1 Filed 4/30/15 P. v. Lewis CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (San Joaquin)

----

THE PEOPLE, Plaintiff and Respondent,

v. JOEL LADON LEWIS et al., Defendants and Appellants. C064781
(Super. Ct. Nos. SF110732A, SF110732B)

A jury convicted codefendants Joel Lado n Lewis and Gerell Lee Whatley of first degree murder, four attempted murders, eight armed robberies, two attempted robberies and a burglary. Various enhancement allegations were found to be true. The trial court sentenced them to life in pris on without the possibility of parole for the murder, four life terms for the attempted murder s, and determinate sentences totaling 40 years four months for Lewis and 17 years four months for Whatley.2 A third codefendant, Delisa Bryant, was tried at the same time for murder and robbery, but the jury found Bryant guilty of only the lesser included offense of receiving stolen property. The trial court sentenced Brya nt to probation for five years. Bryant did not appeal. We will address Lewis’s appellate conten tions in part I of this opinion, and Whatley’s contentions in part II. Lewis interrupted a pretrial proceeding to complain in very pr ofane terms that he was angry with his lawyer and did not under stand what was going on in the courtroom. The trial court promptly conducted an in-cam era hearing, denied what it construed as a
Marsden motion, 1 and suspended all proceedings to assess whether Lewis was competent to stand trial. The trial court convened a ju ry which, three weeks later, determined that Lewis was competent. Lewis now challenges his competency trial, claiming (A) the prosecutor improperly preconditioned the juro rs during voir dire, (B) Lewi s was denied his right to confront Bryant when the trial court restrict ed Bryant’s cross-examination, (C) the trial court erred in allowing testim ony from Bryant’s attorney, a nd (D) cumulative prejudicial

error. We conclude Lewis’s claim of cumulative prejudicial error has merit. The prosecutor’s conduct during th e competency trial was improp er and the trial court erred in allowing the lay opinion te stimony of Bryant’s lawyer. Lewis was not able to meaningfully participate in hi s defense and his constitutional rights to due process and a fair trial were abridged. Acco rdingly, we do not reach his clai ms of error in the criminal
trial. We will reverse Lewis’s conviction and remand for a second competency hearing

1 People v. Marsden (1970) 2 Cal.3d 11 (motion fo r substitution of counsel).3 to be followed by a new trial if and when Lewis is able to understand the proceedings and assist his attorney. Whatley contends (A) the trial court abus ed its discretion in denying his motion to sever his trial from Bryant’s trial, (B) the prosecutor committed mi sconduct by charging Bryant with murder even though the prosecu tor did not believe Bryant was guilty of murder, and (C) Whatley’s lawyer was ineffe ctive because he did not move to sever Whatley’s trial from Lewis’s trial. Whatley’ s contentions lack meri t and we will affirm the judgment against him.
BACKGROUND Early on the morning of October 22, 2008, federal prison worker Michael Rutledge was found face-down near his driveway , his wallet missing. The door of his truck was open. He had been shot in the he ad while kneeling or lying on the ground. Rutledge died from the gunshot wound. Rutledge normally left for work by 5:00 a.m. A neighbor testified that she heard a gunshot at 4:21 a.m. The neighbor’s husb and also heard the guns hot but estimated the time at 4:25 to 4:35 a.m.; neither reporte d it because they often heard gunshots in Stockton. A 9-1-1 call eventually was place d by someone collecting recyclables nearby.
Paramedics arrived at 6:50 a.m. a nd awakened the victim’s family.
The victim’s wife testified that her husband carried no cash but he did carry a debit card and he kept the pin number for the card on a slip of paper inside his wallet. Before 5:20 a.m., the victim’s debit card was used to make two cash withdrawals of $180 each. A third successive attempt to use the card was denied because of the card’s daily
cash withdrawal limit. A few mi nutes later, at a truck stop, another attempt to withdraw cash was denied, but a $60 gas purchase went th rough. Subsequent attempts to use cards
from the victim’s wallet were unsuccessful. Police investigating the Rutledge murder obtained surveillance video footage from a truck stop and a bank where cards from the victim’s wallet had been used. Later that4 day, a green Jeep Cherokee matching the one in the surveillance tapes was observed parked in front of a house on South Orange Street, where Bryant and Lewis lived. The Jeep, which had “for sa le” and a telephone number wr itten on the back window, belonged to Whatley. While police were i nvestigating the vehicle, Lewis opened the door to the house, engaged in a struggle w ith police officers and was arrested. He was 19 years old. When police search ed the house, they found sk i masks, a load ed gun, the murder victim’s wallet, and some property be longing to other recent robbery victims. Bryant testified that she was 40 years ol d at the time of the crimes and lived on South Orange Street with her young children. She was dating Lewis’s mother, who also
lived in the home with Lewis and Lewis’s br other. Lewis’s nickname was “No-No” for “[Know] No Better.” Bryant la ter testified that Lewis had “p ersonality changes” when he became angry, so she was afraid of him. Bryant said she and her children and Lewis’s
mother were in Elk Grove from October 15 to 21, 2008. They went there because Lewis
and his brother had be aten her up and threatened to kill her; she said Lewis had physically assaulted her on several occasions and also “tormented . . . the rest of the household” because, she surmised, he was abused by a foster parent and should have been taking psychotropic medication. Before she returned to her home, Lewis apologized to her over the phone. Lewis and Whatley were friends. Bryant had swapped cars with Whatley for the trip to Elk Grove because her car needed repairs. At arou nd 9:30 p.m. on October 21, Bryant and her children pickedup Whatley at his house a nd returned to South Orange Street. Lewis and Whatley then left the house in Whatley’s Jeep. Those remaining at the
house had a meal at about 1:30 or 2:00 a.m. Bryant saidshe later fell asleep playing games on her computer and awoke to see Wha tley and Lewis; Lewis had what appeared to be a credit card, which he put on the table nearby. Bryant said she and Lewis and Whatley took the card and got in to Whatley’s Jeep; the Jeep had the words “for sale” and a pho ne number on the back. They drove the5 vehicle to a Valero Country Market. Whatley tried to use the card to buy gas and, when that failed, Whatley gave Bryant the card and a slip of paper with the pin number. Using the card and pin number, Bryant successfu lly made withdrawals from the ATM inside the store. They went to another gas stati on where Whatley used the card to buy gas. The group made several other unsuccessf ul attempts to use the card before returning to South Orange Stre et. They arrived there at ab out 6:00 a.m. Bryant said Lewis gave her the wallet and she placed it under a dresser. Bryant was still at home when police arrived later that day and struggled to subdue Lewis. Police connected Lewis and Whatley to a se ries of armed robberies that had begun on October 16, based on cell phone records and other evid ence, some of which was recovered from Bryant’s home. Although the robbers were reported by some to have worn ski masks or bandanas covering their fa ces, some of the victims identified Lewis and Whatley from photographs. Lewis and Whatley were ev entually charged with ten counts of robbery, four coun ts of attempted murder and various other related crimes. 2 Lewis, Whatley and Bryant were jointly charged with the robbery and special circumstances homicide of Rutledge and related crimes. On March 2, 2009, during pretrial procee dings, the trial court determined that a mental competency evaluation was warranted under Penal Code sec tion 1368 because of Lewis’s bizarre and disruptive conduct in the courtroom. With the agreement of Lewis’s court-appointed counsel, the pretrial proceed ings were suspended. On March 5, 2009, the trial court appointed a psychiatrist, Kent Rogerson, and a psychologist, Wendy Weiss,
to evaluate whether Lewis was competent to stand trial. Th e experts reported back to the court on March 26, that Lewis was not competen t. The prosecutor requested a jury trial on competency.

