Filed 8/17/20 P. v. Reyes CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent

,

v.

AURELIO REYES

,

Defendant and Appellant

. B 29 5323

(Los Angeles County Super. Ct. No. ZM012732 )

APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert S. Harrison , Judge

. Reversed with
directions

. Rudy Kraft , under appointment by the Court of Appeal, for Defendant and Appellant

. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Ta ryle, Supervising Deputy Attorney General, and Colleen M. Tiedemann and William H.
Shin , Deputy Attorney s General, for Plaintiff and Respondent.2 INTRODUCTION

Aurelio Reyes appeals from the judgment extending his commitment to a state hospital under Pena l Code section 1026.5, subdivision (b), following a court trial. Reyes, who represented himself

at the trial, contends several of the trial court’s rulings violated his due process rights. We conclude that the trial court violated Reyes’ s due process rights by denying his requests to call witnesses and to testify and that these errors were not harmless beyond a reasonable doubt. Therefore, we reverse with directions for a new trial

.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People Petition To Extend Reyes’s Commitment
In the late 1990s Reyes was found not guilty of manslaughter by reason of insanity

, and the court committed Reyes to a state hospital for treatment under Penal Code section
1026

. 1 Section 1026.5, subdivision (a)(1), provides a person committed to a state hospital under section 1026 “may not be kept in actual custody longer than the maximum term of commitment,” which is defined as the “ longest term of imprisonment which could have be en imposed for the offense or offenses of which the person was convicted

. . . .” However, section 1026.5, subdivision (b), provides a court may extend the person’s commitment for a period of two years upon the petition of the prosecuting attorney if the person has been committed for a felony and “ by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others .” ( § 1026.5, subds. (b)(1), (b) (2), (b) (8) ; see People v. Martinez (2016)

1 Statutory references are to the Penal Code.3

246 Cal.App.4th 1226

, 1239

. ) The People have filed multiple successful petitions under section 1026.5, subdivision (b), to
extend Reyes’ s commitment for additional two

- year terms . On April 13, 2018 the People filed a new petition to extend Reyes’ s commitment for two years. Reyes waived his right to a jury trial.

B. The People Present Their Case On the first day of trial Reyes asked to represent himself
under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525] ( Faretta ). The People did not object to the request, but asked that, before the court granted a continuance, the court allow
them to call two witnesses, Remeishia Mims and Dr. Silv ia Torrez, that day. Reyes stated that he had asked his attorney to request a 30

- day continuance , but that the attorney refused. Reyes also said his attorney would not call the witnesses Reyes wanted to call. Reyes made clear , however, he was not trying to delay the proceedings. The trial court allowed the People to call
the two witnesses they wan ted to call that day , stating : “ There’s a concern that these [ Faretta ] motions are made for the purpose of delay. .

. . I don’t see a need to stop today’s proceedings. We have to continue the proceedings anyway and we’re going to

— and
we’ll continu e for your witnesses when they’ re available.”
Before the trial court relieved him

, counsel for Reyes stated
that he had received a police report that day from Patton State Hospital where Reyes was committed and that the prosecutor would have to give Reyes a copy of the report so Reyes would
have it to cross

- examine witnesses. The trial court arranged with the prosecutor to send a copy of the report by fax to Re yes at the hospital.4 Before the People called their first witness, and i n response
to t he trial c ourt’s inquiry , Reyes told the court he intended to call several witnesses, including a psychiatrist named
Dr. Panadero and a clinician named Dr. Ron o w a ski . Reyes also provided the address of the prison where the two doctors worked.
When the prosecutor a sked Reyes to make an offer of proof, Reyes
stated that both Dr. Panadero , who treated Reyes for six months earlier that year ( 2018 ) , and Dr. Ronowaski would testify he did
not have a mental illness.
The People’s first witness was Mims, a psychiatric

tec hnician at Patton State Hospital. Mims described a n incident
in September 2017 where Reyes attacked another psychiatric
technician , for which the police arrested Reyes

. During Mims’s testimony the prosecutor introduced two photographs showing the psychiatric technician’s injuries from the attack. The People ’s second witness was Dr. Torrez, a psychologist
with the Department of Corrections and Rehabilitation who interviewed Reyes in October 2018 for approximately two and a
half hours

. Dr. Torrez opined, based on her observations during
the interview and Reyes’s documented mental health history

, Reyes had schizoaffective disorder, bipolar type, and antisocial personality disorder. D r. Torrez further testified that Reyes had no insight into his mental illnesses and that Reyes denied his
illness for reasons “border [ ing ] on delusional,” such as believing Patton State Hospital lied about his condition to make money.
Dr. Torrez also test ified Reyes posed a “significant danger to
others.” The prosecutor did not finish her direct examination of
Dr. Torrez on the first day of trial , and the People called her on the second day of trial , which occurred 12 days later. Before5

