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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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 Ladon 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 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 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 Bryant to probation for five years. Bryant did 

not appeal. 

 We will address Lewis’s appellate contentions in part I of this opinion, and 

Whatley’s contentions in part II. 

 Lewis interrupted a pretrial proceeding to complain in very profane terms that he 

was angry with his lawyer and did not understand what was going on in the courtroom. 

The trial court promptly conducted an in-camera 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 jury which, three weeks later, determined that 

Lewis was competent. 

 Lewis now challenges his competency trial, claiming (A) the prosecutor 

improperly preconditioned the jurors during voir dire, (B) Lewis was denied his right to 

confront Bryant when the trial court restricted Bryant’s cross-examination, (C) the trial 

court erred in allowing testimony from Bryant’s attorney, and (D) cumulative prejudicial 

error. 

 We conclude Lewis’s claim of cumulative prejudicial error has merit. The 

prosecutor’s conduct during the competency trial was improper and the trial court erred 

in allowing the lay opinion testimony of Bryant’s lawyer. Lewis was not able to 

meaningfully participate in his defense and his constitutional rights to due process and a 

fair trial were abridged. Accordingly, we do not reach his claims 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 for 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 abused its discretion in denying his motion to 

sever his trial from Bryant’s trial, (B) the prosecutor committed misconduct by charging 

Bryant with murder even though the prosecutor did not believe Bryant was guilty of 

murder, and (C) Whatley’s lawyer was ineffective because he did not move to sever 

Whatley’s trial from Lewis’s trial. Whatley’s contentions lack merit 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 head 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 husband also heard the gunshot but estimated the 

time at 4:25 to 4:35 a.m.; neither reported it because they often heard gunshots in 

Stockton. A 9-1-1 call eventually was placed by someone collecting recyclables nearby. 

Paramedics arrived at 6:50 a.m. and 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 minutes later, at a truck stop, another attempt to withdraw 

cash was denied, but a $60 gas purchase went through. 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 that 
4 

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 sale” and a telephone number written on the back window, 

belonged to Whatley. While police were investigating the vehicle, Lewis opened the 

door to the house, engaged in a struggle with police officers and was arrested. He was 19 

years old. When police searched the house, they found ski masks, a loaded gun, the 

murder victim’s wallet, and some property belonging to other recent robbery victims. 

 Bryant testified that she was 40 years old 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 brother. Lewis’s nickname was “No-No” for 

“[Know] No Better.” Bryant later testified that Lewis had “personality 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 beaten 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 around 9:30 p.m. on October 21, 

Bryant and her children picked up Whatley at his house and 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 said she later fell asleep playing 

games on her computer and awoke to see Whatley 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 into Whatley’s Jeep; 

the Jeep had the words “for sale” and a phone number on the back. They drove the 
5 

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 successfully made withdrawals from the ATM inside 

the store. They went to another gas station where Whatley used the card to buy gas. 

 The group made several other unsuccessful attempts to use the card before 

returning to South Orange Street. They arrived there at about 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 series of armed robberies that had begun 

on October 16, based on cell phone records and other evidence, 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 faces, some of the victims identified Lewis 

and Whatley from photographs. Lewis and Whatley were eventually charged with ten 

counts of robbery, four counts 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 proceedings, the trial court determined that a 

mental competency evaluation was warranted under Penal Code section 1368 because of 

Lewis’s bizarre and disruptive conduct in the courtroom. With the agreement of Lewis’s 

court-appointed counsel, the pretrial proceedings 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. The experts reported back to the 

court on March 26, that Lewis was not competent. 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 convened for 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 George Wilkinson, and 

clinical psychologist John Chellsen to evaluate Lewis. Each of them also testified. 

Experts testified that Lewis had a very limited 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 receive 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 that Lewis had a history of head trauma 

and drug use. Based on her own testing of Lewis, Dr. Young said Lewis had an IQ of 65 

by one scale and 69 by another. She said that put him in the 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 misunderstand, 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 actually 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 doubted 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 Lewis 
7 

said to his girlfriend at a jail visit nine months earlier and whether she had reviewed tapes 

of him in jail, read the letters he wrote from jail or talked to the crime victims about him. 

Dr. Young said she had not. The trial court sustained an objection to a question about 

whether people with more information would disagree with her. 