2 We do not recount details of the robbery-related crimes because there are no challenges about them on appeal, although we do note there were similarities among them.6 A jury was convenedfor the competency trial. The jury selection process is
detailed in the discussion post . The court-appointed experts testified. In addition, the defense retained neuropsychologist Myla Young, psychiatrist Ge orge Wilkinson, and clinical psychologist John Chells en to evaluate Lewis. Each of them also testified. Experts testified that Lewis had a very limite d understanding of the proceedings and that he was not able to rationally assist counsel. Three of the experts recommended that he be confined to a locked facility for a period of time to become stabilized on antipsychotic medication and, while confined, that he rece ive training to restore his competence. No expert opined that Lewis was competent and no expert was equivocal or uncertain about his lack of competence. Neuropsychologist Myla Young testified th at Lewis had a history of head trauma and drug use. Based on her own testing of Le wis, Dr. Young said Lewis had an IQ of 65 by one scale and 69 by another. She said that put him in th e exceptionally low range and gave him the mental ability of a six-and-a- half-year-old child. Dr. Young said Lewis could read at the second grade level and do arithmetic and spelling at the third grade level, but he also had significant frontal lobe impairment, limited impulse control, limited attention and a tendency to misinterpret and mi sunderstand, particularly complex issues. Dr. Young said frontal lobes “help us to comprehend what’s going on in a complex situation” and learn from experience. She used the term “executive functioning” to include “the ability to think, to reason, to problem solve, to plan, to use good judgment, to anticipate the consequences of your actions before you ac tually act, [and] to change your actions.” Although Lewis tested higher in a few areas, she said he was severely impaired in executive functioning most of the time. She added that he had major depression and a psychotic disorder and she doub ted his ability to work with an attorney. The prosecutor asked whether Dr. Young had obtained MRI, CT or PET scans or x-rays, but Dr. Young said none of those were needed to diagnose frontal lobe damage with certainty. In addition, the prosecutor asked whether Dr. Young knew what Lewis7 said to his girlfriend at a jail visit nine mo nths earlier and whether she had reviewed tapes of him in jail, read the letters he wrote from ja il or talked to the crim e victims about him. Dr. Young said she had not. The trial court sustained an objection to a question about whether people with more informa tion would disagree with her.
Lewis had an outburst in the courtroom earlier in the mornin g when his lawyer referred to him as a “crack baby.” He lost further control when Dr. Young suggested that a vast proportion of the popula tion was smarter than he was. As Dr. Young continued to testify about Lewis’s intelligence, Lewis ye lled a stream of epith ets and was removed
from the courtroom. The prosecutor asked Dr. Young on cro ss-examination if it did not demonstrate executive functioning to get someone on his ha nds and knees while he begs for his life
and then to shoot and kill that person when he does not gi ve you money. Dr. Young said that may be the opposite of executive functio ning. The prosecutor placed his hand in a mock shooting motion against the heads of jurors, asking “What about you don’t shoot him in the toe or arm, you shoot him right in the frontal lobe --” Defense counsel objected to the prosecutor “goi ng up to jurors and using them as examples and putting his hands on their heads,” to whic h the prosecutor responded “poi nt well taken” and the trial court said “okay.” Dr. Young denied that sh ooting someone in the frontal lobe showed a mind capable of planning and carrying out the plan. The court-appointed psychiatrist, D r. Rogerson, reviewed all the evidence submitted to him by the pros ecution and the defense. He diagnosed Lewis with psychosis, saying Lewis had aud itory and visual hallucinati ons, disorganized thinking, difficulty putting concepts toge ther and limited abstracti ng ability. Dr. Rogerson also
found borderline intell igence, posttraumatic stress diso rder and antisocial personality disorder. Although Lewis was ta king numerous antipsychotic drugs prescribed for him in jail, they did not “get rid of the voices” a nd were not of much he lp. Dr. Rogerson said Lewis clumsily exaggerated some of his sy mptoms, but the psychiatrist had no doubt8 Lewis had no more than a marginal understandi ng of the legal procee dings and could not rationally assist counsel. He believed mo re antipsychotic treatment and competency training would help and r ecommended six months in a locked hospital ward. On cross-examination, the prosecut or asked Dr. Rogers on whether persons committed to a hospital were let out on w eekend passes and day pa sses. Dr. Rogerson said perhaps after a number of years. The prosecutor asked if a patient could get a day pass or a four-day Christmas pa ss in as little as three years. Dr. Rogerson said he did not have that information. The prosecutor asked whether Dr. Roge rson had listened to a police detective’s tape recorded investigative interviews or tape recordings of Lewis with jail visitors; Dr. Rogerson said he had not because the prosec utor had not sent them to him. The prosecutor also asked whether D r. Rogerson interviewe d Lewis’s codefendant Whatley or defendant’s mother, whom the prosec utor described as a four-time felon. Dr. Rogerson said he did know about the moth er’s criminal record. In addition, the prosecutor asked whether Dr. Rogerson had heard th at Lewis was “going around the jail trying to talk to other inmates to get them to say certain things.” Dr. Rogerson had no knowledge of such conversations. The prosecutor referencedDr. Rogerson’s conclusion in his written report that Lewis had an antisocial personality, and aske d whether a prisoner with this antisocial feature might be prone to deceit and manipula tion. Dr. Rogerson agreed. The prosecutor added, “In fact, the hallmark of someone withthis anti-social feature is you can’t believe a word they say. They’re perennial liars. They’re manipulators a nd they’ve been do -- doing it their whole life. Is that a fair statem ent?” Dr. Rogerson said he would have to qualify that, because a prisoner may say the truth because it would be nefit them, but he agreed you have to be very suspicious. Dr. Rogerson testified that Lewis did not meet the criteri a for cooperating with and rationally assisting counsel. The prosecutor asked whether there is a difference between someone who cannot cooperate with counse l because the person is schizophrenic and9 thinks “people are Martians,” and someone w ho chooses not to coopera te with counsel. Dr. Rogerson agreed there is a difference. Th e prosecutor subsequently asked: “19 years of his life, no meds. All of a sudden in jail, now all of a sudden he’s incompetent. But just all of a sudden he needs meds. That didn’t strike you as odd?” Dr. Rogerson replied, “It doesn’t strike me as -- as totally inconsis tent, no.” The prosecutor referenced Lewis’s school records, asking whether they indicate d that when Lewis “doesn’t get what he wants, he acts out by swearing, slapping, banging his head?” The doctor said, “That could be one interpretation.” The prosecutor itemized vari ous incidents of violence, misconduct and disruption in Le wis’s school record and asked whether Dr. Rogerson saw an ongoing pattern indicating that Lewis is disruptive by nature. Dr. Rogerson said the pattern was what concerned him and supportedhis opinion. Dr. Rogerson said Lewis continues to have tantrums like a six-year-old and that is indicative of a very immature, distorted, attention problem. Dr. Rogerson said it was not his opinion that Lewis did not want to help his attorney. The prosecutor asked Dr. Rogers on questions about whether he had interviewed Lewis’s neighbors, read Lewi s’s letters, interviewed Lewis’s cellmates, read a 2007 arrest report, watched a videotape of Lewis’s 2008 arrest, or recognized various robbery charging allegations. On redir ect, Dr. Rogerson testified that he had read all of the records provided by the prosecutor (30 pages of criminal history) but had not been provided any of the other reco rds the prosecutor asked about. Dr. Weiss, the court-appointed psycho logist, said Lewis’s records showed language and intellectual delays by the age of three. She sa id Lewis had an “incredibly chaotic upbringing, even in ut ero.” His intellectual impair ment was evaluated at the age of 16 by two doctors whose reports she review ed. She testified that Lewis’s jail records revealed head-banging and suicidal thoughts in November 2008; then a few days later, “losing it” in court and banging his head to “get the voices out.” The records she reviewed included repeated reports of audito ry hallucinations in jail and the repeated administration of antip sychotic drugs.10 When Dr. Weiss met Lewis, he denied th oughts of harming himself or others but he had poor eye contact, exhibited signs of paranoia and was unke mpt and disheveled. Dr. Weiss said she always considers ma lingering and faking an d acknowledged Lewis might have exaggerated to some extent, but she was confident he had a psychotic disorder, a cognitive disorder and borderline intellectual func tioning, explaining that the current and historic symptoms were consiste nt with schizophreni a, not yet diagnosed because he was so young. Itwas her opinion that he was in a “decompensated state” and was not competent to stand trial. She opine d that his anger and psychosis would prevent him from working with counse l. Dr. Weiss recommended psychotropic medication and a competency restoration treatment program. During cross-examination of Dr. Weiss, the prosecutor focused on her prior testimony in which she said Lewis told her he did not know why he was in jail and did not know the possible penalties, and she said she believed him. The prosecutor asked whether she had reviewed all the tape recordi ngs of Lewis’s jail visits. Dr. Weiss said