Dr. Torrez testified the second day, however, Reyes stated he had not received a copy of a report Dr. Torrez submitted in support of the People’s petition . The court asked Dr. Torrez to arrange to have someone provide Reyes with a copy of the report. Reyes d id not request a continuance to review the report and proceeded to

cross

- examine Dr. Torrez after the prosecutor finished her
examination. On the third day of trial (which was two days later ) , the People called Dr. Jannavie Hickman, a clinical psychologi st, and
Dr. Gordon Plotkin, an expert in psychiatry. Dr. Hickman had
six or seven therapy sessions with Reyes, beginning in September
2018. Like Dr. Torrez, Dr. Hickman opined, based on her
sessions with Reyes , that Reyes suffered from schi zoaffective
di sorder, bipolar type. Dr. Hickman also testified Reyes denied having a mental illness. Dr. Plotkin interviewed Reyes for an hour and a half in September 2018. As had Dr. Torrez and Dr. Hickman,
Dr. Plotkin concluded Reyes suffered from schizoaffective
disorder. Dr. Plotkin also opined Reyes had “ methamphetamine

use disorder” and antisocial personality disorder. Dr. Plotkin also stated Reyes had no insight into his mental illness es , had no intention of treating his mental illnesses, and posed a “substantial danger of physical harm to others.”
Before the end of the third day of trial, Reyes asked the

court to recall Dr. Torrez, claiming that he “did not receive her report” and “barely had time to go over” it and that he “was not prepared to cross

- examine her.” The court said it would “take that up at another proceeding” because trial had already gone longer than scheduled that day. During the fourth and final day6

of trial, over a month later, Reyes did not ask the c ourt to recall
Dr. Torrez

.

C. Reyes’

s Attempts T

o Testify and Call Witnesses The People rested after Dr. Plotkin completed his
testi mony on the fourth day of trial. 2 Reyes and the trial court had the following exchange: “The Court: It is your opportunity to call witnesses. If you choose to testify then you have waived your right to not testify.
That means .

. . the People will be able to cross

- examine you fully.

“ [ Reyes ] : That’s fine. I will testify, Your H onor. I will testify.
“The Court: So then we’ll have to resume this matter. We’re going to have to transfer you down to Los Angeles to finish
the case.

“ [ Reyes ] : That’s fine with me. ” Reyes asked about the logistics for calling witnesses

. The

court responded : “You did not furnish the court with the information to issue a subpoena . . . . You didn’t give us the correct names. That was the problem.” When Reyes said he
would “do it no w,” the trial court interrupted and asked h im (again) for an offer of proof for his witnesses. Reyes stated that
Dr. Panadero would testify Reyes did not have a psychiatric illness of any kind and that his treating psychologist

2 Dr. Plotkin testified on both the third and fourth days of trial.7

D r. “Lowoski” 3 would testify Reyes did “not suffer from a diagnosis of mental illness” and did “not have schizoaffective
disorder.” Reyes then made a motion to dismiss the People’s petition and a motion to disqualify the trial judge, both of which
the court denied

. After Reyes began arguing about the trial judge’s decision not to disqualify himself , the court asked Reyes whether he was “waiving” (presumably

, h is right to testify) and resting, to which Reyes responded

, “ N o.” Eventually, Reyes stated, “You r H onor, I’l l go ahead and I’ll transfer to Los Angeles and call my
witnesses.” The trial court stated : “At this point

, all of the witnesses you have are only .

. . from 2008, well before th e assault on the staff member.

. . . So at this point they’re not
relevant. ” When Reyes reiterated that Dr. Panadero had recently treated him and would testify Reyes did not “suffer from psychosis,” the trial court said, “But that is not what the treating psychologist said. Your treating psychologist .

. . testified already
tha t you do have a mental disorder.” 4 Ignoring Reyes’ s r equest to testify, the trial court stated : “Okay. The c ourt deems the
matter submitted then. There are no witnesses. The court
believes that D r. Panadero would not testify according to the way
the witnesses testified.” Reyes stated, “I have not had a chance to call my witnesses, Your Honor.”

3 Reyes said Dr. Lowoski (or at least the court reporter transcribed that name), but he probably meant Dr. Ronowaski.

4 The court apparently was r eferring to Dr. Hickman, who

sa id she was Reyes’ s “assigned clinical psychologist.”8 The trial cour t found beyond a reasonable doubt Reyes had a mental illness that made him a substantial danger to others

. The court extend ed Reyes’ s commitment to July 25, 2020

. Reyes timely filed a notice of appeal.