 Lewis had an outburst in the courtroom earlier in the morning when his lawyer 

referred to him as a “crack baby.” He lost further control when Dr. Young suggested that 

a vast proportion of the population was smarter than he was. As Dr. Young continued to 

testify about Lewis’s intelligence, Lewis yelled a stream of epithets and was removed 

from the courtroom. 

 The prosecutor asked Dr. Young on cross-examination if it did not demonstrate 

executive functioning to get someone on his hands and knees while he begs for his life 

and then to shoot and kill that person when he does not give you money. Dr. Young said 

that may be the opposite of executive functioning. 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 “going up to jurors and using them as examples and putting his 

hands on their heads,” to which the prosecutor responded “point well taken” and the trial 

court said “okay.” Dr. Young denied that shooting someone in the frontal lobe showed a 

mind capable of planning and carrying out the plan. 

 The court-appointed psychiatrist, Dr. Rogerson, reviewed all the evidence 

submitted to him by the prosecution and the defense. He diagnosed Lewis with 

psychosis, saying Lewis had auditory and visual hallucinations, disorganized thinking, 

difficulty putting concepts together and limited abstracting ability. Dr. Rogerson also 

found borderline intelligence, posttraumatic stress disorder and antisocial personality 

disorder. Although Lewis was taking numerous antipsychotic drugs prescribed for him in 

jail, they did not “get rid of the voices” and were not of much help. Dr. Rogerson said 

Lewis clumsily exaggerated some of his symptoms, but the psychiatrist had no doubt 
8 

Lewis had no more than a marginal understanding of the legal proceedings and could not 

rationally assist counsel. He believed more antipsychotic treatment and competency 

training would help and recommended six months in a locked hospital ward. 

 On cross-examination, the prosecutor asked Dr. Rogerson whether persons 

committed to a hospital were let out on weekend passes and day passes. 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 pass in as little as three years. Dr. Rogerson said he did not 

have that information. The prosecutor asked whether Dr. Rogerson 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 prosecutor had not sent them to 

him. The prosecutor also asked whether Dr. Rogerson interviewed Lewis’s codefendant 

Whatley or defendant’s mother, whom the prosecutor described as a four-time felon. Dr. 

Rogerson said he did know about the mother’s criminal record. In addition, the 

prosecutor asked whether Dr. Rogerson had heard that 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 referenced Dr. Rogerson’s conclusion in his written report that 

Lewis had an antisocial personality, and asked whether a prisoner with this antisocial 

feature might be prone to deceit and manipulation. Dr. Rogerson agreed. The prosecutor 

added, “In fact, the hallmark of someone with this anti-social feature is you can’t believe 

a word they say. They’re perennial liars. They’re manipulators and they’ve been do -- 

doing it their whole life. Is that a fair statement?” Dr. Rogerson said he would have to 

qualify that, because a prisoner may say the truth because it would benefit them, but he 

agreed you have to be very suspicious. 

 Dr. Rogerson testified that Lewis did not meet the criteria for cooperating with and 

rationally assisting counsel. The prosecutor asked whether there is a difference between 

someone who cannot cooperate with counsel because the person is schizophrenic and 
9 

thinks “people are Martians,” and someone who chooses not to cooperate with counsel. 

Dr. Rogerson agreed there is a difference. The 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 inconsistent, no.” The prosecutor referenced Lewis’s 

school records, asking whether they indicated 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 various incidents of violence, 

misconduct and disruption in Lewis’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 supported his 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. Rogerson questions about whether he 

had interviewed Lewis’s neighbors, read Lewis’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 redirect, 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 records the prosecutor asked about. 

 Dr. Weiss, the court-appointed psychologist, said Lewis’s records showed 

language and intellectual delays by the age of three. She said Lewis had an “incredibly 

chaotic upbringing, even in utero.” His intellectual impairment was evaluated at the age 

of 16 by two doctors whose reports she reviewed. 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 auditory hallucinations in jail and the repeated 

administration of antipsychotic drugs. 
10 

 When Dr. Weiss met Lewis, he denied thoughts of harming himself or others but 

he had poor eye contact, exhibited signs of paranoia and was unkempt and disheveled. 

