1

Filed 1/6/23 P. v. McDonald CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE OF THE STATE OF 

CALIFORNIA,

Plaintiff and Respondent,

v.

CALVIN BENNETT MCDONALD 

III,

Defendant and Appellant.

 A164303

 (Lake County

 Case No. CR941389)

Defendant Calvin Bennett McDonald III was found not guilty by reason 

of insanity of second degree murder (Pen. Code, § 187, subd. (a))

1 and assault 

with force likely to cause great bodily injury (§ 245, subd. (a)(4)). McDonald 

was committed to Napa State Hospital (“NSH”) and, after approximately 18 

months, filed a section 1026.2 petition to be placed on conditional release in 

an outpatient treatment and supervision program. The court denied the 

section 1026.2 petition, finding that McDonald would continue to pose a 

danger to the health and safety of others upon conditional release. We 

affirm.

1 All statutory references are to the Penal Code unless otherwise stated.
2

FACTUAL AND PROCEDURAL BACKGROUND

According to the arrest report, McDonald made multiple calls to friends 

and family indicating he had killed someone. These included a call seeking

assistance to bury a body, and a call informing his grandmother that he had 

stabbed someone to death who had tried to shoot him. McDonald resided in a 

trailer park community and the body of a neighboring resident was found in 

the vicinity. 

McDonald was charged with murder. He was found not guilty by 

reason of insanity of second degree murder (§ 187, subd. (a)) and assault with 

force likely to great bodily injury (§ 245, subd. (a)(4)). In June 2018, he was 

committed to NSH.

In December 2019, McDonald filed the Petition for Transfer to 

Outpatient Treatment underlying this appeal and requested a hearing on his 

ability to be placed on conditional release pursuant to section 1026.2 (referred 

to as “conditional release petition”). The court directed the NSH Medical 

Director to evaluate McDonald and provide a written recommendation, 

pursuant to section 1026.2, subdivision (l) (“section 1026.2(l)”), regarding 

whether McDonald should be released to outpatient treatment or continue 

confinement in the state hospital.

In February 2020, while the petition was pending, McDonald was 

arrested by NSH police and charged with felony assault against another 

patient and multiple counts of resisting officers with force (§ 69). In

September 2020, a jury found McDonald not guilty of the felony assault 

charge but convicted him of three felony counts of resisting officers by force or 

threat.

In March 2020, the state hospital issued its section 1026.2(l) report. 

The 41-page report, prepared by Dr. Paula Astalis, opined “to a reasonable 
3

degree of medical/psychological certainty” that McDonald has a “mental 

defect, disease, or disorder and would be a danger to the health and safety of 

others, even while under supervision and treatment in the community.” It 

identified the following three DSM-52 diagnoses: (1) narcissistic personality 

disorder; (2) other specified personality disorder, antisocial, borderline, and 

paranoid traits; and (3) moderate cannabis use disorder, in a controlled 

environment. The report’s final recommendation stated: “[McDonald] 

continues to demonstrate a lack of insight into his symptoms of mental 

illness, benefits of engaging in treatment, and contributing factors to his 

instant offense. He has continued to demonstrate aggressive behaviors 

(verbal and physical), defiant behaviors, and minimal compliance with staff 

redirections or hospital rules in the past year. [He] demonstrates a pattern of 

minimizing or denying his symptoms and shifting responsibility for his 

behaviors onto staff or the institution. He continues to refuse to consider 

additional or alternative medications to address historical mood and 

psychotic symptoms. Additionally, he has not engaged in the developments of 

a Forensic Relapse Prevention Plan (FRPP), that would demonstrate 

awareness of factors contributing to his instant offense, potential triggers of 

future aggression or violence, or coping strategies to manage emotions and 

thoughts to contribute to violent behaviors.” It was Dr. Astalis’s opinion that 

McDonald should not be placed in a conditional release program to receive 

treatment on an outpatient basis at this time.

For a variety of reasons, the outpatient placement hearing on 

McDonald’s conditional release petition was continued multiple times and 

ultimately took place in December 2021. 

2 DSM-5 refers to the Diagnostic and Statistical Manual of Mental 

Disorders, Fifth Edition.
4

Dr. Kevin Kelly, a licensed psychologist retained by McDonald to 

examine him for potential release from the state hospital in connection with 

his conditional release petition, testified at the hearing on McDonald’s behalf.

