed by the 

DMH representative did not demonstrate that McKenzie was 

unable to understand the proceedings and could not assist 

defense counsel.7

Fourth, during the March 26, 2019, sentencing hearing, 

McKenzie presented the trial court with 200 pages of jail medical 

records for the trial court to review. On appeal, McKenzie argues 

that these “records are replete with evaluations from 

psychiatrists and psychologists that [he] suffers from 

schizophrenia.”

[ REDACTED ]

7 [ REDACTED ]
22

Moreover, a diagnosis of schizophrenia does not necessarily 

establish that a defendant is incompetent to stand trial. (See,

e.g., People v. Blacksher (2011) 52 Cal.4th 769, 798 [“Although 

[the doctor] believed defendant suffered from paranoid 

schizophrenia, he concluded defendant remained ‘sufficiently in 

contact with reality to be considered mentally competent to stand 

trial.’ ”]

We conclude there was insufficient evidence of either a 

change of circumstances or new information casting serious doubt 

on McKenzie’s competence during the March 2019 proceedings. 

The trial court did not err in declining to initiate further 

proceedings under section 1368.

Review of the record in this case reflects a trial judge who 

remained calm and patient, and who deftly managed the 

proceedings under challenging circumstances with a defendant 

who was determined to disrupt the courtroom. We commend the 

trial court for its careful and diligent approach to documenting 

the record to enable meaningful appellate review.

B. Jury Instructions

McKenzie argues the trial court violated his due process 

rights when it declined to give an instruction that the jury should 

not speculate as to McKenzie’s absence from the courtroom or 

consider that fact in their deliberations. This argument is based, 

in part, on the erroneous assertion that the trial court never 

addressed McKenzie’s absence.

1. Factual Background

The record demonstrates that during voir dire, with the 

agreement of defense counsel, the trial court advised the venire, 

“as you see, the defendant is not present in court. And I’m going 
23

to ask you to please take—and tell you please do not speculate as 

to why he is not here.”

On March 6, 2019, the trial court inquired whether counsel 

sought any changes in the jury instruction packet the trial court 

had prepared. Defense counsel responded, “I know we had 

discussed it, and I believe the court actually read an instruction 

in the beginning of the case regarding the fact that the defendant 

was not present and not to speculate on that.” The trial court 

responded, “[T]here is no instruction that covers that. I just 

indicated that he’s not here. That’s it—at your request. They’re 

not to speculate as to why he’s not here. But there is no jury 

instruction that covers that. I just told them.” Defense counsel 

did not pursue the matter further.

2. The Trial Court’s Failure to Further Instruct the Jury

About McKenzie’s Absence Did Not Violate Due 

Process

McKenzie does not provide any legal authority establishing 

that a trial court must instruct the jury about a defendant’s 

absence prior to their deliberations. During the trial, he did not 

specifically request a pinpoint or special jury instruction on the 

topic, and the trial court does not have a sua sponte duty to 

provide such an instruction. (People v. Sully (1991) 53 Cal.3d 

1195, 1241.) Contrary to McKenzie’s suggestion, an instruction 

to disregard a defendant’s absence is not equivalent to an 

instruction to disregard visible restraints. Unlike the inference 

that a shackled defendant is predisposed to commit violent 

crimes, there is “[n]o similar inference of prejudice” when a 

defendant voluntarily absents himself from the courtroom.

(Ibid.)
24

Here, McKenzie was absent from the entire trial. The trial 

court directed the jury panel to not speculate about his absence or 

consider it in their deliberations. It also instructed the jury as to 

the presumption of innocence, the burden of proof, and the

accused’s right to not testify at trial. McKenzie does not show the 

trial court’s failure to repeat the admonition about his absence 

prior to their deliberations violated his constitutional right to due 

process. (See Henderson v. Kibbe (1977) 431 U.S. 145, 155 [97 

S.Ct. 1730, 52 L.Ed.2d 203] [“An omission, or an incomplete 

instruction, is less likely to be prejudicial than a misstatement of 

the law.”]; People v. Mills (2012) 55 Cal.4th 663, 677 [the question 

is whether the omitted instruction “ ‘ “ ‘so infected the entire trial 

that the resulting conviction violates due process’ ” ’ ”].)