Dr. Weiss said she always considers malingering and faking and acknowledged Lewis 

might have exaggerated to some extent, but she was confident he had a psychotic 

disorder, a cognitive disorder and borderline intellectual functioning, explaining that the 

current and historic symptoms were consistent with schizophrenia, not yet diagnosed 

because he was so young. It was her opinion that he was in a “decompensated state” and 

was not competent to stand trial. She opined that his anger and psychosis would prevent 

him from working with counsel. 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 recordings of Lewis’s jail visits. Dr. Weiss said 

she did not review them because 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 her statement that she believed 

him, however, saying, “So I guess my point 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 decompensate and be in a much worse situation; 

Dr. Weiss said absolutely. She said stress can cause symptoms to get worse. 
11 

 George Wilkinson, a forensic psychiatrist, was retained by the defense. He 

testified that he spent an aggregate of 9.4 hours 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 noted that Lewis’s mother had been a crack 

cocaine addict throughout her pregnancy and Lewis was in foster care from infancy until 

the age of 13; he also observed that Lewis suffered abuse in foster care and that his 

mental health was questioned beginning at age 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 that Lewis was not diagnosed as psychotic 

at an earlier age. He said such a diagnosis is more common in the late teens through the 

twenties. Lewis’s jail records 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 major mental illness, that being the psychosis,” 

and that “he’d lacked [sic] the capacity to attend in a rational or factual discussion of his 

legal -- legal dilemma.” Dr. Wilkinson said the 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 prescribed 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 state hospital where Dr. Wilkinson believed a 

forced regimen of medicine, treatment groups 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 claims of incompetence in multiple-defendant cases, because one 

defendant goes to a state hospital, his codefendants go to trial and say the one in the 

hospital did it, they are found not guilty, and then the one from the state hospital comes 
12 

back and goes to trial alone and says the other two did it, and he is found not guilty, and 

that is “easier.” Dr. Wilkinson responded, “No. No, no.” The prosecutor asked whether 

Lewis had been arrested in 2006 for cocaine, vandalism and grand theft, but Dr. 

Wilkinson only knew from the medical record that Lewis had been psychologically 

evaluated near that time by juvenile authorities. Dr. Wilkinson agreed that the doctors 

who evaluated Lewis at age 16 did not describe him as delusional and that the Valley 

Mountain Regional Center concluded he was “not so severely handicapped” as to be 

eligible for their services. 

 The prosecutor asked if Dr. Wilkinson had listened to the tapes of Lewis’s arrest 

comments or jail visits -- Wilkinson said he had not -- and then 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 recount what one of the 

robbery victims told police. 

 Asking whether Dr. Wilkinson found the timing of Lewis’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 incompetence. The prosecutor asked, “You don’t find 

that a little suspicious that maybe he’s trying to con you?” Dr. Wilkinson responded, 

“Of course that’s something you always consider” 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 his thinking and behavior in a meeting on 

December 4, 2008. Dr. Wilkinson acknowledged his earlier testimony 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 whether 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 said less than ten percent, but more than the 

general population. He said the jails have become our de facto mental health hospitals. 

 The prosecutor noted that in a probation report from several years earlier, Lewis 

admitted doing all that he could 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 play 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 one that he shared throughout 

the evaluation. Dr. Wilkinson said it was not unusual for a person to be able to talk to his 

mother and girlfriend and still have a low IQ and psychosis. 

 Clinical psychologist John Chellsen, who had written several articles on 

competency to stand trial, evaluated Lewis in December 2008. He reviewed school 

records and also reviewed medical and psychological 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 borderline intelligence, which he estimated at 

approximately the fifth percentile, consistent with testing performed when Lewis was 16. 

Although Lewis was reluctant to cooperate, Dr. Chellsen did not believe he was faking. 

He described Lewis as restless, distracted and subject to auditory hallucinations so strong 

he sometimes blacked out. Dr. Chellsen diagnosed Lewis with severe depression with 

psychotic features or schizoaffective disorder, noting that his predominant problem was 

the psychosis. 

 From the diagnoses and their severity, Dr. Chellsen concluded Lewis could not be 

competent to stand trial unless his psychosis could be reasonably well-controlled. 

Lewis’s intelligence level alone was not determinative. In 25 years of experience, Dr. 
14 

Chellsen said he found malingering in only 10-15 percent of cases 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 officers who had been able 

to communicate with Lewis at various times, correctional officers who overheard him 

communicate with fellow prisoners and visitors 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 people who had known Lewis before the crime: his girlfriend 

between October 2008 and January 2009, his codefendant Bryant, 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 she lived with him. Referring 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 this stuff. You do . . . .” 