she did not review them becau se they were not provided to her. The prosecutor noted that in talking with others, Lewis referenced the murder and robberies, then asked, “do you think we might want to be suspicious of the defendant when he’s telling you, ‘I don’t know why I’m here,’ and yet he’s telling other individuals at other times specifically why he’s here?” Dr. Weiss agreed that could cause someone to be suspicious, but she was reporting what he told her. The prosecutor focused on he r statement that she believed him, however, saying, “So I guess my poi nt is, you bought it almost hook, line and sinker, didn’t you?” Dr. Weiss replied, “I wouldn’t say that, no.” The prosecutor asked if Dr. Weiss had read the reports regarding the charged crimes, establishing that she was not familiar with those details. On redirect, Dr. Weiss was asked if it was possible for someone who is mentally ill to have a normal conversation one day but months later decompen sate and be in a mu ch worse situation; Dr. Weiss said absolutely. She said stress can cause sy mptoms to get worse.11 George Wilkinson, a forensic psychiatrist, was retained by the defense. He testified that he spent an aggregate of 9.4 h ours interviewing Lewis at the jail. He also reviewed police and probation reports, medical and mental health records and the reports of the two court-appointed experts. He not ed that Lewis’s moth er had been a crack cocaine addict throughout he r pregnancy and Lewis was in foster care from infancy until the age of 13; he also observ ed that Lewis suffered abuse in foster care and that his mental health was questioned beginning at ag e three. Although Dr. Wilkinson described Lewis as “a mess psychologically from an early age,” he believed he had “clearly
deteriorated.” Dr. Wilkinson said it was not surprising th at Lewis was not diagnosed as psychotic at an earlier age. He said su ch a diagnosis is more common in the late teens through the twenties. Lewis’s jail record s showed a diagnosis of psychosis and the administration of antipsychotic drugs, but no improvement. Dr. Wilkinson opined that Lewis was not competent to stand trial because he “had a majo r mental illness, that being the psychosis,” and that “he’d lacked [ sic ] the capacity to attend in a rati onal or factual discussion of his legal -- legal dilemma.” Dr. Wilkinson saidthe combination of mental illness with reduced intelligence made it hard for Lewis to focus or cooperate and caused him to believe his attorney was “in league with the devil and one of his enemies.”
Dr. Wilkinson noted that the antipsychotic drugs pres cribed for Lewis sometimes caused him stomach problems and, in any event, did not seem to be very effective. He
recommended that Lewis be confined to a st ate hospital where Dr. Wilkinson believed a forced regimen of medicine, treatment gr oups and classes would help him become competent to stand trial. During cross-examination of Dr. Wilkinson, the prosecutor asked whether it was
true that there are more clai ms of incompetence in multiple-defendant cases, because one defendant goes to a state hospital, his codefe ndants go to trial a nd say the one in the hospital did it, they are fou nd not guilty, and then the one from the state hospital comes12 back and goes to trial alone and says the other two did it, and he is found not guilty, and
that is “easier.” Dr. Wilkin son responded, “No. No, no.” The prosecutor asked whether
Lewis had been arrested in 2006 for cocai ne, vandalism and gr and theft, but Dr. Wilkinson only knew from the medical reco rd that Lewis had been psychologically evaluated near that time by juvenile authoritie s. Dr. Wilkinson agr eed that the doctors who evaluated Lewis at age 16 did not descri be him as delusional and that the Valley Mountain Regional Center conc luded he was “not so severe ly handicapped” as to be eligible for thei r services. The prosecutor asked if Dr. Wilkinson ha d listened to the tapes of Lewis’s arrest comments or jail visits -- Wilkin son said he had not -- and th en the prosecutor asked Dr. Wilkinson about his familiarity with details of the charged offenses. The trial court overruled an objection to a question asking Dr. Wilkinson to reco unt what one of the robbery victims to ld police. Asking whether Dr. Wilkin son found the timing of Lewi s’s declared incompetence to be suspicious, the prosecutor said Lewis had been “okay” at many prior hearings -- “[s]howboating to the girls in the audience” at the November hearing -- but as the trial date approached he declared his incompeten ce. The prosecutor asked, “You don’t find that a little suspicious that maybe he’s tryi ng to con you?” Dr. Wilkinson responded, “Of course that’s something you always consid er” in such an evaluation. Dr. Wilkinson said he was not present at the multiple court appearances in which the prosecutor described Lewis as okay, and could not speak to those, but he personally witnessed Lewis evidencing severe difficulties in hi s thinking and behavior in a meeting on December 4, 2008. Dr. Wilkinson acknow ledged his earlier te stimony that Lewis sometimes exaggerated. When the prosecutor asked whether Lewis had said he did not want to go to back to prison, Dr. Wilkinson replied, “No, but he did tell me he wasn’t crazy in quite emphatic terms.”13 The prosecutor asked Dr. Wilkinson wh ether the arrest report said Lewis was hallucinating on the day of his arrest; Dr. Wilkinson confirmed the report did not say that. The prosecutor asked whether, in the jail and prison population, there is “a good chunk of those people” with psychosis. Dr. Wilkinson saidless than ten percent, but more than the general population. He said the jails have be come our de facto mental health hospitals. The prosecutor noted that in a probati on report from several years earlier, Lewis admitted doing all that he coul d to be terminated from a camp program in the hope that he would be released to the custody of his mother. The prosecutor asked Dr. Wilkerson, “So doesn’t that make you think, ‘Hey, this guy knows how to pl ay the system. He
knows the Court will do X if he does Y.’ And it worked back then. Why wouldn’t it
work now?” Dr. Wilkinson said it was a valid concern and on e that he shared throughout
the evaluation. Dr. Wilkinson said it was not un usual for a person to be able to talk to his mother and girlfriend and still have a low IQ and psychosis. Clinical psychologist John Chells en, who had written several articles on competency to stand trial, evaluated Lewis in December 2008. He reviewed school records and also reviewed medical and psychol ogical records from the juvenile court, the county jail and the preliminary hearing. He also conducted his own independent testing.
Dr. Chellsen concluded that Lewis had bord erline intelligence, wh ich he estimated at approximately the fifth percentile , consistent with testing pe rformed when Lewis was 16. Although Lewis was reluctant to cooperate, Dr. Chellsen did not believe he was faking. He described Lewis as restless, distracted a nd subject to auditory hallucinations so strong
he sometimes blacked out. D r. Chellsen diagnosed Lewis with severe depression with psychotic features or schizoaffective disord er, noting that his predominant problem was the psychosis. From the diagnoses and their severity, D r. Chellsen concluded Lewis could not be competent to stand trial unless his psychos is could be reasonably well-controlled. Lewis’s intelligence level alone was not determin ative. In 25 years of experience, Dr.14 Chellsen said he found malingering in only 10-15 percent of cas es and Lewis was not malingering. The prosecutor agreed on the record that all the experts were qualified. Witnesses for the prosecution included law enforcement and correctional o fficers who had been able
to communicate with Lewis at various times , correctional officers who overheard him communicate with fellow prisoners and visito rs and observed that he copied and added numbers on commissary orders and kept his cell tidy. The prosecutor also called Bryant’s lawyer and three pe ople who had known Lewis before the crime: his girlfriend
between October 2008 and January 2009, his codefendant Br yant, and Bryant’s niece, Brittany Grace. We will discuss some of that testimony in the discussion, post

