Filed 12/12/22 P. v. Stelle CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STANFORD JAMES STELLE

III,

Defendant and Appellant.

 B322499

 (Los Angeles County

 Super. Ct. No. INF1500499)

 ORDER MODIFYING 

 OPINION AND DENYING 

 REHEARING 

 NO CHANGE IN THE 

 JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on November 23, 2022,

be modified as follows:

1. On page four, in the second sentence of the second full 

paragraph, replace the semicolon with a comma, and 
2

insert after that comma, “the charging documents, a 

police report regarding the molestation, and defendant’s 

police interview,” so that the full sentence reads:

Dr. Leitman wrote a four-page report based solely on 

an interview with defendant, the charging 

documents, a police report regarding the molestation, 

and defendant’s police interview. 

2. In the fourth sentence of the same paragraph (also on 

page four), which begins, “Because,” delete the second 

word, “defendant,” and replace it with “defendant’s 

answers indicated a lack of ‘knowledge about important 

aspects of the legal system’ and because he,” such that 

the sentence reads:

Because defendant’s answers indicated a lack of 

“knowledge about important aspects of the legal 

system” and because he gave “some bizarre 

responses” during that interview—including that he 

“lived in bushes,” “loves to ride horses,” and has 

problems remembering things—Dr. Leitman opined 

that defendant “would not be able to cooperate with 

his attorney” in his defense. 

3. In the immediately following sentence (also on page 4), 

which begins, “Dr. Clark,” insert “in her nine-page 

report” after the first “and,” so that the sentence reads:
3

Dr. Clark also interviewed defendant, and in her 

nine-page report observed that he had “poor eye 

contact,” a “flat” “affect,” and what appeared to be 

“impaired” “memory function” during that interview. 

4. Delete the sentence that begins at the end of page four 

and continues onto page five— beginning, “In November 

2015”—and replace it with the following sentence:

In November 2015, the parties stipulated that the 

trial court may base its finding of incompetency to 

stand trial on Dr. Leitman’s and Dr. Clark’s reports. 

5. In the sentence that immediately follows (on page five), 

replace “Based on that stipulation, the” with “The,” and 

insert “consequently” after “court,” so that the sentence 

reads:

The court consequently found defendant “mentally 

incompetent to stand trial” and suspended the 

criminal proceedings.

6. At the end of page nine, in the first part of the first

sentence following the bullet point labeled “Testimony of 

Dr. Jones,” replace the phrase “that the prior diagnosis 

of malingering was still valid,” with “his prior opinion 

that defendant was likely malingering,” so that the 

beginning of that sentence reads:
4

Dr. Jones did not reexamine defendant, but 

reaffirmed his prior opinion that defendant was likely 

malingering because . . . 

7. In the same sentence as immediately above (but on page 

10), after the comma that precedes, “(2) Dr. Gilewski’s 

diagnosis,” add a footnote and renumber the subsequent

footnotes accordingly. The footnote should read as 

follows:

3 Although Dr. Jones acknowledged that he had not 

“seen [the] norms for autistic individuals” (that would 

place defendant on “some type of autism scale”), he went 

on to testify that defendant “appeared to be able to 

concentrate and to engage” in a way that “an autistic

person . . . lost in their thoughts way out here . . . might 

not be able to do.”

8. Also in the same sentence as immediately above (on 

page 10), insert between “(6) defendant’s” and 

“neurocognitive disorder” the following: “medical records 

‘indicate[d]’ that his,” so that the last part of that 

sentence reads: 

and (6) defendant’s medical records “indicate[d]” that 

his neurocognitive disorder was not progressive.

9. Delete the first full sentence on page 11, which begins, 

“However, Dr. Jones testified,” and replace it with the 

following sentence:
5

However, Dr. Jones testified that this email did not 

“impact” him in how he “approached this case” and 

that he was “not concerned” about defendant’s release

status when evaluating defendant’s mental health. 

10. On page 18, in the sentence immediately preceding 

the heading “B. Analysis,” replace the word “cast”

with the phrase “constitute a substantial change in 

circumstances or new evidence casting,” so that the 

sentence reads:

Consequently, where the new information 

“substantially duplicates evidence already considered 

at” the prior hearing or any change entails “minor 

changes in the defendant’s mental state,” it does not 

constitute a substantial change in circumstances or

new evidence casting a serious doubt on the prior 

finding and does not warrant convening a new 

competency hearing.

11. In the third full paragraph on page 20, in the second 

sentence, which begins, “There is also no support,”

insert a fourth footnote after “Brady v. Maryland (1963) 

373 U.S. 83,” and renumber subsequent footnotes 

accordingly. The footnote should read:

4 Because a prosecutor’s duty under Brady to 

disclose “favorable” evidence to the defense 

encompasses evidence that impeaches government 

witnesses (Turner v. United States (2017) 137 S.Ct. 

1885, 1893), Brady subsumes the duty of prosecutors 
6

to disclose impeachment evidence first recognized in 

Giglio v. United States (1972) 405 U.S. 150.