The prosecutor pointed to evidence 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 closing 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 experience in evaluating defendants. Defense 

counsel said the jail visitor conversation Lewis had about the fact that he was charged 

with murder was October 23, and Lewis was not put on medication for psychosis until 

November 8. Lewis’s lawyer reminded the jury that they were to evaluate Lewis’s 

competence to stand trial at the time of the competency trial, not at the time of his arrest 
15 

or in 2005 or 2007, when several law enforcement witnesses testified he had seemed able 

to understand them. 

 The jury found Lewis competent 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 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 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 Lewis and 17 years four months 

for Whatley. Additional relevant facts 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 denied his right to confront 

Bryant when the trial court restricted her cross-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 present 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 the Sixth and Fourteenth Amendments 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 determining 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 mentally incompetent.” (Pen. Code, § 1367, 

subd. (a).) When a judge has doubts about a defendant’s mental competence at any time 

prior to judgment, the judge must inquire of defense counsel and, if counsel believes the 

defendant may be incompetent, the court must suspend proceedings and evaluate 

competency. (Pen. Code, § 1368.) “It is unfair to subject any defendant to criminal 

prosecution when he cannot understand the nature 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 section 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 explained, the standard for competence to 

stand trial is whether a defendant “ ‘has sufficient present ability to consult with his 

lawyer with a reasonable degree of rational understanding -- and whether he has a 

rational as well as factual understanding of the proceedings 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 incompetent 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 that the defendant is mentally competent 

unless it is proved by a preponderance of the evidence that the defendant is mentally 

incompetent.” (Pen. Code, § 1369, subd. (f).) This allocation 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 psychiatrists or psychologists to evaluate the 
17 

defendant’s ability to understand the nature of the criminal proceedings and his ability to 

assist counsel in a rational manner. (Pen. Code, § 1369, subd. (a).) The medical experts 

also may recommend antipsychotic medications 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 defense may present additional evidence, after 

which the prosecution may present evidence “regarding the issue of the defendant’s 

present mental competence.” (Pen. Code, § 1369, 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 competence must be reported within 90 days and 

again at six-month intervals for up to three 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 competency hearing followed a series of courtroom 

outbursts in which he had to be restrained and forcibly removed. The trial court first 

stated its concern about competency on the record following a Marsden hearing, after 

which defense counsel stated on the record that he doubted Lewis’s ability to rationally 

assist counsel and understand the nature of the charges and proceedings. Proceedings 

were suspended. The prosecutor asserted that belligerence or unwillingness to cooperate 

is sometimes “misunderstood as an inability to cooperate” and a defendant can abuse the 

distinction. The trial court acknowledged the 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 psychiatrist and a psychologist. 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 improperly preconditioned the jurors during voir 

dire before the competency 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,” whether they thought it 

would be “pretty easy to fake” being incompetent by “doing crazy things” and whether, 

“if you were charged with some serious felonies 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 were extensive. Lewis objected that the prosecutor was “pretrying the case,” but his objection was overruled. 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 prosecutor 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, you 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 juror 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 testimony of experts would have been properly removed for bias, 

but argues the prosecutor’s questions went beyond determining whether the jurors were 

biased and indoctrinated them to believe that it would be easy to fake incompetence and 

that Lewis had done so, duping the medical experts. 
19 

 Counsel’s right to question prospective jurors does not include a right to “educate 

the jury panel to the particular facts of the case, to compel the jurors to commit 

themselves to vote a particular way, to prejudice the jury for or against a particular party, 

to argue the case, to indoctrinate the jury, or to instruct 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 questioning of prospective jurors by counsel. 

(Code Civ. Proc., § 223.) In deciding which questions counsel may ask prospective 

jurors, trial courts are accorded “great latitude.” (People v. Earp (1999) 20 Cal.4th 826, 

852, quoting Mu’Min v. Virginia (1991) 500 U.S. 415, 424 [114 L.Ed.2d 493, 505].) 

Objectionable statements during jury selection are not inherently likely to unduly 

influence a jury’s verdict because, 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.) Reversal based on errors during voir dire is appropriate only 

if there is a reasonable likelihood 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 absent misconduct. (People v. Castillo (2008) 168 Cal.App.4th 

364, 385-386.) 