Dr. Kelly had previously, in 2018, been appointed by the court to conduct a 

not guilty by reason of insanity examination of McDonald and to prepare a 

report regarding his mental state at the time of his commitment offense. At 

that time, Dr. Kelly had diagnosed McDonald with schizophrenia. In 

preparation for the hearing on the conditional release petition, Dr. Kelly had 

reviewed the state hospital’s reports and periodic updates and met with 

McDonald once in 2020 and another time in 2021. Dr. Kelly spent a 

cumulative five and a half hours with McDonald over the course of three 

years.

According to Dr. Kelly, McDonald’s mental status and condition had 

improved between 2018 and 2021, including a “marked difference” in 

demeanor. In his latest examinations, he did not exhibit paranoid ideation,

delusions of grandeur, impulsivity, or anger, even though the state hospital 

described angry conduct in its report. He exhibited no impulsivity or anger, 

and the only episode of angry conduct had been McDonald’s behavior in the 

wards, an apparent reference to the February 2020 incident. Moreover, 

based on the test he administered, Dr. Kelly found no evidence of mental 

health or personality disorder or psychosis. McDonald continued to suffer

from anxiety disorder but was taking medication to address it.

Dr. Kelly agreed with the assessment in the state hospital report that 

McDonald was no longer suffering from schizophrenia. He also concurred 

with the portion of the hospital report stating “ ‘that no overt symptoms of 

psychosis, mania, or depression have been reported or observed,’ ” in 

McDonald, whose behavior reflected only mild anxiety and irritability. Nor 
5

did he contest the hospital’s finding that McDonald was “motivated to return 

to the community and reports a willingness to work” with a conditional 

release program.

Asked whether he believed McDonald posed a danger to himself or

others if he were transferred to a conditional release program, Dr. Kelly 

stated, “I do not.” He acknowledged that McDonald’s underlying offense 

involved stabbing someone to death and that he had a “violent episode” with 

another inmate while at the state hospital. Nevertheless, Dr. Kelly opined as 

follows: “[T]he diagnosis of anxiety disorder and the present mental status of 

[McDonald] doesn’t warrant treatment in a State hospital. He could be 

treated in the community with no more than ordinary risks, unless he were to 

become under the influence of a substance such as methamphetamine and 

unless he were to become psychotic for any reason, perhaps for lack of 

medication. Barring those conditions, he’s not a risk to the community.” Dr. 

Kelly believed McDonald to be an excellent candidate for conditional release.

On cross-examination, Dr. Kelly acknowledged his limited time with 

McDonald as compared to the time spent by state hospital medical staff. He 

agreed that someone who spent more time with a patient would have more of 

a basis for a diagnosis than someone who spent a few hours with them, but 

he added that even the hospital’s diagnoses changed over time.

Dr. Kelly confirmed he was aware that a February 2020 report by Dr. 

Astalis included the following diagnoses: bipolar disorder; other specified 

personality disorder; narcissistic personality disorder with antisocial and 

paranoid traits; and a cannabis-related disorder. Dr. Kelly did not believe

McDonald suffered from these disorders, as he saw no evidence of bipolar 

disorder or cannabis disorder and any cannabis disorder would be in 
6

institutional remission. Nor did he see any evidence in the reports 

underlying the diagnoses.

Dr. Kelly was also aware that the state hospital’s March 2020 section 

1026.2(l) report included diagnoses of narcissistic personality disorder; other 

specified personality disorder with antisocial, borderline, and paranoid traits;

and moderate cannabis use disorder in a controlled environment. Dr. Kelly

obtained no evidence of these diagnoses in his own examination or the 

reports.

Dr. Kelly also reviewed a state hospital report from August 2021. He 

acknowledged reviewing the summary of McDonald’s rule violations which 

included noncompliance with lab work on urine and drug screens;

noncompliance with staff redirection; violations of unit and hospital rules;

refusal to meet with treatment teams; provocation of peers in crisis; verbal 

hostility and aggression towards staff and peers; threatening violence and 

professional grievances towards staff; and physical altercations with peers.