12. In the same sentence where the fourth footnote above

is to be inserted, delete “; further, any discovery error 

can be harmless (Buenrostro, supra, 6 Cal.5th at p. 399), 

and as explained below, was harmless error,” and insert 

the following full sentence as the third sentence of the 

paragraph:

Further, and contrary to what defendant argues in 

his petition for rehearing, the nondisclosure of 

favorable evidence violates Brady only if the evidence

was “material” to the outcome of the proceeding 

(People v. Beck & Cruz (2019) 8 Cal.5th 548, 557), 

and violations of the Criminal Discovery Act are 

subject to harmless error analysis (Buenrostro, supra, 

6 Cal.5th at p. 399); as explained below, the ex parte

communication was not material to the outcome of 

the competency proceeding and its omission was 

harmless here. 

13. On page 22, delete the second sentence beneath the 

heading labeled, “2. October 2020 ruling not to convene 

a second competency hearing,” which begins, “Applying 

the standards,” and replace it with the following 

sentence (leaving untouched the citation that follows the 

original sentence):

Applying the standards set forth above, the trial 

court’s ruling was correct as long as substantial 
7

evidence supported its findings that (1) there was no 

substantial change of circumstances, or (2) there was 

no new evidence casting a serious doubt on the 

validity of the trial court’s prior, May 2019 finding of 

competency.

14. In the next paragraph, which is the second full 

paragraph beneath the heading labeled “2. October 

2020 ruling not to convene a second competency hearing,”

delete the first sentence, which begins, “Even if we 

assume,” and replace it with the following sentence:

Even if we assume that the additional evaluations 

defendant proffered in October 2020 qualify as a 

“change of circumstances” or as “new evidence,” the 

trial court had substantial evidence to support its 

rulings that the evaluations did not constitute a 

substantial change in circumstances or new evidence 

that cast serious doubt on the trial court’s prior 

finding that defendant was competent to stand trial. 

15. In the sentence that begins on page 22 and continues 

onto page 23, delete the word “new,” so that the sentence 

reads:

The evidence defendant proffered was largely aimed 

at undermining that subsidiary finding of 

malingering.
8

16. In the first full sentence on page 23, which reads “But 

that new evidence,” delete “new evidence did not cast”

and replace it with “evidence did not constitute a 

substantial change in circumstances or constitute new

evidence that casts,” so that the beginning of the

sentence now reads:

But that evidence did not constitute a substantial 

change in circumstances or constitute new evidence 

that casts a serious doubt on that finding because . . .

17. In the sentence that immediately follows (also on 

page 23), delete “cast no,” and insert in its place, “was 

not a substantial change in circumstance and was not

new evidence casting,” so that the sentence reads:

And because the evidence of defendant’s malingering 

remained unassailed, the additional evidence that his 

feigned memory loss was getting worse was not a 

substantial change in circumstances and was not new 

evidence casting doubt on the prior finding of 

competency. 

18. In the second full paragraph on page 23, in the 

second sentence, which begins with “Thus, defendant 

concludes,” delete “cast” and insert in its place “were a 

substantial change in circumstances and new evidence 

casting,” so that the sentence reads:
9

Thus, defendant concludes, the new diagnoses were a 

substantial change in circumstances and new 

evidence casting doubt on the trial court’s prior 

finding of competency. 

19. In the first sentence of the first full paragraph on 

page 24, which begins “Second, defendant argues,”

delete the word “new,” and insert between “thereby” and 

“casting,” the words “constituting a substantial change 

in circumstances and,” so that the sentence reads:

Second, defendant argues that the evidence regarding 

the prosecutor’s ex parte communication with Dr. 

Jones deprives his opinion of all weight, thereby 

constituting a substantial change in circumstances 

and casting serious doubt on the court’s finding of 

malingering.

20. In the first sentence of the following paragraph (also 

on page 24), which begins, “Third, defendant asserts,”

delete the word “new”; insert “a” between “constituted”

and “substantial”; and insert “change in circumstances 

or new” between “substantial” and “evidence,” so that 

the sentence reads:

Third, defendant asserts that the trial court applied

the incorrect analysis in assessing whether his new 

evidence constituted substantial evidence that casts

serious doubt on the prior competency finding. 
10

21. On page 25, seven lines down, in the sentence 

beginning, “By his argument,” delete the first 

appearance of the word “new”; delete “casts” and insert 

in its place “constitutes a substantial change in 

circumstances or new evidence casting”; and insert after 

“any” “change in circumstances and any,” so that the 

sentence reads:

By his argument, defendant seems to suggest that a 

trial court may not evaluate or weigh whether 

evidence—even if accepted as true—constitutes a 

substantial change in circumstances or new evidence 

casting a serious doubt on the prior finding of 

competency; but accepting defendant’s suggestion 

would mean that any change in circumstances and 

any new evidence—no matter how flimsy or how it 

fits into the overall tapestry of other evidence—would 

mandate a new competency hearing.