 We agree with Lewis that many of the prosecutor’s voir dire questions were 

inappropriate. The prosecutor repeatedly asked potential jurors to consider how easy it 

would be for them to fake incompetence if they wanted to avoid responsibility for serious 

misconduct. Those questions did not simply illicit information about a prospective 

juror’s bias toward medical experts, the questions 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 professional to avoid “facing 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. Lewis did not renew the objection and never 

requested a trial court admonition to the jury in that context, 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-examination on the topic of Bryant’s role in the crimes. 

 Sixth Amendment rights are violated when a criminal defendant 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, 354]. ) 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.) Nonetheless, trial judges maintain 

broad discretion to limit cross-examination 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 considered 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 Lewis for three years and had talked to him 

about “everything,” including life, kids and books. She said they did not have trouble 

understanding one another and he could even read and explain 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 only 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 access social media and download 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 Lewis “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 look for 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 the letter and her belief that 

Lewis had a “crazy temper.” Lewis’s counsel said he did not have the letter at the time of 
22 

 Defendant’s counsel began to cross-examine Bryant at the competency trial about 

the charges against her. Bryant acknowledged that she was charged with special 

circumstances homicide. Defense counsel then asked her about a videotape showing her 

using the murder victim’s debit card after the murder. The prosecutor objected that the 

question was beyond the scope of direct examination, 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 “playing 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 crimes were not relevant to a competency trial 

and the requested cross-examination was no more than improper discovery. 

 After Lewis’s counsel asked Bryant if her conversations with Lewis included 

plotting robberies, the trial court interrupted to ask Bryant’s lawyer 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 come 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 cross-examination, the trial court informed 

the jury that the trial court was sustaining the prosecutor’s objection and would not allow 

defense counsel to go into the facts of the underlying crimes. Lewis’s counsel continued 

cross-examination and asked Bryant again whether she understood that she was charged 

 

the competency trial and later said he intended to “file the appropriate motions” about it 

although no such motions appear in the record. 
23 

with special circumstances homicide and was facing 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 testifying under subpoena. 

 When a witness does not submit to cross-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. But Lewis’s counsel did not recall Bryant to the 

witness stand, did not force her assertion of her privilege and 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 clause issue, although Lewis urges us to find 

ineffective assistance of counsel if we conclude he forfeited his claim. 

 We reach the merits and conclude Lewis has not established a violation of the 

confrontation clause. The only 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-examine Bryant on other topics, including the nature of the 

charges pending against her and the fact that she 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 circumstances 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 inferences that might have been drawn if his 

counsel had been allowed additional cross-examination 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 household, which was long before the trial. 
24 

In any event, although Bryant’s testimony indicated that Lewis 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 “pissed off” about it. She knew she faced the 

possibility of life in prison. Lewis does not explain how additional questions about the 

crimes might have impeached Bryant more effectively. 

 Lewis was given the opportunity to confront and cross-examine Bryant about the 

pending criminal charges. There is no indication 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 and asked, “do you, as a layperson, have 

an opinion about [Lewis’s] ability to understand 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 the objection, saying the questions were just 

calling for the witness’s personal observations as a layperson. 

 Bryant’s lawyer testified that he had been an attorney for 20 years, a California 

Highway Patrol officer for seven years, a private investigator for a few years and that he 

had observed Lewis in court. When asked if there was anything 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. According to Bryant’s attorney, Lewis looked 

at him and it became a staring contest. Eventually 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 attorney replied, “-- that he understood that 

I’m Miss Bryant’s attorney. I’m in an adversarial position --” Lewis’s attorney objected 
25 

and moved to strike the testimony as speculative. The trial court sustained the objection 

and granted the motion to strike. But then the prosecutor explained, “I’m asking for his 

lay opinion, not as a doctor, but he’s a layperson, his opinion on [Lewis’s] competence, 

based on his numerous contacts with him in court 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 attorney 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 tendency in reason to resolve questions in dispute. (People v. 

Chatman (2006) 38 Cal.4th 344, 382 [citing Evid. Code, §§ 702 and 210].) A question 

asking a witness to explain what others understood 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 Lewis did or did not understand 

about the proceedings. 