Dr. Kelly understood that after McDonald was tried in Napa, he was initially 

placed in the state prison hospital and that such a placement was typically 

made for the safety of other inmates and staff. He was familiar with the 

opinion of a state hospital doctor that McDonald was not ready to return to a 

general setting at the state hospital.

On redirect, Dr. Kelly noted that the authors of section 1062.2(l) 

reports typically have very limited contact with a patient and prepare the 

reports based on summarizing the accumulated history and notes from 

hospital staff. Addressing the state hospital’s reports of McDonald’s 

obstreperous behavior, Dr. Kelly stated that McDonald asserted he was 

upholding and asserting his own rights as a patient while also educating his 

peers as to their rights and advocating for them, which was interpreted by 
7

hospital staff as him being a busybody. Dr. Kelly noted that being an 

advocate for one’s own rights was not a sign of any clinical disorder. 

McDonald testified on his own behalf. He immediately addressed the 

February 2020 altercation with another hospital patient. McDonald 

explained that the other patient attempted to touch his genitals, so

McDonald stopped him and established boundaries. Hospital staff and police 

intervened. However, moments later the other patient moved to attack him 

while the officers were busy. McDonald ran to grab the officers’ attention but 

the other patient was closing in on him. The other patient took a swing at 

him, so McDonald proceeded to defend himself. He hit the other patient, who 

fell to the ground. As soon as his attacker fell, the officers intervened.

McDonald placed his hands up and said he was defending himself. He never 

chased after the other patient. Following the incident, hospital staff or 

officers placed him in five-point restraints, which McDonald did not feel was 

justified under the circumstances. He flailed about but never struck any of 

the officers. He described his actions as “lawfully resisting.” While 

restrained, his hands were strapped down to a bed as was his body from 

waist down. Staff refused to release one of his hands so he could use a urinal, 

as he believed they were required to do, and told him they would assist him 

by handling his genitals. McDonald became upset and made angry 

statements. For this episode, McDonald was charged with assault causing 

great bodily injury, but the jury found him not guilty of the charge. He was 

also charged with three counts of resisting officers with force and was 

convicted of those charges for which he was sentenced to sixteen months in 

jail.

McDonald had made several complaints about the treatment he and 

other patients received from hospital staff to the patients’ rights advocate at 
8

the hospital and felt “there was prohibitive retaliation because of this.” 

Hospital staff told him they did not appreciate his complaints and warned 

him to stop complaining. McDonald further testified that he was compliant 

with his medications and would continue to take his medication if released, 

because his goal was to be “reintroduced into the community as a productive 

members of society.” He also had family that would be able to provide him 

social and emotional support if released to community supervision.

The prosecution did not call any witnesses. The court asked if the 

prosecution intended to present evidence. The prosecutor stated, “Unless the 

Court—the Court’s receiving the report.” The court responded, “Are you 

asking me to take judicial notice of the 1026.1(l) report dated March 12th, 

2020?” The prosecutor replied, “Yes.” The court asked, “Any objection to 

that?” McDonald’s attorney responded, “None available.” The court stated it 

would take judicial notice of the specified report and asked, “Any further 

evidence?” The parties indicated there was none.

Following argument, the court took the matter under submission and 

later that day issued a ruling denying McDonald’s petition. Citing the March 

2020 section 1026.2(l) report, the court noted that McDonald had the 

following diagnoses: narcissistic personality disorder; other specified 

personality disorder; antisocial borderline and paranoid traits; and moderate 

cannabis use disorder in a controlled environment. The court observed that

Dr. Kelly, on the other hand, opined the defendant did not have any of these 

diagnoses but such opinion was based primarily on limited interactions with 

McDonald and the administration of a single test. The court also considered

the reports from the state hospital. The court explained: “At this hearing, the 

defendant has the burden of proof by a preponderance of the evidence. The

defendant has failed to meet his burden to prove that he does not suffer from 
9

a mental defect, disease, or disorder. The Court finds the opinions contained 

in the 1026.2 subdivision (l) report regarding the . . . diagnoses and the 

reasons, therefore, are more convincing than those of Dr. Kelly.” 