. The prosecutor’s closing argument was to the effect that, according to his codefendant Bryant, Lewis was “smarter than us” and “had more sense than you and I”
and she would know because sh e lived with him. Referri ng to Lewis’s jail tapes and letters and the testimony of people who knew Lewis from his arrests, from jail, and from living with him, the prosecutor said the doctors “didn’t have th is stuff. You do . . . .” The prosecutor pointed to evid ence that Lewis once told a visitor that Lewis was charged with murder, demonstrating his understanding of the legal proceedings. The prosecutor said Lewis was not present at the time of cl osing arguments because he chose not to be present and added, “He can pound his head all he wants” but “you don’t reward him with that behavior” by giving him a pass. The closing argument by Lewis’s defense counsel was to the effect that the medical experts had 137 years of collective e xperience in evaluating defendants. Defense counsel said the jail visitor conversation Lewi s had about the fact that he was charged with murder was October 23, and Lewis wa s not put on medicati on for psychosis until November 8. Lewis’s lawyer reminded the ju ry that they were to evaluate Lewis’s competence to stand trial at th e time of the competen cy trial, not at the time of his arrest15 or in 2005 or 2007, when seve ral law enforcement witnesses te stified he had seemed able
to understand them. The jury found Lewis comp etent to stand trial. All three defendants moved for separate trials, but their motions were denied. At the conclusion of the criminal trial, the jury found Bryant guilty of receiving stolen property and the trial court sentenced her to probation for five years. The jury convicted Lewis and Whatley of first degree murde r, four attempted murders, eight armed robberies, two attempted robberies and a bu rglary. Various enhancement allegations
were found to be true. The trial court se ntenced them to life in prison without the possibility of parole for the murder, four life terms for the attempted murders, and determinate sentences totaling 40 years four months for Lewi s and 17 years four months for Whatley. Additional relevant fa cts are included in the discussion.
DISCUSSION
I Lewis challenges his competency trial, claiming (A) the prosecutor improperly preconditioned the jurors during voir dire, (B) Lewis was deni ed his right to confront Bryant when the trial court restricted her cr oss-examination, (C) the trial court erred in allowing testimony from Bryant’s attorney, and (D) cumulative prejudicial error. We begin with an overview of the law regarding competence to stand trial. A felony defendant has the right to be presen t at his or her trial, both physically and mentally. ( People v. Berling (1953) 115 Cal.App.2d 255, 267 [citing Cal. Const., art. I, § 13 and Pen. Code, § 1043].) Requiring an accused “to stand trial while not in the full enjoyment of consciousness and mental power ” is a fundamental error of constitutional proportions. ( People v. Berling, supra, 115 Cal.App.2d at p. 270.) Trial of an incompetent person violates th e Sixth and Fourteenth Amendm ents to the United States Constitution. ( Pate v. Robinson (1966) 383 U.S. 375, 378 [ 15 L.Ed.2d 815, 818].)16 The California procedure for determini ng whether a defendant is competent to stand trial begins with the premise that “[ a] person cannot be tried or adjudged to punishment . . . while that person is me ntally incompetent.” (Pen. Code, § 1367, subd. (a).) When a judg e has doubts about a defendant’s mental competence at any time prior to judgment, the judge mu st inquire of defense counsel and, if counsel believes the defendant may be incompeten t, the court must suspend proceedings and evaluate competency. (Pen. Code, § 13 68.) “It is unfair to subject any defendant to criminal prosecution when he cannot understand the na ture of the charges pressed against him or cannot assist in his own defense.” ( People v. Bye (1981) 116 Cal.App.3d 569, 576.) The purpose of Penal Code sec tion 1368 is that “no defendant shall ever be convicted of a criminal charge when he was incapable of understanding or assisting during the trial of his alleged guilt.” ( Bye, supra, 116 Cal.App.3d at p. 577, italics omitted.) As the United States Supreme Court expl ained, the standard for competence to
stand trial is whether a defendant “ ‘has su fficient present ability to consult with his lawyer with a reasonable degree of rati onal understanding -- and whether he has a
rational as well as factual understanding of the procee dings against him.’ ” ( Dusky v.
United States (1960) 362 U.S 402 [4 L.Ed.2d 824] .) The right not to be tried or convicted while incompeten t has “deep roots in our common-law heritage.” ( Medina v. California (1992) 505 U.S. 437, 446 [120 L.Ed.2d 353, 364] [citing authorities from the 18th and 19th centuries].) Under California law, it is “presumed th at the defendant is mentally competent unless it is proved by a preponderance of th e evidence that the defendant is mentally incompetent.” (Pen. Code, § 1369, subd. (f).) This alloca tion of the burden of proof comports with federal due process. (Medina v. California, supra, 505 U.S. at p. 452 [120 L.Ed.2d at p. 367].) A proceeding on the issue of mental competence begins with the court’s appointment of one or more expert psychi atrists or psychologists to evaluate the17 defendant’s ability to understand the nature of the criminal proceedings and his ability to assist counsel in a rational manner. (Pen. Co de, § 1369, subd. (a).) The medical experts also may recommend antipsychotic medi cations or other treatments. ( Ibid .) The defense may submit the matter on the expert reports. ( People v. Weaver (2001) 26 Cal.4th 876, 903-904.) When a trial is requested, the de fense may present additional evidence, after which the prosecution may present evidence “regarding the issue of the defendant’s present mental competence.” (Pen. Code, § 1 369, subds. (b) & (c).) A defendant may be found incompetent by a unanimous jury. (Pen. Code, § 1369, subd. (f).) If a defendant is found incompetent, his progress toward compet ence must be reported within 90 days and again at six-month intervals for up to thre e years, with a second hearing required 18 months after the first one. (Pen. Code, § 1370.) Once a defendant is found competent, criminal proceedings resume. ( Ibid .)
The order for Lewis’s co mpetency hearing followed a series of courtroom
outbursts in which he had to be restrained a nd forcibly removed. The trial court first stated its concern about compet ency on the re cord following a Marsden hearing, after
which defense counsel stated on the record that he doubtedLewis’s ability to rationally
assist counsel and understand the nature of the charges and proceedings. Proceedings were suspended. The prosecutor asserted th at belligerence or unw illingness to cooperate is sometimes “misunderstood as an inability to cooperate” and a defendant can abuse the distinction. The trial court acknowledged th e prosecutor’s concern but responded that it had seen enough to have no questions about appointing doctors to provide written
evaluations. The trial court appointed two experts, a ps ychiatrist and a psyc hologist. After both doctors reported to the trial court that Lewis was incompetent, Lewis agreed to stipulate to incompetence, but the prosecutor requested a jury trial on the issue. Counsel for Bryant asked for copies of the two doctor reports saying, “I want to see if this is a for real thing or make believe. And sometimes docs can be fooled as well.”18 A Lewis contends the prosecutor improper ly preconditioned the jurors during voir dire before the comp etency hearing.
Lewis claims the trial court should have prohibited the prosecutor from extensively questioning prospective jurors about their “street smarts,” their ability to tell whether someone had tried to “pull the wool over their eyes,” wh ether they thought it would be “pretty easy to fake” being inco mpetent by “doing crazy things” and whether, “if you were charged with some serious fel onies and you had no way out . . . you might try to say you were incompetent so that you [¶] . . . [¶] wouldn’ t have to face the music.” Questions in a similar vein we re extensive. Lewis objected that the prosecutor was “pretrying the case,” but his objection was overrule d. In response to the prosecutor, one prospective juror agreed that she could fake incompetence, explaining that, to do so, she would talk to herself, act crazy, run around and scream. The pros ecutor asked another witness whether it would be “kind of easy to fake incompetence.” That witness responded, “I think if you’re trying to get away with something, y ou can do whatever you want in order to get what you want to do or get where you want to be.”
A trial court has broad discretion in voir dire; the discretion is abused only when questioning “is not reasonably sufficient to test prospective jurors for bias or partiality. [Citation.]” ( People v. Tafoya (2007) 42 Cal.4th 147, 168.) In this context, bias is a state of mind “which will prevent the juro r from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C).) Lewis recognizes that a juror who would unconditionally accept or unqualifiedly reject the testim ony of experts would have been properly removed for bias, but argues the prosecutor’s que stions went beyond determin ing whether the jurors were
biased and indoctrinated them to believe that it would be easy to fake incompetence and that Lewis had done so, dupi ng the medical experts.19 Counsel’s right to question prospective ju rors does not include a right to “educate the jury panel to the partic ular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudi ce the jury for or against a particular party, to argue the case, to indoctrinat e the jury, or to in struct the jury in matters of law.” ( Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 882, quoted in criminal cases cited recently by People v. Abilez(2007) 41 Cal.4th 472, 492-493.) A trial court may, in its discretion, limit the que stioning of prospective jurors by counsel. (Code Civ. Proc., § 223.) In deciding which questions counsel may ask prospective jurors, trial courts are accord ed “great latitude.” ( People v. Earp (1999) 20 Cal.4th 826, 852, quoting Mu’Min v. Virginia (1991) 500 U.S. 415, 424 [1 14 L.Ed.2d 493, 505].) Objectionable statements during jury sele ction are not inherently likely to unduly influence a jury’s verdict becaus e, at that stage, the jurors have not yet begun to consider arguments or evidence. ( People v. Medina (1995) 11 Cal.4th 694, 741; People v. Ghent (1987) 43 Cal.3d 739, 770.) Re versal based on errors during voir dire is appropriate only
if there is a reasonable likelih ood the jury construed or applied improper remarks in an objectionable fashion and the totality of the evidence demonstrates the likelihood of a
more favorable result ab sent misconduct. ( People v. Castillo (2008) 168 Cal.App.4th 364, 385-386.) We agree with Lewis that many of th e prosecutor’s voir dire questions were inappropriate. The prosecutor repeatedly aske d potential jurors to consider how easy it
would be for them to fake in competence if they wanted to avoid responsibility for serious misconduct. Those questions did not simp ly illicit information about a prospective juror’s bias toward medical experts, the que stions also asked potential jurors to think about how they might fool the experts. Asking whether a motivated juror could “pull the wool over the eyes” of a mental health prof essional to avoid “faci ng the music” did not aid in assessing whether the juror could properly weigh expert testimony. (See Code Civ.20 Proc., § 223 [“Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause.”]) Lewis objected to one of the prosecutor’s early voir dire questions about whether it would be easy to feign incompetence. The trial court overruled the objection, reasoning that the question was directed at a challenge for cause, to identify overconfidence in medical experts. Lewi s did not renew the objection and never requested a trial court admoniti on to the jury in that cont ext, potentially subjecting him
to forfeiture of his claim that the prosecutor committed misconduct during voir dire. ( People v. Price (1991) 1 Cal.4th 324, 447.) Nonetheless, application of the forfeiture rule is not automatic and does not necessarily deprive an appellate court of authority to address cumulative prejudicial error. ( In re S.B. (2004) 32 Cal.4th 1287, 1293; see also People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) We address Lewis’s claim of cumulative prejudicial error later in this opinion.
B Bryant testified for the prosecution regarding Lewis’s competence. Lewis contends the trial court deprived him of his Sixth Amendment right to confront witnesses
when it restricted his cross-ex amination on the topic of Brya nt’s role in the crimes. Sixth Amendment rights are violated when a criminal defendan t is prohibited from conducting otherwise appropriate cross-examination in order to prove “prototypical” bias and to expose facts from which the jury may draw inferences about the witness’s reliability. ( Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684].) Exposing the bias or motive of a witness is a “proper and important” function of crossexamination. (Evid. Code , §§ 761, 780, subd. (f); Davis v. Alaska (1974) 415 U.S. 308, 316 [39 L.Ed.2d 347, 35 4]. ) It is error to restrict cross-examination in a way that prevents a criminal defendant from effectively attacking the credibility of a key witness. ( People v. Allen (1978) 77 Cal.App.3d 924, 933.) No netheless, trial judges maintain
broad discretion to limit cross-examinati on that would cause undue harassment,21 expenditure of time, confusion of issues or threats to the safety of a witness. ( People v. Jennings (1991) 53 Cal.3d 334, 372, citing Evid. Code, § 352 and Delaware v. Van Arsdall, supra , 475 U.S. at p. 679 [ 89 L.Ed.2d at p. 683].) Improper denial of cross-examination requires reversal unless the error was harmless beyond a reasonable doubt. ( Delaware v. Van Arsdall, supra , 475 U.S. at p. 684 [89 L.Ed.2d at p. 686], citing Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710].) Factors to be cons idered in evaluating the gravity of denying cross-examination include the importance of the witness’ testimony, whether it was cumulative, whether there was corroborating or contradicting testimony, the extent of cross-examination otherwise permitted and the overall strength of the prosecution’s case. ( Delaware v. Van Arsdall, supra , 475 U.S. at p. 684 [ 89 L.Ed.2d at p. 686].) Bryant testified that she had known Lewi s for three years and had talked to him about “everything,” including life, kids and bo oks. She said they did not have trouble understanding one anothe r and he could even read and ex plain novels. Bryant added, “He’s got plenty sense” and “he’s not crazy.” She continued, “I think he understands well -- fully well what’s going on” and “He onl y acts like a fool when he comes to court.” She said she saw Lewis daily when she lived with him and she knew he could send text messages and use a computer to acce ss social media and do wnload music. She testified that he played basketball, drove a car, visited friends and flirted with girls. 3