 During cross-examination, Bryant’s attorney 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 present in court during the alleged staring contest, Bryant’s 

attorney testified, “My client wasn’t there. But if I recall correctly, [the defendants’] 

appearances were waived because 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 clarification 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 [with the competency trial].” “Once this 

procedure is completed,” he said, “we can make the case that we’re going to do.” He 
26 

denied that he planned to use the joint trial to “blame everything on Mr. Lewis” but he 

added that the evidence at trial would 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 expertise 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 and is “helpful to a 

clear understanding of his testimony.” (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 was allowed to offer an opinion because it 

was based on his own observations in the courtroom. A layperson who has observed 

actions consistent with drunkenness may offer 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 smell of liquor, slurred speech and an unsteady gait with 

drunkenness].) But a lay person may not give an opinion about whether a person has an 

intellectual disability because such a disability has a legal definition not commonly 

understood by people of reasonable intelligence. (In re Krall (1984) 151 Cal.App.3d 

792, 797.) Such an opinion may be offered only by a qualified expert. (Ibid.) Similarly, 

lay opinion about another person’s ability to distinguish right from wrong is inadmissible. 

(People v. O’Brien (1932) 122 Cal.App. 147, 150.) Qualified psychiatric or 

psychological experts, on the other hand, can and do opine on such matters, even though 

it is ultimately a question for the jury to decide. (People v. Woods (1937) 19 Cal.App.2d 

556, 562-563.) An ordinary layperson’s opinion about whether someone is competent to 

stand trial, like a conclusion about whether he has an intellectual disability or is insane, is 

inadmissible because such opinions are, in the language of Evidence Code section 800, 

not “helpful to a clear understanding” of what the witness observed. Consistent with the 
27 

cited authorities, the lay opinion by Bryant’s attorney about whether Lewis understood 

the proceedings and meaningfully communicated with his lawyer did not meet the 

statutory requirements for lay opinion and should not have been admitted 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 than an expression of the witness’s belief about how the case 

should be decided, the opinion supplants the jury, rather than aiding it. (Summers v. A.L. 

Gilbert Co. (1999) 69 Cal.App.4th 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 admitted evidence deprived a defendant of due process rights 

and rendered the trial fundamentally 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 the errors in his competency trial resulted 

in a reasonable probability that the jury would have reached a more favorable result 

without them. We are mindful that 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 beyond 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 understand the nature of the charges pressed 

against him or cannot assist in his own defense. Even when a defendant resists this 

protection by opposing the evidence of incompetency, it would 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 competency trial was difficult and that the trial court took 

many steps to try and make it fair. At one point 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 testifying 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 courtroom 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 eyebolt 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’ nickname 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 scary” due to Lewis’s kicking, yelling and screaming. 
29 

 Nonetheless, we have described the prosecutor’s inappropriate questions during 

voir dire, the testimony from the medical experts, the prosecutor’s cross-examination of 

the medical experts (including asking about materials that the prosecutor had not 

provided to the witnesses; asking whether persons committed to a hospital are given day, 

weekend or holiday passes; asking whether there 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 Lewis 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 defendant is presumed mentally competent unless 

it is proven by a preponderance of the evidence that the defendant is mentally 

incompetent. (Pen. Code, § 1369, subd. (f).) But the competency 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 officer and a private investigator. He testified 

that the competency trial was delaying a criminal 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 not 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 remand 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 against 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 jointly charged with any public offense,” 

they must be tried together unless the trial court in its discretion orders separate trials. 

(Pen. Code, § 1098.) This discretion is abused if a joint trial leads to the admission of 

otherwise inadmissible incriminating extrajudicial 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 antagonistic to one another. But as the court in 

Greenberger observed, while a trial court certainly 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 shift responsibility to 
31 

one another. (People v. Box (2000) 23 Cal.4th 1153, 1196.) If antagonistic defenses 

alone justified severance, the legislative preference 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 intended to take the stand and be subject to 

cross-examination, but further argument was permitted. The prosecutor asserted the 

defenses were consistent because Whatley and Lewis said they found a wallet with a 

credit card and pin number inside; 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 expected to testify that it did not make sense that the other 

defendants found the credit card within minutes of the murder. Lewis’s lawyer pointed 

out that the conflict and need for severance already had been demonstrated when 

Bryant’s lawyer acted as a second prosecutor during his client’s competency hearing. 

The prosecutor conceded that it was “pretty clear” the defense theories were antagonistic. 