The court found McDonald “would be a danger to the health and safety 

of others” if released. The court cited several factors for this conclusion: 

“several acts of aggression towards staff and peers during the year prior to

the report were documented; the number of these acts averaged to more than 

two per month; he has consistently refused medication and directions from 

staff; the defendant has not articulated any plans for managing his mental

health; he has a lack of insight into his mental health; he has a long history 

of aggressive and violent behavior which he continues to deny and minimize 

or rationalize.” The court stated McDonald had done just that when he 

testified at his hearing. In concluding, the court found by a preponderance of 

evidence that McDonald would be a danger to the health and safety of others 

due to mental defect, disease, or disorder if under supervision and treatment 

in the community. This appeal followed.

DISCUSSION

A. Denial of Conditional Release Petition

McDonald argues the trial court erred in denying the conditional 

release petition. We disagree.

1. Applicable Law

A defendant found not guilty of a crime by reason of insanity may be 

committed to the Department of State Hospitals. (§ 1026.) “The purpose of 

commitment following an insanity acquittal . . . is to treat the individual’s 

mental illness and protect him and society from his potential dangerousness.” 

(Jones v. United States (1983) 463 U.S. 354, 368.)
10

There are three ways for one confined in a state hospital due to a not 

guilty by reason of insanity verdict to be released from the hospital: “(1) upon 

restoration of sanity pursuant to the provisions of section 1026.2, (2) upon 

expiration of the maximum term of commitment under section 1026.5, or (3) 

upon approval of outpatient status pursuant to the provisions of section 1600 

et seq.” (People v. Sword (1994) 29 Cal.App.4th 614, 620 (Sword), citations 

omitted; § 1026.1, subd(a)–(c).) The third option requires the 

recommendation of the director of the state hospital in which a defendant is 

committed. (Sword, at p. 620.) If a defendant initiates his or her own release 

without the approval of the director of the state hospital or their treatment 

facility, as is the case here, the defendant falls under the first option and 

must show restoration of sanity pursuant to section 1026.2. (People v. 

Dobson (2008) 161 Cal.App.4th 1422, 1432 (Dobson).)

A petition for restoration of sanity pursuant to section 1026.2 involves a 

two-step process. (Dobson, supra, 161 Cal.App.4th at p. 1432.) “The first 

step in the release process requires the defendant, who has filed a release 

application, to demonstrate at a hearing that he or she will not ‘be a danger 

to the health and safety of others, due to mental defect, disease, or disorder, 

while under supervision and treatment in the community.’ ” (People v. Soiu

(2003) 106 Cal.App.4th 1191, 1196 (Soiu).) The defendant has the burden of 

proof by a preponderance of the evidence. (Dobson, supra, 161 Cal.App.4th at 

p. 1433; § 1026.2, subd. (k).) After a defendant files a section 1026.2 petition, 

it is the court’s responsibility “to obtain a recommendation regarding the 

appropriateness of conditional release from the person in charge of the 

defendant’s treatment.” (People v. Endsley (2016) 248 Cal.App.4th 110, 115.) 

Section 1026.2(l) requires the court to obtain the recommendation before it 

takes any action on a section 1026.2 petition. (Id. at p. 118.) “If the court 
11

finds such at the hearing, the defendant is then placed in ‘an appropriate 

forensic conditional release program for one year.’ [Citation.] This is 

commonly called the outpatient placement hearing.” (Soiu, supra, 106 

Cal.App.4th at p.1196.) “ ‘ “Outpatient status is not a privilege given the 

[petitioner] to finish out his sentence in a less restricted setting; rather it is a 

discretionary form of treatment to be ordered by the committing court only if 

the medical experts who plan and provide treatment conclude that such 

treatment would benefit the [petitioner] and cause no undue hazard to the 

community.” ’ ” (Dobson, at p. 1433.) 

“The second step in the release process, often referred to as the 

restoration of sanity trial, normally occurs one year after the defendant has 

been placed in an outpatient program. Typically after one year, the court 

holds a trial to determine whether the defendant’s sanity has been restored.” 

(Soiu, supra, 106 Cal.App.4th at p. 1196.)

2. Standard of Review

The denial of a petition for conditional release under section 1026.2 is

reviewed for an abuse of discretion. (See Dobson, supra, 161 Cal.App.4th at 

p. 1433; People v. Bartsch (2008) 167 Cal.App.4th 896, 900.) Under this 

standard, we defer to the decision of the trial court unless the trial court 

“ ‘exercised its discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice.’ ” (People v. 