3 A letter in Bryant’s pocket when she was arrested indicated something different. The letter described a pattern of physical violence, saying Lewi s “has tormented me and the rest of the household. He has his own mother afraid of him.” It continued, “I’m afraid that if [police] pick him up and don’t keep him he will lookfor me and kill me. I know that I should have reported it long ago but I was afraid. He torments people because he was abused by his foster parent. I think that he is suppose[d] to be on syke [ sic ] meds . . . .” As defense counsel acknowledged , the letter was mentioned in a police report where Bryant was reported to have acknowledged writing th e letter and her belief that Lewis had a “crazy temper.” Lewis’s counsel sa id he did not have th e letter at the time of22 Defendant’s counsel began to cross-examin e Bryant at the competency trial about the charges against her. Bryant acknowle dged that she was charged with special
circumstances homicide. Defense counsel th en asked her about a videotape showing her using the murder victim’s debit card after th e murder. The prosecutor objected that the question was beyond the scope of direct exam ination, and the trial court sustained the objection. Defense counsel asserted his right to question Bryant about motive and bias. The prosecutor argued that Lewis was “pla ying a game” by trying to force Bryant to
assert the Fifth Amendment in order to force the trial court to strike her testimony. Bryant’s counsel claimed the facts of the crim es were not relevant to a competency trial and the requested cross-ex amination was no more than improper discovery. After Lewis’s counsel asked Bryant if her conversations with Lewis included plotting robberies, the trial court interruptedto ask Bryant’s la wyer whether Bryant intended to assert a privilege. Bryant’s lawyer turned to Lewis’s lawyer and said, “You know what, you want to go there? Go there. ” Bryant’s lawyer said if Lewis’s counsel wanted to challenge him in front of a jury, he was “not afraid of it” and “I’ll throw it in his face because that’s the way it’s going to co me out.” Lewis’s lawyer said Bryant’s lawyer was a “much better showman than I am .” The trial court ultimately agreed to make Bryant available for recall and to preliminarily consider Lewis’s proposed questions about the crimes. Counsel for Bryant said if his client were recalled, she would be asserting her Fifth Amendment privilege. Following the argument about Bryant’s cro ss-examination, the tr ial court informed the jury that the trial court was sustaining the prosecutor’s objectio n and would not allow defense counsel to go into th e facts of the underlying crimes. Lewis’s counsel continued
cross-examination and asked Br yant again whether she unders tood that she was charged