 Denying the motion, the trial court said 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. The trial court agreed, however, to address any 

problems with the joint trial if they arose. The trial court prevented Bryant from 

testifying about what Lewis and Whatley said to her about the wallet and its contents. 

 Whatley claims Bryant’s lawyer subsequently questioned witnesses in a way that 

appeared to be directed at convicting Whatley and Lewis, even for crimes having no 

relationship at all to the charges against Bryant. According to Whatley, the trial court 

acknowledged this near the end of the trial. And during closing argument, Bryant’s 
32 

lawyer attacked the arguments made by the other defense lawyers and pointed to 

evidence proving the other defendants guilty. In response to an objection about this issue 

during trial, Bryant’s lawyer explained 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 inadmissible at a separate trial. (People v. Jackson, 

supra, 13 Cal.4th at p. 1208.) Whatley identifies no otherwise-inadmissible evidence 

elicited by Bryant’s lawyer. Instead, Whatley argues the evidence, especially on the 

murder charge, was “wholly insufficient” to support conviction, and the prosecutor’s 

burden must have been “impermissibly lightened” 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.) Whatley 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.) The severance motion here was based 

on Aranda-Bruton and the trial court properly concluded that none of the defendants 

presented evidence that would trigger 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 acceptance of one party’s defense 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 himself but had witnessed the other defendant 

viciously attacking the victim. (Id. at p. 1081.) Even in that case, however, a joint trial 
33 

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 the 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 being denied. The trial court did not abuse its discretion in 

denying severance. 

 A conviction may be reversed for unfairness 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 closing that otherwise might have been overlooked 

or underemphasized by the prosecutor. Whatley asserts that he might have been 

acquitted but for Bryant’s lawyer acting as a second prosecutor. Even if that is true, it is 

not grounds for reversal because the harmful but admissible evidence may well have been 

presented by the prosecutor if Whatley had been tried alone. (See People v. Terry (1970) 

2 Cal.3d 362, 390 disapproved on other grounds by People v. Carpenter (1997) 

15 Cal.4th 312, 381 [no prejudice 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 that 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 evidence that the prosecutor believed 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 of 
34 

evidence” to support the homicide charge against Bryant and, joined by Whatley, asked 

the prosecutor to dismiss the charge. The prosecutor 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 believe 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 directly commit the act constituting the offense, or aid and abet 

in its commission, or, not being present, 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 after the murder, Bryant, Lewis and Whatley took 

the murder victim’s credit card to a Valero Country Market, where Bryant made 

withdrawals from an ATM. Whatley used the card to buy gas at another gas station and 

the group made other unsuccessful attempts to use the card. When the 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 from Lewis’s trial. 

 We have already explained that when two or more defendants are jointly charged 

with any public offense, they must be tried together 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 Lewis were charged with the same crimes and 

asserted the same defenses, but he argues his lawyer should have sought severance on the 

basis that Lewis was a “disruptive and unstable person.” 

 To prove ineffective assistance of counsel, 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 for 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 assistance for failure to move for severance, a defendant must 

demonstrate not only that there was no tactical reason for the lawyer not moving for 

severance, but also that it is reasonably probable 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, violence and disruptions 

during earlier proceedings, including the one at which he was 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 hands and feet and a chain around his waist 

attached to the handcuffs, all attached to an eyebolt in the floor. The trial court tried to 

minimize the jury’s exposure to the shackling, however, by placing a skirt around counsel 

table. During a discussion of these and other security arrangements, the prosecutor 

reported that an informant warned him Lewis “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 and spit on his attorney so he could get a new 

one. 
36 

 Whatley does not take a position on the propriety of shackling Lewis, but claims 

the fact that Lewis was shackled reflected poorly on Whatley.5 Whatley cites People v. 

Duran (1976) 16 Cal.3d 282, 290, for the proposition that shackling a defendant causes 

prejudice in the minds of jurors. Duran does discuss potential prejudice arising from a 

defendant’s shackling, but it is silent about potential prejudice 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 Lewis’s trial. And given the trial court’s denial of the other 

severance motions, it was not reasonably probable that such a motion would have been 

granted. There was no ineffective assistance of counsel. 

DISPOSITION 

 The judgment against Lewis is reversed and 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 judgment against Whatley is affirmed. 

 MAURO , J. 

We concur: 

 BLEASE , Acting P. J. 

 ROBIE , J. 

 

5 Whatley says the jury saw Lewis in shackles 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.)