Jackson (1992) 10 Cal.App.4th 13, 19.) An abuse of discretion exists when 

the trial court’s “factual findings critical to its decision find no support in the 

evidence” (People v. Cluff (2001) 87 Cal.App.4th 991, 998), but not when the 

defendant merely shows “ ‘ “facts . . . afford[ing] an opportunity for a 

difference of opinion” ’ ” (Sword, supra, 29 Cal.App.4th at p. 626).
12

While McDonald argues that a substantial evidence standard applies 

on rulings for conditional release, he provides no relevant authority in 

support of this position.

3 He has therefore forfeited appellate review of the 

issue (People v. Camel (2017) 8 Cal.App.5th 989, 999) and we shall apply the 

abuse of discretion standard.4

3. Analysis

McDonald cannot demonstrate that the trial court abused its discretion 

in denying his conditional release petition. To be eligible for conditional 

release, it was McDonald’s burden to prove by a preponderance of the 

evidence that he would not be a danger to the health and safety of others due 

to mental defect, disease, or disorder while under supervision and treatment 

in the community. (§ 1026.2.) 

However, there was evidence that McDonald suffered from mental 

defects or disorders. The state hospital’s March 2020 section 1026.2(l) report 

stated that McDonald was suffering from several mental defects or disorders. 

State hospital doctors diagnosed McDonald with narcissistic personality 

disorder; other specified personality disorder, antisocial, borderline, and 

3 The only case McDonald cites in his opening brief is People v. Perez 

(2022) 78 Cal.App.5th 192, which simply includes a recitation of the 

substantial evidence standard itself. (See id. at p. 203 [applying substantial 

evidence standard to support attempted murder conviction].) In his reply 

brief, McDonald cites to Malloy v. Superior Court of Los Angeles County 

(2022) 83 Cal.App.5th 543, for the contention that trial court factual findings 

are reviewed for substantial evidence while application of law to facts is 

reversible only if arbitrary and capricious. As Malloy reviewed an order on a 

motion to transfer venue, and did not involve a petition for conditional 

release, it is not relevant. (Id. at p. 551.) 

4 Even under the substantial evidence standard, the evidence presented 

to the trial court, which includes the section 1026.2(l) report, is more than 

sufficient to support the trial court’s denial of McDonald’s petition for 

conditional release.
13

paranoid traits; and moderate cannabis use disorder in a controlled 

environment. The report provided a narrative discussion of and supporting 

evidence for each diagnosis. While Dr. Kelly disputed these diagnoses, his

difference of opinion did not render the court’s finding an abuse of discretion. 

(Sword, supra, 29 Cal.App.4th at p. 626.) The court noted that Dr. Kelly’s 

assessment was less persuasive because it was based on limited interactions, 

whereas the record indicated McDonald had been under the supervision and 

care of state hospital staff for many months by the time the hospital report 

was completed. It was neither arbitrary nor unreasonable for the court to 

conclude McDonald continued to suffer from mental defects or disorders 

based on the assessment of hospital doctors.

There was also evidence that McDonald would be a danger to the 

health and safety of others due to his diagnoses if he were under supervision 

and treatment in the community. Again, the state hospital’s March 2020 

section 1026.2(l) report stated that McDonald “would be a danger to the 

health and safety of others, even while under supervision and treatment in 

the community.” The report explained that McDonald “has had numerous 

behavioral incidents over the course of his hospitalization, ranging from 

noncompliance with lab work or urine drug screens to noncompliance with 

staff redirection, verbal hostility and aggression toward staff and peers, 

provoking peers when in crisis, and physical altercations with peers.” Over 

five pages, the report described dozens of acts of aggression and examples of 

noncompliance from March 2019 through February 2020. During the 

February 2020 incident about which McDonald testified, he had knocked the 

patient who allegedly attempted to touch him unconscious, requiring surgery 

for the significant facial and jaw injuries that resulted. When McDonald was 

restrained, he was reported to have yelled at staff: “I’m gonna remember this 
14

and come after you once I get out of these restraints. I’m going to break your 

fucking nose you little bitch. Just be glad I’m tied down right now.” With 

respect to this incident Dr. Astalis observed: “[McDonald’s] violent assault on 

a peer . . . in the presence of unit staff and hospital police, demonstrated a 

continued presence of violent ideation, low stress tolerance, impulsivity, and 

inability to consider consequences to self or other. These factors indicate a 

continued heightened risk of danger to others in an inpatient setting. Were 

he to be released to the community without strict supervision and 

monitoring, he would represent a HIGH risk of danger to others.”