C. Enhancement for Personal Use of a Weapon

In his final argument, McKenzie maintains the evidence 

was insufficient to support the jury’s finding that he personally 

used a deadly or dangerous weapon, and the trial court erred in 

instructing the jury on this allegation.

Substantial Evidence Supports the Jury’s 

Determination that McKenzie Personally Used a 

Deadly or Dangerous Weapon

In considering a challenge to the sufficiency of the evidence, 

we “ ‘ “ ‘review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence—that is, evidence which is reasonable, credible, and of 

solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’ ” ’ [Citation.]” 

(People v. Brooks (2017) 3 Cal.5th 1, 57.) “ ‘Substantial evidence 

includes circumstantial evidence and any reasonable inferences 

drawn from that evidence.’ [Citation]” (Ibid.)
25

Pursuant to section 12022, subdivision (b)(1),8 the 

prosecution alleged that in committing the offenses against 

Deputy Gelardo and Sergeant Inocente, McKenzie personally 

used a deadly or dangerous weapon. The trial court instructed 

the jury with CALCRIM No. 3145, which required the jury to 

determine if the People proved beyond a reasonable doubt that 

McKenzie “personally used a dangerous or deadly weapon.” The 

instruction defined “deadly or dangerous weapon” as “any object, 

instrument, or weapon that is inherently deadly or dangerous or 

one that is used in such a way that it is capable of causing and 

likely to cause death or great bodily injury . . . . Someone 

personally uses a dangerous or deadly weapon if he or she 

intentionally . . . displays the weapon in a menacing manner.” 

(See CALCRIM No. 3145.)

Instrumentalities “which may be used as weapons but 

which have nondangerous uses, such as hammers and pocket 

knives,” may constitute deadly or dangerous weapons within the 

meaning of section 12022, subdivision (b)(1) when they are 

“capable of being used in a ‘ “dangerous or deadly” ’ manner and 

the evidence shows its possessor intended to use it as such.” 

(People v. Burton (2006) 143 Cal.App.4th 447, 457.)

Deputy Vanarsdale and Sergeant Inocente testified that 

McKenzie obtained something “metal,” “shiny,” and “spike[y]” 

from his clothing and held it in a fist so that the point or spike 

8 Section 12022, subdivision (b)(1) states, “A person who 

personally uses a deadly or dangerous weapon in the commission 

of a felony or attempted felony shall be punished by an additional 

and consecutive term of imprisonment in the state prison for one 

year, unless use of a deadly or dangerous weapon is an element of 

that offense.”
26

was visible. Further, he did not have his arm resting downward, 

but rather had his arm bent so that his fist was before his 

stomach. While brandishing this object, McKenzie moved toward

Deputy Gelardo and Sergeant Inocente. The object was later 

identified to be a screwdriver, and both officers testified it could 

have been used to cause profuse bleeding or traumatic injury. 

This is sufficient evidence upon which a reasonable trier of fact 

could have found McKenzie personally used a dangerous or 

deadly weapon in committing the offenses against the officers.

(See People v. Simons (1996) 42 Cal.App.4th 1100, 1107 

[concluding that a screwdriver qualified as a “deadly weapon” 

under § 417.8 when waved aggressively at officers to prevent 

arrest].)

The Trial Court Did Not Commit Prejudicial Error in 

Failing to Modify CALCRIM No. 3145

McKenzie asserts the trial court erred in failing to modify 

CALCRIM No. 3145 to clarify that a screwdriver is not an 

inherently deadly or dangerous weapon.

As discussed above, the trial court instructed the jury that 

a dangerous or deadly weapon is an object that either (1) is 

inherently deadly or dangerous, or (2) is used in such a way that 

it is capable of causing and likely to cause death or great bodily 

injury. In People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), the 

California Supreme Court considered the alternate theories 

presented by section 12022, subdivision (b)(1) and CALCRIM 

No. 3145, and held that when an object is not inherently 

dangerous, it is error for the trial court to instruct the jury on 

both theories. (Aledamat, supra, at p. 7.) A screwdriver is not an 

“inherently” dangerous weapon. (People v. Simons, supra, 42 

Cal.App.4th at p. 1107; see also Aledamat, supra, at p. 6 [a box 
27

cutter is not an inherently dangerous weapon].) Therefore, under 

the holding in Aledamat, the trial court erred in failing to strike 

the first theory before presenting the instruction to the jury.

