Filed 8/17/20 P. v. Reyes CA2/7

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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.

B295323

(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. Taryle, Supervising Deputy 

Attorney General, and Colleen M. Tiedemann and William H. 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Aurelio Reyes appeals from the judgment extending his 

commitment to a state hospital under Penal 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 been 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. Silvia 

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 wanted 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 continue 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 Reyes at the 

hospital. 
4

Before the People called their first witness, and in response 

to the trial court’s inquiry, Reyes told the court he intended to 

call several witnesses, including a psychiatrist named 

Dr. Panadero and a clinician named Dr. Ronowaski. Reyes also 

provided the address of the prison where the two doctors worked. 

When the prosecutor asked 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 

technician at Patton State Hospital. Mims described an 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. Dr. 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 testified 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. Before 
5

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 did 

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 psychologist, 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 schizoaffective 

disorder, 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 illnesses, 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 day 
6

of trial, over a month later, Reyes did not ask the court to recall 

Dr. Torrez.

C. Reyes’s Attempts To Testify and Call Witnesses

The People rested after Dr. Plotkin completed his 

testimony 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 Honor. 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 now,” the trial court interrupted and asked him 

(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

Dr. “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, his right to testify) and resting, to which 

Reyes responded, “No.” Eventually, Reyes stated, “Your Honor, 

I’ll 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 the 

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 

that you do have a mental disorder.”4 Ignoring Reyes’s request to 

testify, the trial court stated: “Okay. The court deems the 

matter submitted then. There are no witnesses. The court 

believes that Dr. 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 referring to Dr. Hickman, who 

said she was Reyes’s “assigned clinical psychologist.” 
8

The trial court found beyond a reasonable doubt Reyes had 

a mental illness that made him a substantial danger to others. 

The court extended 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 To Allow Him To 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 Fourteenth 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, 

subdivision (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, “in providing broadly that . . . the individual 

would have ‘the rights guaranteed under the federal and State 
9

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, deeming the matter submitted, and 

ruling in favor of the People. There is no question that, had

Reyes’s witnesses 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 (2018) 26 

Cal.App.5th 727, 737 [same]; People v. Williams (1996) 46 

Cal.App.4th 1767, 1777 [“a trial court’s authority to 

exclude 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

The trial court’s reason 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

responded to Reyes’s offer by stating that Dr. Hickman already 

testified Reyes had a mental disorder. That was not a legitimate 

ground for refusing to allow Reyes to call his witnesses. While a 

trial court has “‘discretion 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 

exclude 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 

[“by 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 Reyes’s witnesses would not offer testimony 

favorable to his defense, the trial court effectively precluded

Reyes from presenting any defense, let alone 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

preclude Reyes from calling any witnesses simply because the 

court did not believe Reyes’s offer of proof. Instead, they argue 
11

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 court 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 half ago.”

Nor do the People cite evidence suggesting the witnesses had not 

treated Reyes since 2008. 

The 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. The trial court 

asked Reyes for the names and addresses of his proposed 

witnesses so the court could issue subpoenas. 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 was 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

subpoenas.

6 It appears the trial court assumed Reyes’s witnesses 

treated him in 2008 because Reyes submitted medical records 

from 2008 that he contended showed he did not have a mental 

illness. But the witnesses Reyes sought to call were not the 

authors of, or mentioned in, those records. 
12

B. The Trial Court Violated Reyes’s Due Process Rights 

by Refusing To Allow Him To 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.App.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, Your Honor. I will testify.” When the trial court asked 

Reyes whether he was waiving his right to testify and resting, 

Reyes stated, “No.” By ignoring Reyes and deeming the matter 

submitted, the trial court violated Reyes’s right to testify. 

Citing People v. Johnson (2018) 6 Cal.5th 541, the 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 disruptive behavior that causes the 

defendant to be barred from the courtroom.” (Id. at p. 569.) For 

example, in Johnson the trial court excluded the defendant from 

the courtroom because of repeated disruptive behavior that 

included “violently attack[ing] his attorney, in full view of the 

court and the prospective jurors,” “cursing and spitting” at his 

attorney, and banging 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

informed 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.) The 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 answer any questions . . . .” (Ibid.) Only then did the 

court rule the defendant forfeited 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 the 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 throughout the trial. Reyes 

argued 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 rights 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 present can, of 
14

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 another ground in People v. Scott (2015) 61 

Cal.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 witnesses under the harmless error standard of 

Chapman v. California (1967) 386 U.S. 18, 24. (See 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 

clause”].) “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 reasonable doubt.’” (People v. Allen, supra, 44 
15

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

several mental health professionals that Reyes suffered from 

mental illness and was a substantial danger to others, and a 

hospital employee testified Reyes recently attacked another

hospital employee. But even 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 least 

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 

have 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).) The trial court 

would have had to weigh the credibility of all the witnesses, 

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 that 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 witnesses he 
16

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 court’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 these 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.

FEUER, J.