The section 1026.2(l) report also contained the findings of a conditional 

release program clinician who opined that McDonald was not ready for 

community outpatient treatment. She believed McDonald needed to develop 

a better understanding of his triggers for and warning signs of psychiatric 

decompensation and would benefit from diversifying his coping skills. He 

still needed to learn to control his emotional reactions in a healthy and 

nonviolent way, as well as gain better insight into his mental illness and 

potential for dangerousness in connection with his symptoms. The clinician 

similarly concluded that McDonald “continues to represent a significant risk 

in the community, and therefore cannot be safely or effectively managed by [a 

conditional release program] at this time.”

McDonald’s own testimony also supported the court’s finding. Even if 

we were to disregard his claimed act of self-defense against his fellow inmate, 

McDonald exhibited aggressive behavior towards the police officers who 

attempted to restrain him following the episode such that a jury found him 

guilty of three separate counts of resisting officers with force. Even Dr. Kelly 

acknowledged that for a certain period McDonald had to be kept in the state 

prison hospital, which is usually the placement for those who presented 
15

safety issues and would not be able to be constrained sufficiently within the 

state hospital to ensure the safety of other inmates and staff. Notably, all of 

this occurred during his commitment at NSH, after he had filed his 

conditional release petition.

On this record, we cannot say that the court abused its discretion by 

concluding McDonald failed to demonstrate his suitability for conditional 

release. And we are not persuaded by McDonald’s contentions on appeal that 

there was no evidence for the court to make its findings because “all of that 

information came from the [March 2020 section 1026.2(l)] report [which] was 

not admitted into evidence,” the report’s contents were not judicially 

noticeable, or that it contained inadmissible hearsay. 

As an initial matter, the section 1026.2(l) report was clearly in 

evidence. While the prosecutor never formally introduced the report into 

evidence, the court took judicial notice of the report without any objection 

from McDonald. “It is well recognized that the purpose of judicial notice is to 

expedite the production and introduction of otherwise admissible evidence.” 

(Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.) After the court 

took judicial notice of the report, the court’s “[a]ny further evidence?” inquiry 

underlined that the court considered the report to be in evidence. In 

addition, throughout the entire outpatient placement hearing, the parties 

repeatedly referenced the report. McDonald’s witness, Dr. Kelly, stated he 

had reviewed the state reports and was asked repeatedly about the state 

hospital’s assessment from the section 1026.2(l) report during direct 

examination. McDonald’s counsel relied on the report in closing argument, 

stating that parts of the report discuss “a lot of [McDonald’s] mental illness 

being in remission.” The court also relied on the report in explaining its 
16

decision denying McDonald’s petition. Under these circumstances, it was 

proper evidence considered by the court in reaching its decision.

Moreover, McDonald’s evidentiary objections to the court’s 

consideration of the section 1026.2(l) report have been forfeited. By failing to 

assert any objection to the report at any point during the outpatient 

placement hearing – even though it was referenced repeatedly throughout 

the hearing – McDonald has forfeited any contention on appeal that the 

report was erroneously considered or relied upon as evidence. (Evid. Code, 

§ 353, subd. (a) [no reversal on appeal absent timely and specific objection to 

erroneous admission of evidence in trial court]; People v. Landry (2016) 2 

Cal.5th 52, 86 [failure to object in trial court to erroneous admission of 

evidence based on grounds raised on appeal forfeits claim of error].) He also 

failed to raise any objection to the trial court taking judicial notice of the 

hospital’s report, including its contents, or using judicial notice in the manner 

sought. Such objections to the court’s judicial notice have also been forfeited. 