9

Aledamat further holds that in evaluating the import of 

this error, we apply the harmless error test articulated in 

Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 

L.Ed.2d 705]. (Aledamat, supra, 8 Cal.5th at p. 13.) Under this 

test, “[t]he reviewing court must reverse the conviction unless, 

after examining the entire cause, including the evidence, and 

considering all relevant circumstances, it determines the error 

was harmless beyond a reasonable doubt.” (Ibid.)

As explained in Aledamat, the danger in providing an 

unmodified instruction is that the jury simply may find the object 

in question is inherently deadly without considering the 

surrounding circumstances, including how the defendant used it. 

(Aledamat, supra, 8 Cal.5th at pp. 13-14, 15.) Here, it is unlikely 

the jury presumed the screwdriver was inherently deadly or 

dangerous. It is common knowledge that a screwdriver is a tool 

used to turns screws and is not ordinarily used as a weapon. (See 

People v. Pruett (1997) 57 Cal.App.4th 77, 86 [noting “[j]urors can 

9 It is arguable whether McKenzie waived this contention

by failing to raise an objection in the trial court. (People v. Rogers

(2009) 46 Cal.4th 1136, 1162, fn. 14 [a claim of instructional error 

is forfeited for failure to raise an objection at trial].) Assuming, 

arguendo, that a waiver occurred, given that the decision in 

Aledamat was issued several months after McKenzie’s trial, we

exercise our discretion to consider this challenge on appeal. (See 

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10 

[“where an otherwise forfeited claim presents an important 

question of constitutional law or a substantial right, the appellate 

court may exercise discretion to review the claim”].)
28

certainly employ common sense and experience to determine 

whether or not” a knife is a deadly instrument].)

Moreover, neither the People nor defense counsel suggested 

that the screwdriver wielded by McKenzie was inherently deadly

or dangerous. Both counsel focused the jury’s attention on how 

the screwdriver was used. The prosecutor argued, “A

screwdriver, it’s not big. It’s not like a long screwdriver. It’s 

pretty thin. But it has a pointed end. And if used in a particular 

way, like the language [in the instruction] said used in such a 

way that is capable of causing or likely to cause great bodily 

injury, it can actually really harm someone. . . . And so, 

absolutely, the screwdriver that was found can cause great bodily 

injury. . . . [I]n deciding whether an object is a deadly weapon, 

you have to consider all the circumstances. . . . [I]n this 

particular case, [McKenzie] didn’t have the screwdriver sitting on 

the street fiddling with his eyeglasses or watch.” The prosecutor 

then described how McKenzie held the screwdriver and stepped 

toward the deputies, and urged the jury to “[l]ook for any other 

evidence that indicates whether the object would be used for a 

dangerous rather than a harmless purpose.”

Defense counsel explained the definition of a dangerous or 

deadly weapon under CALCRIM No. 3145 as follows: “So [you 

have] two classes of things. . . . Things that are inherently deadly 

or dangerous . . . . [W]hat are obvious examples? Well, a 

firearm . . . . A firearm is clearly inherently dangerous. . . . A 

razor-sharp samurai sword. Of course. It’s inherently deadly 

and dangerous. [¶] But then we have everything else in the 

world. It’s not a weapon. It’s not something that is inherently 

deadly. Everyday objects, can they become dangerous or deadly if 

used in a certain way? Sure. Just about anything can become a 
29

dangerous or deadly weapon if you use it in such a way as to be

likely to cause death or great bodily injury, but they’re not 

inherently dangerous or deadly by themselves.” Referring to the 

screwdriver, defense counsel explained, “It’s a tiny little 

screwdriver, for tiny little screws . . . . It’s not inherently deadly 

or dangerous. . . . [¶] So how could these possibly become 

dangerous or deadly weapons? Only if they’re used in such a way 

likely to cause serious bodily injury or death.”

Based on the common understanding of the purpose of a 

screwdriver, and the argument by counsel, it is unlikely the jury 

found the enhancement to be true based solely on a finding that 

the screwdriver was inherently deadly or dangerous. Therefore, 

any error in failing to strike the additional language from the 

instruction was harmless beyond a reasonable doubt. (See 

Aledamat, supra, 8 Cal.5th at pp. 14-15 [holding the instructional 

error was harmless based on common knowledge about box 

cutters and the argument of counsel].)
30

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.