the competency trial and later said he intend ed to “file the approp riate motions” about it although no such motions appear in the record.23 with special circumstances homicide and was f acing a sentence of life in prison. Bryant responded in the affirmative. On redirect, Bryant indicated she had never spoken to the prosecutor before and was te stifying under subpoena.
When a witness does not submit to cro ss-examination, the conventional remedy is to strike the direct testimony of that witness. ( Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735-736.) The prosecutor mentioned that remedy, suggesting that Lewis’s counsel was trying to trigger it. Bu t Lewis’s counsel did not recall Bryant to the witness stand, did not force he r assertion of her privilege a nd did not move to strike any part of her testimony. There is no explanation in the record or the appellate briefs for the apparent abandonment of the confrontation clau se issue, although Lewis urges us to find
ineffective assistance of counsel if we conclude he forfeited his claim.
We reach the merits and conclude Lewi s has not established a violation of the
confrontation clause. The onl y restriction imposed by the trial court on Lewis’s crossexamination of Bryant pertained to questions about factual details of the crimes. Lewis’s
counsel was free to cross-exam ine Bryant on other topics, including the nature of the charges pending against her and the fact that sh e was awaiting trial. The jury heard about Bryant’s appearance on a videotape trying to obtain cash with a card from the murder victim’s wallet. And in closing argument, defense counsel referenced Bryant’s testimony during the cross-examination, saying, “I don’ t buy anything that she has to say” because the prosecutor charged her with special circum stances homicide and “[s]he’s got a real big motive . . . to have Mr. Lewis competent [in that] she wants to pin everything on Mr. Lewis.” Lewis does not identify other infere nces that might have been drawn if his
counsel had been allowed additional cross-ex amination about the crimes, and none are apparent. The time of the trial is the only time period relevant to a defendant’s competence to stand trial. ( People v. Acosta (1971) 18 Cal.App.3d 895, 900.) Bryant’s testimony
was based on the time Lewis lived in her hous ehold, which was long before the trial.24 In any event, although Bryant ’s testimony indicated that Le wis was intelligent and sane,
Lewis’s cross-examination established that Bryant was with Lewis the morning of the crime, was standing trial with him and was “p issed off” about it. She knew she faced the possibility of life in prison. Lewis does no t explain how additiona l questions about the crimes might have impeached Bryant more effectively. Lewis was given the opportunity to con front and cross-examine Bryant about the pending criminal charges. There is no in dication that additional questions about the crimes “might reasonably have [produced] a significantly different impression” of the witness. (See Delaware v. Van Arsdell, supra, 475 U.S. at p. 680 [89 L.Ed.2d at p. 684].) Lewis has not established a confrontation clause violation.
C Lewis argues the trial court erred in allowing testimony from Bryant’s attorney. We agree. The prosecutor called Bryant’s lawyer an d asked, “do you, as a layperson, have an opinion about [Lewis ’s] ability to understa nd what’s going on and assist counsel?” Lewis’s attorney objected, but before he could complete his articulation of the grounds for the objection, the trial court overruled th e objection, saying the questions were just calling for the witness’s personal observations as a layperson. Bryant’s lawyer testified that he had be en an attorney for 20 years, a California Highway Patrol officer for seven years, a priv ate investigator for a few years and that he
had observed Lewis in court. When asked if there was anythi ng he had done to “test” whether Lewis “knew what was going on,” Bryant’s attorney said one day in the courtroom he “locked eyes” on Lewis. Acco rding to Bryant’s a ttorney, Lewis looked at him and it became a staring contest. Even tually Lewis said, “What the fuck are you looking at?” The prosecutor asked about the significance of Lewis’s response “as far as your opinion on his competency?” Bryant’s a ttorney replied, “-- that he understood that I’m Miss Bryant’s attorney. I’m in an adve rsarial position --” Lewi s’s attorney objected25 and moved to strike the testim ony as speculative. The trial court sustained the objection and granted the motion to strike . But then the prosecutor e xplained, “I’m asking for his lay opinion, not as a doctor, but he’s a laype rson, his opinion on [Lewis’s] competence,
based on his numerous contacts with him in c ourt and based on his locking of the eyes.” The trial court said that question was fine. The prosecutor then asked Bryant’s attorney, “what is your opinion?” Bryant’s atto rney answered, “That he understands my significance. He understands the process that -- that I’m the attorney . That I represent Miss Bryant. And -- and my job is to defend her.” Witnesses may not give testimony based on conjecture or speculation because such testimony has no tendenc y in reason to resolve questions in dispute. ( People v.
Chatman (2006) 38 Cal.4th 344, 382 [citing Ev id. Code, §§ 702 and 210].) A question asking a witness to explain what others unde rstood or thought calls for impermissible speculation. ( People v. Blacksher (2011) 52 Cal.4th 769, 841- 842.) The trial court erred when it permitted the witness to speculate about what Lewi s did or did not understand about the proceedings. During cross-examination, Bryant’s atto rney added, with no question pending, “I’ve heard and seen you [referring to Lewis’ s counsel] talk to Mr. Lewis. Mr. Lewis understands what you’re telling him [¶] . . . [¶ ] and what you talk about.” In response to a question about who was pres ent in court during the allege d staring contest, Bryant’s attorney testified, “My client wasn’t there. But if I recall correctly, [the defendants’] appearances were waived becaus e I’ve been pushing to get the thing to trial. Be done. We’d be in trial 60 days after.” Bryant’s attorney added, with no question pending, “You guys are slowing me down. And my purpose being here is to help get this thing off the ground. Let’s go to trial.” Following a cl arification of the right to a speedy trial and his client’s waiver of that right, Bryant’s attorney said Lewis’ codefendants were waiting and “You guys are holding up the show [w ith the competency trial].” “Once this procedure is completed,” he said, “we can make the case that we’re going to do.” He26 denied that he planned to use the joint tria l to “blame everything on Mr. Lewis” but he
added that the evidence at trial w ould prove his client not guilty. The testimony by Bryant’s attorney provided no foundation in reason for assessing Lewis’s competency to stand trial. The ex pertise required for making that determination is psychiatric or psychological, not legal. (Pen. Code, § 1369.) A lay witness may offer opinion testimony only if the opinion is based on his own perception a nd is “helpful to a clear understanding of his test imony.” (Evid. Code, § 800.) An opinion about another person’s credibility is not helpful to an understanding of a witness’s description of what he observed; it invades the province of the jury and is never admissible. ( People v. Smith (1989) 214 Cal.App.3d 904, 915.)
The trial court ruled that the witness wa s allowed to offer an opinion because it
was based on his own observations in the co urtroom. A layperson who has observed actions consistent with drunkenness may o ffer an opinion from those observations that someone was intoxicated. ( People v. Garcia (1972) 27 Cal.App.3d 639, 643 [it is
common to associate the sme ll of liquor, slurred speech and an unsteady gait with drunkenness].) But a lay person may not give an opinion ab out whether a person has an intellectual disability because such a disability has a legal definition not commonly understood by people of re asonable intelligence. ( In re Krall (1984) 151 Cal.App.3d 792, 797.) Such an opinion may be o ffered only by a qualified expert. (Ibid .) Similarly, lay opinion about another person’s ability to di stinguish right from wrong is inadmissible. ( People v. O’Brien (1932) 122 Cal.App. 147, 15 0.) Qualified psychiatric or psychological e xperts, on the other hand , can and do opine on such matters, even though it is ultimately a question fo r the jury to decide. ( People v. Woods (1937) 19 Cal.App.2d 556, 562-563.) An ordinary layperson’s opini on about whether some one is competent to stand trial, like a conclusion ab out whether he has an intellectua l disability or is insane, is inadmissible because such opini ons are, in the language of Evidence Code section 800, not “helpful to a clear understanding” of what the witness observed. Consistent with the27 cited authorities, the lay opin ion by Bryant’s attorney ab out whether Lewis understood the proceedings and meaningfully communica ted with his lawyer did not meet the statutory requirements for lay opinion and shou ld not have been ad mitted into evidence. Because of their persuasiveness and despite their relevant expertise, lawyers are explicitly prohibited from testifying on issues reserved for the jury. ( Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 971.) When an opinion, especially that of a lawyer, amounts to no more th an an expression of the witne ss’s belief about how the case should be decided, the opinion supplant s the jury, rather than aiding it. ( Summers v. A.L.
Gilbert Co . (1999) 69 Cal.App.4t h 1155, 1182-1183.) In the face of evidentiary error, we evaluate whether a more favorable outcome would have been reasonably probable in the absence of the error. ( People v. Marks (2003) 31 Cal.4th 197, 226-227 [applying Watson standard].) In the “rare and unusual” case where the improperly adm itted evidence deprived a defendant of due process rights
and rendered the trial fundam entally unfair, we apply the Chapman test. 4 ( People v.
Albarran (2007) 149 Cal.App.4th 214, 228-232.) As we explain in the next section, our
conclusion is the same under either standard.
D
Lewis contends the cumulative effect of th e errors in his competency trial resulted in a reasonable probability th at the jury would have reach ed a more favorable result
without them. We are mindful th at in a situation like this one “the litmus test is whether defendant received due process and a fair trial.” ( People v. Kronemyer (1987) 189 Cal.App.3d 314, 349, disapproved on other grounds in People v. Whitmer (2014) 59 Cal.4th 733.)