DISCUSSION

A. The Trial Court Violated Reyes’ s Due Process Rights by Refusing T

o Allow Him T

o Call Witnesses The right “to call witnesses in one’s own behalf [has ] long been recognized as essential to due process.” ( Chambers v. Mississippi (1973) 410 U.S. 284, 294 [93 S.Ct. 1038] ; accord, People v. Aguilera (2020) 50 Cal.App.5th 894 , 910 ; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 367 [Sixth Amendment right “ ‘ to have compulsory process for obtaining
witnesses ’ ” in a criminal trial “is applicable to the states under
the F ourteenth Amendment’s due process clause”]; People v. Love (1977) 75 Cal.App.3d 928, 939 [“the defendant’s right to present
witnesses in his own defense is one of his most fundamental rights”] .) 5 “A defendant claiming a violation of this right must

5 Although “ proceedings to extend commitments under section 1026.5 are essentially civil in nature ” ( People v. Dobson (2008) 161 Cal.App.4th 1422 , 1435 )

, section 1026.5, subd ivision (b) (7)

, provides that the defendant in a proceeding to extend a commitment for a defendant found not guilty by reason of insanity “ shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings

. ” As the Supreme Court explained in Hudec v. Superior Court (2015) 60 Cal.4th 815

, “i n providing broadly that

. . . the individual would have ‘ the rights guaranteed under the federal and State9

establish both that he was deprived of the opportunity to present material and favorable evidence and that the deprivation was arbitrary or disproportionate to any legitimate purpose.” ( Bryant, Smith, and Wheeler , at p. 367; accord, Aguilera

, at

p. 911 .)
The trial court violated Reyes’s due process rights by, suddenly and without notice, refusing to permit Reyes to subpoena and call witnesses, deem ing the matter submitted, and
rul ing in favor of the People . There is no question that, had Reyes’s witness es testified he did not have a mental illness (as Reyes twice said they would)

, the testimony would have been highly material and favorable to Reyes’ s defense. (See People v. Cunningham ( 2001 ) 25 Cal.4th 926, 998

- 999 [defendant has a right “to present all relevant evidence of significant probative
value to his or her defense”]; People v. Reardon (201 8 ) 26 Cal.App.5th 727, 737 [same]; People v. Williams (1996) 46 Cal.App.4th 1767, 1777 [“a trial court’s authority to

ex clude relevant evidence must yield to a defendant ’ s right to

a fair trial”]; People v. Burrell

- Hart (1987) 192 Cal.App.3d 593, 599 [“all of [the defendant’s] pertinent evidence should be considered by the trier of fact”]; People v. De Larco (1983) 142 Cal.App.3d 294, 305 [“Inclusion of relevant evidence is tantamount to a fair trial.”].)

Constitutions for criminal proceedings [ ]’ [citations] , the Legislature chose not merely to codify

. . . particular rights ” but

“ to state a broader rule that ” not guilty by reason of insanity

“ commitments call for procedural protections otherwise applicable in criminal cases .” ( Id. at p. 828.) The People do not contend the due process rights Reyes argues the trial court violated do not apply to such proceedings

.10 Th e trial court’s re ason for refusing to allow Reyes to subpoena his witnesses was that the court “believed” they either
would testify similarly to the People’s witnesses or would not testify according to Reyes’ s offer of proof . The court even respond ed to Reyes ’s offer by s tating that Dr. Hickman already testified Reyes had a mental disorder. Th at was not a legitimate ground for refusing to allow Reyes to call his witness es

. While a
trial court has “‘d iscretion to control the admission of evidence in
the interests of orderly procedure and the avoidance of prejudice ’ ” ( People v. Ghobrial (2018) 5 Cal.5th 250, 283 ), the court cannot

e xclu de evidence favorable to the defendant simply because “ the prosecution’s case is strong enough ” ( Holmes v. South Carolina (2006 ) 547 U. S. 319, 329, 331 [126 S.Ct. 1727] ; see id. at p. 331 [“ b y evaluating the strength of only one party ’ s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast
doubt” ]). Doing so “ violates a criminal defendant’s right to have ‘“a meaningful opportunity to present a complete defense .”’” ( Ibid. ; see Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142] ; People v. Ahmed (2018) 25 Cal.App.5th 136,

144

. ) By assuming Re yes ’s witnesses would not offer testimony
favorable to his defense

, t he trial court effectively preclude d Reyes from presenting any defense, let alon e a complete one