(Evid. Code, § 353, subd. (a); Younan v. Caruso (1996) 51 Cal.App.4th 401, 

406, fn. 3 [“[F]ailure to timely object to the propriety of judicial notice . . . is 

deemed a waiver of that objection”].) Likewise, he lodged no hearsay 

objections against the report in the trial court proceeding, which also forfeits 

his hearsay arguments on appeal. (People v. Stevens (2015) 62 Cal.4th 325, 

333 [“the failure to object to the admission of . . . hearsay at trial forfeits an 

appellate claim that such evidence was improperly admitted”].) The court 

expressly asked if there were objections to taking judicial notice of the report 

but McDonald asserted no objection. At the point the court judicially noticed 

the report and asked if there was any “further evidence,” it was clear that the 

court saw the report as evidence. When the court relied on the substance of 
17

the report in explaining its ruling, it was abundantly clear that the court 

considered the report in evidence, yet still no objection from McDonald came. 

B. Ineffective Assistance of Counsel

McDonald argues that to the extent his evidentiary claims are forfeited, 

his counsel was ineffective for failing to object to the trial court taking 

judicial notice of the section 1026.2(l) report and by failing to assert hearsay 

objections to the report. Again, we disagree.

“ ‘In order to establish a claim of ineffective assistance of counsel, 

defendant bears the burden of demonstrating, first, that counsel’s 

performance was deficient because it “fell below an objective standard of 

reasonableness [¶] . . . under prevailing professional norms.” [Citations.] 

Unless a defendant establishes the contrary, we shall presume that “counsel’s 

performance fell within the wide range of professional competence and that 

counsel’s actions and inactions can be explained as a matter of sound trial 

strategy.” [Citation.] If the record “sheds no light on why counsel acted or 

failed to act in the manner challenged,” an appellate claim of ineffective 

assistance of counsel must be rejected “unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation.” [Citations.] If a defendant meets the burden of 

establishing that counsel’s performance was deficient, he or she also must 

show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” ’ ” (People v. Lopez (2008) 42 Cal.4th 

960, 966.)

Here, McDonald has not overcome the presumption that his trial 

counsel’s actions fell within the wide range of reasonable professional 

competence and were matters of sound trial strategies. “[A] mere failure to 
18

object to evidence seldom establishes counsel’s incompetence.” (People v. 

Malone (1988) 47 Cal.3d 1, 33.) “ ‘Generally, failure to object is a matter of 

trial tactics as to which we will not exercise judicial hindsight. . . . A 

reviewing court will not second-guess trial counsel’s reasonable tactical 

decisions.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) In this case, 

McDonald’s trial counsel may not have lodged such objections to the report 

because he used the report in examining Dr. Kelly and in his own closing 

argument. In his direct examination, Dr. Kelly agreed with several aspects of 

the report, including the state hospital’s assessment that McDonald was no 

longer suffering from schizophrenia and was no longer exhibiting signs of 

psychosis, mania, or depression. Relatedly, trial counsel relied on the report 

to argue in closing argument that much of McDonald’s mental illness was in 

remission. (See, e.g., People v. Kelly (1992) 1 Cal.4th 495, 520 [trial counsel 

not ineffective for not objecting to admission of client’s confession which was 

harmful in some respects but which “competent counsel could reasonably 

believe . . . helped the defense in other respects”].) Further, counsel may also 

not have objected to the report to avoid having the prosecutor call multiple 

witnesses, including Dr. Astalis and the conditional release program clinician 

whose testimony may have been even more damaging than the report. 

Choosing to permit admission of a report rather than risking in-court 

testimony is an “informed tactical decision.” (Cf. In re Angelia P. (1981) 28 

Cal.3d 908, 926–927 [“The failure of counsel to object did not reflect any lack 

of competence, because, faced with his adversary’s request for the court to 

take judicial notice, counsel could well have concluded that it was better to 

permit admission of the report rather than to risk presentation of in-court 

testimony from other witnesses whose adverse testimony may have been 

more damaging. This would have been an informed tactical decision.”].) 
19

Since we cannot conclude that there can be no satisfactory explanation for 

counsel’s decision to not assert any evidentiary objections to the section 

1026.2(l) report, we must reject McDonald’s ineffective assistance claim.

DISPOSITION

The trial court’s order denying McDonald’s petition for conditional 

release is affirmed.
20

_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher P.J.

_________________________

Rodríguez, J.

A164303/People v. McDonald