4 Chapman v. California, supra , 386 U.S. at p. 24 [17 L. Ed.2d at p. 711] [reversal required unless State proves beyo nd a reasonable doubt that error did not contribute to verdict].28 The federal Constitution requires the states to “observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial.” ( Drope v. Missouri (1975) 420 U.S. 162, 172 [43 L.Ed .2d 103, 113].) The purpose of a competency proceeding under Penal Code section 1368 is different from other mental health proceedings in that “the protection of society in general is not a consideration,” rather “[t]he law seeks only to protect the accused. It is unfair to subject any defendant to criminal prosecution when he cannot und erstand the nature of the charges pressed against him or cannot assist in his own defe nse. Even when a defendant resists this protection by opposing the evid ence of incompetency, it woul d be unfair to deny him the
benefit of treatment for his condition before subjecting him to a potential loss of life or liberty in the criminal proceeding.” ( People v. Bye, supra, 116 Cal.App.3d at p. 576, italics omitted.) We are aware that the comp etency trial was difficult a nd that the trial court took many steps to try and make it fair. At one poi nt Lewis refused to go to court, telling a jailer the judge could “suck his dick.” His lawyer asked him to be present because his friends and family would be te stifying and the lawyer needed his input, but Lewis refused to participate, reiterating that he did not want to be there. He was kept out of the courtroom that day because of his threats to spit on people. He had to be “taken down” by officers and escorted out of the courtroo m on a number of occasions. The trial court ordered a more secure courtroom, arranged for Lewis to be accompanied by a Custody Emergency Response Team, and ordered him shackled to an eyebo lt on the floor with chains hidden by a table skirt. When he was removed from the courtroom, the trial court set up a camera in another room so Lewis could observe the trial. Lewis’s lawyer stated during trial that he had not been able to communicate with his client at a critical juncture, reminding the trial court that Lewis’ nic kname was “No No” (Know No Better) and his IQ was “less than the room temperature.” Afterward, the trial court described the competency trial as “really s cary” due to Lewis’s kicking, yelling and screaming.29 Nonetheless, we have described the pr osecutor’s inappropriate questions during voir dire, the testimony from the medical expert s, the prosecutor’s cross-examination of the medical experts (including asking abou t materials that the prosecutor had not provided to the witnesses; asking whether pe rsons committed to a hos pital are given day, weekend or holiday passes; asking whether th ere are more claims of incompetence in multiple-defendant cases; stating that Lewis had been “showboating” to girls in the courtroom audience; and placing his hand in a mock shooting motion against the heads of jurors), the inadmissible testimony from Bryant ’s attorney, and the prosecutor’s closing arguments. Medical experts testified that Lewi s had a major mental illness of psychosis, among other things, and that he was incompetent to stand trial. No expert testified that he was competent. “Of course, the jury is not required to accept at face value a unanimity of expert opinion: ‘To hold otherwise would be in effect to substitute a trial by “experts” for a trial by jury . . . .’ ” ( People v. Samuel (1981) 29 Cal.3d 489, 498, quoting People v. Wolff (1964) 61 Cal.2d 795, 811.) We recognize that the jury was in the best position to view the witnesses, and that several witnesses testified about their observations of Lewis. We also recognize that in California, a defe ndant is presumed ment ally competent unless it is proven by a preponderance of the evid ence that the defendant is mentally incompetent. (Pen. Code, § 1369, subd. (f).) But the compet ency trial must afford the defendant due process and it must be fair. Although Bryant’s lawyer was not an expert witness, the jury heard testimony that he had been an attorney for 20 years and had also worked as a California Highway Patrol officerand a private investigator. He testified that the competency trial was delaying a crim inal trial for the other codefendants, and his inadmissible testimony was consistent with the prosecutor’s repeated suggestions throughout the trial that Lewis was feigning mental illness to avoid a criminal trial. There is a reasonable probability that if the cumulative errors had no t occurred, the jury might have credited the expert testimony and found Lewis not competent to stand trial.30 The cumulative errors cause us to conclude Lewis’s constitutional rights to due process and a fair trial were abridged.
We will reverse Lewis’s conviction and re mand the matter to the trial court for a new evaluation of Lewis’s competency to stand trial. The experts opined that he had the potential for competency with effective treatment. When a court has determined that Lewis is able to understand the charges agai nst him and to communicate effectively with his lawyer, he may be retried. Because we reverse the conviction, we do not reach
Lewis’s contentions of error in the criminal trial.
II
A Whatley contends the trial court abused its discretion in denying his motion to sever his trial from Bryant’s trial. “When two or more defendants are join tly charged with any public offense,” they must be tried together unless the trial c ourt in its discretion orders separate trials. (Pen. Code, § 1098.) This discretion is abused if a joint trial lead s to the admission of otherwise inadmissible incriminating extr ajudicial statements made by one joint defendant and offered by another. ( People v. Jackson (1996) 13 Cal.4th 1164, 1207, citing People v. Aranda (1965) 63 Cal.2d 518, 529-530 ( Aranda ); see also Bruton v.
United States (1969) 391 U.S. 123 [20 L.Ed.2d 476] ( Bruton ).) Whatley raises no Aranda-Bruton issues on appeal. Instead, he cites People v. Greenberger (1997) 58 Cal.App.4th 298, 344, for the principle that trials should be separate when the defenses are antagonis tic to one another. But as the court in Greenberger observed, while a trial court certainl y may choose to sever on the basis of conflicting defenses, no appellate court has found an abuse of discretion or reversed
a conviction when severance was denied on that basis. ( Greenberger, supra, 58 Cal.App.4th at p. 344, citing People v. Boyde (1988) 46 Cal.3d 212, 232.) In other words, severance is not required merely because defendants plan to sh ift responsibility to31 one another. ( People v. Box (2000) 23 Cal.4th 1153, 1196 .) If antagonistic defenses alone justified severance, the legislative pref erence for joint trials would be negated. ( People v. Hardy (1992) 2 Cal.4th 86, 168.) All three defendants joined in a motion to sever; the motion asserted that a joint trial would trigger Aranda-Bruton issues. The trial court heard argument and asked counsel to explain the application of Aranda-Bruton to the evidence they expected to
offer at trial. The trial court initially observed that Aranda-Bruton would seem not to apply to Bryant’s statements because she in tended to take the stand and be subject to cross-examination, but further argument wa s permitted. The pros ecutor asserted the
defenses were consistent be cause Whatley and Lewis said they found a wallet with a credit card and pin number insi de; Bryant said Whatley and Lewis arrived at her house
with the wallet in hand and the three defendants took the card and pin number to an ATM. But Bryant’s lawyer argued the defenses were not consistent. Although Bryant used the credit card, she expect ed to testify that it did not make sense that the other
defendants found the credit car d within minutes of the murd er. Lewis’s lawyer pointed
out that the conflict and need for severa nce already had been demonstrated when Bryant’s lawyer acted as a se cond prosecutor during his clie nt’s competency hearing. The prosecutor conceded that it was “pretty clear” the defense th eories were antagonistic. Denying the motion, the trial court sa id severance was not necessary because Bryant would not be testifying that Lewis or Whatley told her they committed a crime or revealed to her any details of a crime. Th e trial court agreed, however, to address any problems with the joint tria l if they arose. The tria l court prevented Bryant from testifying about what Lewis and Whatley said to her about the wallet and its contents. Whatley claims Bryant’s lawyer subseque ntly questioned witnesses in a way that appeared to be directed at convicting Wha tley and Lewis, even for crimes having no relationship at all to the charges against Brya nt. According to Whatley, the trial court acknowledged this near the end of the tria l. And during closi ng argument, Bryant’s32 lawyer attacked the arguments made by the other defense lawyers and pointed to evidence proving the other defendant s guilty. In respon se to an objection about this issue during trial, Bryant’s lawyer ex plained that he wanted to be sure the jury did not conclude his client was involved in the robberies in any way.
Those circumstances do not render the trial unfair unless the evidence adduced by Bryant’s attorney would have been in admissible at a separate trial. ( People v. Jackson,