. (See People v. Barquera (1957) 154 Cal.App.2d 513, 517

- 518 [trial
court denied the defendant a fair trial by stating “ ‘ I don ’ t have to let you offer any ’ ” evidence and repeatedly stating defendant “had no defense”] .) The People do not argue it was proper for the trial court to

pr eclude Reyes from calling any witnesses simply because the

court did not believe Reyes’s offer of proof. Instead, the y argue11

the testimony of the witnesses Reyes wanted to call was not relevant because Reyes’s witnesses treated him over “ a decade before the attack on the hospital employee.” The c ourt did say this , but the record does not support the court’s statement or the People’s argument. 6 In his offer of proof, Reyes stated Dr.
Panadero treated him “up until about a month and a hal f ago.” Nor do the People cite evidence suggesting the witness es had not treated Reyes since 2008.
T he People also argue Reyes did not give the trial court
sufficient information to issue subpoenas for his witnesses

. The record does not support that argument either. Th e trial court asked Reyes for the names and addresses of his proposed
witnesses so the court could issue subpoena s . Reyes provided
that information. The court did not tell Reyes the information he provided was ( purportedly ) insufficient until after the People rested on the last day of trial

, and there is no evidence anyone else informed Reyes the information he provided for the subpoenas was insufficient. There certainly w as no delay on Reyes ’s part in seeking to subpoena witnesses. At the very least,
the court should have given Reyes an opportunity to provide any
additional information the court may have needed to issue the subpoena s

.

6 It appears the trial court assumed Reyes’s witnesses treated him in 2008 because Reyes submitted medical records from 2008 that he contended sho wed he did not have a mental illness. But the witnesses Reyes sought to call were not the authors of, or menti oned in, th o se records.12 B. The Trial Court Violated Reyes’ s Due Process Rights by Refusing To Allow Him T o Testify “A defendant has a fundamental right to testify on his own behalf.” ( People v. Lancaster (2007) 41 Cal.4th 50, 100; see Rock
v. Arkansas (1987) 483 U.S. 44, 49 [107 S.Ct. 2704] [“it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense” ]. ) “It
is one of the rights that are ‘ essential to due process of law in a fair adversary process

. ’ ” ( Rock , at p. 51; accord, People v.
Johnson (1998) 62 Cal.Ap p .4th 608, 617. ) Reyes unequivocally stated he wanted to testify. When the trial court informed Reyes that if he chose to testify the People
could cross

- examine him, Reyes stated : “That’s fine. I will testify, Y our H onor. I will testify.” When t he trial court asked Reyes whether he was waiving his right to testify and resting, Reyes stated, “ N o.” By ignoring Reyes and deeming the matter submitted, t he trial court violated Reyes ’s right to testify. Citing People v. Johnson (2018) 6 Cal.5th 541, t he People argue Reyes forfeited his right to testify by engaging in disorderly and disruptive behavior. It is true the “right to testify

. . . can be forfeited by disorderly or disrupti ve behavior that causes the
defendant to be barred from the courtroom .” ( Id. at p. 5 69 .) For example, in Johnson the trial court excluded the defendant from the courtroom because of repeated disruptive behavior that
included “violently attack [ing] his at torney, in full view of the court and the prospective jurors,” “cursing and spitting” at his attorney, and bang ing and kicking on his cell door from “a lockup adjacent to the courtroom ” during hearings. ( Id. at pp

. 560

- 561. ) Nevertheless, the court initially intended to let the defendant testify by video

. However, after the trial court “repeatedly”13

inform ed the defendant “his testimony would proceed in a question and answer format

, ” the defendant refused to comply
and stated

, “I ’ m going to do what I think is best on my own
behalf

. ” ( Id. at p. 570.) T he trial court also allowed counsel for
the defendant to do a “dry run” outside of the presence of the jury “to see how defendant was going to behave” during examination

, during which the defendant “ offer[ed] unsupported legal conclusions, referred to alleged facts not in evidence, and declined to actually a nswer any questions

. . . . ” ( Ibid. ) Only then did the
court rule the defendant f orfeited his right to testify.
But the trial court here did not preclude Reyes from testifying because he behaved disruptively. There is no evidence Reyes was disruptive, and the trial court made no finding he was.
And t he record shows Reyes’ s conduct was not remotely similar to
the defendant’s conduct in Johnson

. Reyes conducted himself in an orderly and respectful manner throug hout the trial

. Reyes

argu ed with the trial judge’s decision not to disqualify himself
and stated he “want[ed] a new judge.” But when the trial court
indicated it was going to deem the matter submitted unless Reyes sought to introduce evidence, Reyes moved on and said, “I’ll go ahead and I’ll transfer to Los Angeles and call my witnesses.” Reyes’ s request for a new judge was , at worst, a minor irritation;
it certainly did not rise to the level of warranting a complete denial of his fundamental right s to testify and call witnesses

. ( See People v. Johnson

, supra , 6 Cal.5th at pp. 555

- 556 [“What justifies barring a defendant from the trial

. . . is the defendant’s insistence on misconduct ‘so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with
him in the courtroom. ’ ”]; see also People v. Banks (2014) 59 Cal.4th 1113, 1180 [“ ‘ Once lost, the right to be pr esent can, of14

course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. ’ ”]

, disapproved on an other ground in People v. Scott (2015) 61
C al.4th 363 , 391 .)

C. The Trial Court’s Violations of Reyes’s Constitutional Rights Were Not Harmless Beyond a Reasonable
Doubt
The People argue that

, even if the trial court violated Reyes’ s due process rights, Reyes did not suffer prejudice because “there was overwhelming evidence that [Reyes] had no insight into his mental illness and he posed a significant danger to other people.” We review the trial court’s denial of a defendant’s right

to testify or call witness es under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 . (Se e People v.
Allen (2008) 44 Cal.4th 843, 871 [ applying the Chapman
standard to a violation of the defendant’s right to testify] ; People
v. Gonzales (1994) 22 Cal.App.4th 1744, 1759 [ applying the Chapman standard to a “violation of the compulsory process

c lause ”]. ) “Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.” ( People v. Cutting (2019) 42 Cal.App.5th 344, 349; see In re I.F. (2018) 20 Cal.App.5th 735, 781.) Because “issues of credibility are for the [factfinder] to
resolve

. . . . ‘it is only the most extraordinary of trials in which a denial of the defendant’s right to testify can be said to be harmless beyond a re asonable doubt.’” ( People v. Allen

, supra , 4415

Cal.4th at p. 872.) Here, the People presented testimony from

s everal m ental health professionals that Reyes suffered from
mental illness and was a substantial danger to others , and a hospital employee testified Reyes recently attacked a nother hospital employee. But e ven if Reyes’ s testimony alone would not have had much of an impact on the trial court’s ultimate finding (and we cannot say Reyes’s testimony would not have had at lea st some evidentiary value ), the same cannot be said about the testimony the court excluded from the witnesses Reyes intended
to call . Had a mental health professional who recently treated Reyes testified Reyes did not have a mental illness

, there would
ha ve been conflicting testimony on the ultimate question the trial
court had to resolve

— whether

, “by reason of a mental disease, defect, or disorder

, ” Reyes “represent[ed] a substantial danger of physical harm to others

. ” (§ 1026.5, subd. (b).) T he trial court
would have had to weigh the credibility of all the witness es , including the credibility of Reyes and his witnesses

. In making its ruling, the court said to Reyes, “The court doesn’t have any proof on your side that you have no mental illness,” but that was because the court did not allow Reyes to put on his side. The People’s argument th at nothing Reyes or his witnesses might have said or done in Reyes’s defense would have made any
difference reflects a cramped and cynical view of our constitutional rights. (See People v. Hernandez (2009) 172 Cal.App.4th 715, 722 [the “‘right to be heard does not depend upon an advance showing that one will surely prevail at the hearing’”]; Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 205 [“‘“it is no answer to say

. . . due process of law would have led to the same result”’”].) Because the trial

court did not allow Reyes to call even one of the witness es he16

anticipated (and twice represented in response to requests for an offer of proof) would testify on highly probative issues

, we cannot

say the constitutional violations here were harmless beyond a
reasonable doubt. Reyes is entitled to a retrial. (See

, e.g., People

v . Force (2019) 39 Cal.App.5th 506, 521 [ prosecutor’s interference
with the defendant’s right to testify and the trial court ’s

erroneous exclusion of the defendant’s evidence required a retrial]; People v. Cortes (2011) 192 Cal.App.4th 873, 912

- 913 [ trial c ourt’s improper exclusion of the defendant’s expert witness testimony required a retrial].) 7

7 Reyes argues the trial court erred in denying him a continuance to allow him to review the police report of the incident at Patton State Hospital and Dr. Torrez’s report before

cross

- examining Mims and Dr. Torrez

. If the prosecution elects to call Mims and Dr. Torrez on retrial , Reyes will have an opportunity to question them on thes e and any other relevant topics.17 DISPOSITION

The judgment is reversed with directions for a new trial. At the new trial, the trial court is to allow Reyes to subpoena witnesses, call his witnesses to testify at trial, and testify in his defense.

SEGAL, J.

We concur:

PERLUSS

, P. J.

FEU E R , J

.