supra, 13 Cal.4th at p. 1208.) Whatley iden tifies no otherwise-inadmissible evidence elicited by Bryant’s lawyer. Instead, Whatley argues the eviden ce, especially on the murder charge, was “wholly in sufficient” to support convic tion, and the prosecutor’s burden must have been “impermissibly light ened” by the support of Bryant’s lawyer. That is pure speculation. In any event, our review of a trial court’ s denial of a motion to sever is limited to the time that the motion is heard; if other grounds for severance develop later, a
defendant must renew his severance motion in order to preserve the issue for appeal. ( People v. Ervin (2000) 22 Cal.4th 48, 68.) Whatle y did not renew his motion to sever.
We review a trial court’s denial of a severance motion for abuse of discretion. ( People v. Cleveland (2004) 32 Cal.4th 704, 726.) Th e severance motion here was based

on Aranda-Bruton and the trial court properly conclu ded that none of the defendants presented evidence that would trigge r the rule of those cases. (See People v. Massie (1967) 66 Cal.2d 899, 919 [ Aranda-Bruton error not to order separate trials when one defendant’s confession implicates another].) To obtain severance on the broader ground of “conflicting defenses,” the moving party must demonstrate that the defenses are so irreconcilable that the fact finder’s acceptan ce of one party’s defens e would preclude the acquittal of another. ( People v. Hardy, supra, 2 Cal.4th at p. 168.) Whatley points to an example of such a case in United States v. Tootick (9th Cir. 1991) 952 F.2d 1078, where each defendant swore he had done nothing hi mself but had witnesse d the other defendant viciously attacking the victim. ( Id . at p. 1081.) Even in thatcase, however, a joint trial33 may have been acceptable with proper limiting instructions. ( Id . at p. 1085; see also Zafiro v. United States (1993) 506 U.S. 534, 540 [122 L.Ed.2d 317] [separate trials are not required just because th e chance of acquittal would be improved; prejudice from a joint trial can often be cured with proper instructions].) Defendants did not establish that their defenses were irreconcilable or mutually exclusive, nor do they complain on appeal about limiting instructions bein g denied. The trial court did not abuse its discretion in denying severance. A conviction may be reversed for unf airness so profound a defendant was deprived of a fair trial. ( People v. Pinholster (1992) 1 Cal.4th 865, 933 disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 636 .) Whatley’s contention, however, boils down to a claim that Bryant’s lawyer elicited admissible testimony from trial witnesses and made arguments in closi ng that otherwise might have been overlooked or underemphasized by the prosecutor. Wh atley asserts that he might have been acquitted but for Bryant’s lawyer acting as a sec ond prosecutor. Even if that is true, it is not grounds for reversal becau se the harmful but admissible evidence may well have been presented by the prosecutor if Wha tley had been tried alone. (See People v. Terry (1970) 2 Cal.3d 362, 390 disapprov ed on other grounds by People v. Carpenter (1997) 15 Cal.4th 312, 381 [no prejud ice in joint trial despite Aranda error because same damaging evidence from codefendant could have been admitted in separate trial].) The record does not support a conclusion th at Whatley was deprived of a fair trial simply because it was a joint trial.
B Whatley next claims the prosecutor committed misconduct by charging Bryant with murder even though the prosecutor did not believe Bryant was guilty of murder. Whatley points to no eviden ce that the prosecutor belie ved Bryant was not guilty. In fact, the record indicates otherwise. In the context of a motion to limit questioning of witnesses by Bryant’s lawyer, Lewis’s lawyer suggested there was “not a scintilla of34 evidence” to support the homicide charge against Bryant and, joined by Whatley, asked the prosecutor to dismiss the charge. The pr osecutor declined, pointing to a trial exhibit showing a Bank of America image of Bryant and asking, “Who is using [the murder victim’s] credit card minutes after he’s murdered?” In any event, prosecutors have broad discretion to prosecute or decline to prosecute someone when there is probable cause to belie ve the person has committed a crime. ( Davis v. Municipal Court (1988) 46 Cal.3d 64, 77.) In evaluating whether there was probable cause, we are mindful that “[a] ll persons concerned in the commission of a crime, . . . whether they dire ctly commit the act constituting th e offense, or aid and abet in its commission, or, not being presen t, have advised and encouraged its commission, . . . are principals in any crime so committed.” (Pen. Code, § 31.) Here there was probable cause to charge Bryant with murder. There is evidence that Bryant was dating Lewis’ s mother and Lewis lived at her residence. Lewis and Whatley were friends. Within an hour afte r the murder, Bryant, Lewis and Whatley took
the murder victim’s credit card to a Va lero Country Market, where Bryant made withdrawals from an ATM. Whatley used the card to buy gas at a nother gas station and the group made other unsuccessful attempts to use the card. When th e group returned to Bryant’s residence, she placed the victim’s wallet under a dresser. There was probable cause to believe that Bryant was “concerned in the commission of” the murder. (Pen. Code, § 31.) Whatley’s claim of prosecutorial misconduct lacks merit.
C Whatley further contends his lawyer was ineffective because he did not move to sever Whatley’s trial fr om Lewis’s trial. We have already explained that when tw o or more defendants are jointly charged with any public offense, they must be tried to gether unless the trial court in its discretion orders separate trials. (Pen. Code, § 1098.) Policy favors joint trials and reversal based on denial of a severance motion is rare. ( People v. Mitcham (1992) 1 Cal. 4th 1027, 1048-35 1049.) Whatley does not deny that he and Le wis were charged with the same crimes and asserted the same defenses, but he argues his lawyer should have so ught severance on the
basis that Lewis was a “disruptive and unstable person.” To prove ineffective assistance of co unsel, a defendant must prove that his lawyer’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the outcome would have been different but fo r the lawyer’s error or omission. ( Strickland v. Washington (1984) 466 U.S. 668 [ 80 L.Ed.2d 674].) Applied
to a claim of ineffective assi stance for failure to move fo r severance, a defendant must demonstrate not only that there was no tac tical reason for the lawyer not moving for severance, but also that it is reasonably pr obable the motion would have been granted. ( People v. Mattson (1990) 50 Cal.3d 826, 875-876.) Whatley has not met his burden. Lewis was shackled during trial because of outbursts, violen ce and disruptions during earlier proceedings, includ ing the one at which he wa s found competent to stand
trial. The trial court noted that Lewis had assaulted his lawyer in court and had to be
removed a number of times because of kicking, yelling and screaming. For that reason,
the trial court ordered shackles on his ha nds and feet and a chain around his waist attached to the handcuffs, all a ttached to an eyebo lt in the floor. The trial court tried to minimize the jury’s exposure to the shacklin g, however, by placing a skirt around counsel table. During a discussion of these and ot her security arrangements, the prosecutor reported that an informant warned him Lewi s “wanted to go out” just like another
defendant who had been shot and killed in the same courthouse after stabbing a judge, and that Lewis had threatened to beat up an d spit on his attorney so he could get a new

one.36 Whatley does not take a pos ition on the propriety of sh ackling Lewis, but claims
the fact that Lewis was shackl ed reflected poorly on Whatley. 5 Whatley cites People v.
Duran (1976) 16 Cal.3d 282, 290, for the proposition that sh ackling a defe ndant causes prejudice in the minds of jurors. Duran does discuss potential prejudice arising from a defendant’s shackling, but it is silent about potential prejudi ce to codefendants. Whatley has not cited any authority that might have caused the trial court to grant a motion to sever Whatley’s trial from Lewi s’s trial. And given the tria l court’s denial of the other severance motions, it was not reasonably probab le that such a motion would have been granted. There was no ineff ective assistance of counsel.
DISPOSITION The judgment against Lewis is reversed an d his case is remanded to the trial court for evaluation of whether he is competent to stand trial and to retry him only if and when he has become competent. The ju dgment against Whatley is affirmed.

MAURO , J.

We concur:

BLEASE , Acting P. J.

ROBIE , J.

5 Whatley says the jury saw Lewis in shackl es in the hallway outside the courtroom, but he cites to no evidence of such a sighting in the record. We do not consider matters outside the record. ( People v. Pearson (1969) 70 Cal.2d 218, 221, fn. 1.)