22. In the very next sentence (also on page 25), which 

begins “We reject this suggestion,” in the portion of the 

sentence occurring after the semicolon: delete 

“substantial,” and replace it with “evidence of a 

‘substantial’ change in circumstances or of new”; and 

insert between “not on” and “evidence” “evidence that 

shows any change in circumstances or new.” The

sentence from the semicolon onward should read:

Rodas conditions a further competency hearing on a

showing of evidence of a “substantial” change in 
11

circumstances or of new evidence that casts a 

“serious doubt” on the prior finding of competency, 

not on evidence that shows any change in 

circumstances or new evidence that merely suggests 

any doubt. 

23. In the very next sentence, which is the last sentence 

of that paragraph (also on page 25), beginning, “The 

trial court used,” insert between “level of” and “casting,”

“a substantial change in circumstances or new 

evidence,” so that the sentence reads:

The trial court used the proper analysis in this case 

because it accepted Dr. Gilewski’s and Dr. Leitman’s 

evaluations at face value, but determined that they 

did not rise to the level of a substantial change in

circumstances or new evidence casting serious doubt 

on the court’s prior finding of malingering in light of 

the overwhelming other evidence of malingering that 

was unaffected by the new evaluations. 

24. In the first part of the next sentence (also on page 

25), which begins, “Fourth”: Delete “there was” and 

replace it with “the new evaluations constituted a”;

insert between “substantial” and “evidence,” “change of 

circumstances or new”; delete “that the new evaluations 

cast,” and replace it with “casting,” so that the first part 

of the sentence reads:
12

Fourth, defendant urges that the trial court’s 

analysis of whether the new evaluations constituted a 

substantial change of circumstances or new evidence 

casting serious doubt on the prior finding of 

competency was flawed because . . . 

25. On page 28, in the third sentence beneath the 

heading “3. April 2021 ruling not to convene a second 

competency hearing,” replace “‘substantial evidence’”

with “a substantial change in circumstances or new 

evidence,” so that the sentence reads:

The trial court did not err in concluding that those 

items of evidence did not constitute a substantial 

change in circumstances or new evidence that “casts 

serious doubt” upon its prior finding of competency.

26. On page 30, six lines down, insert an additional space 

before the sentence beginning “What is more,” so that 

there are two spaces between that sentence and the one 

preceding it. 

27. In the first full paragraph on page 30, in the first 

sentence, replace “two” with “three,” so that the 

sentence reads:

Defendant offers three arguments in rejoinder. 

28. At the end of the same paragraph mentioned above 

(the first full paragraph), insert the following sentence:
13

Third, defendant in his petition for rehearing argues 

that the weak probative value of the evidence goes to 

its weight and not its admissibility; he is wrong, for if 

defendant were correct that the slight probative 

value of evidence could never preclude its admission, 

section 352 would be a nullity. 

* * *

There is no change in the judgment. 

Appellant’s petition for rehearing is denied. 

——————————————————————————————

CHAVEZ, Acting P. J. HOFFSTADT, J. BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution. 
Filed 11/23/22 P. v. Stelle CA2/2 (unmodified opinion)

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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STANFORD JAMES STELLE

III,

Defendant and Appellant.

 B322499

 (Los Angeles County

 Super. Ct. No. INF1500499)

APPEAL from the judgment of the Superior Court of Los 

Angeles County, Dale R. Wells, Judge. Affirmed.

Dorsey & Whitney, Lynnda A. McGlinn, RJ Zayed, and 

Michael Rowe for Defendant and Appellant.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Charles C. Ragland, Assistant 

Attorney General, A. Natasha Cortina, Annie Featherman 

Fraser, and Lindsay Boyd, Deputy Attorneys General, for 

Plaintiff and Respondent.

* * * * * *

Stanford James Stelle III (defendant) stands convicted of

forcing his much younger cousin to engage in sex acts from the 

time she was five years old until she was 12. On appeal, he does 

not contest his guilt. Instead, he argues that he was not 

competent to stand trial or to be sentenced. He also argues that 

the trial court erred in excluding evidence of his mental state to 

negate the specific intent required for a subset of the sex crimes. 

We conclude that his arguments lack merit, and affirm his 

convictions and sentence.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Defendant and his cousin

Defendant was born in 1978. He completed 11th grade. He 

has access to a substantial sum of money held in a family trust. 

In 2005, defendant injured the frontal lobes of his brain in a 

motorcycle accident.

S. Doe was born in 1998. She is defendant’s cousin.

B. Defendant sexually molests his cousin for nearly 

a decade, despite knowing it was “wrong” to do so

From 2003 (when S. Doe was five years old) until 2011

(when she was 13 years old), defendant sexually molested S. Doe 

every weekend. Initially, defendant would massage S. Doe’s 

chest and stick his finger in her vagina during the showers he

insisted they take together. Defendant then progressed to 
3

making S. Doe lay on the floor while naked, where he would rub

his penis against her vagina until he ejaculated all over her

chest. Defendant eventually started to orally copulate S. Doe and 

to demand that S. Doe orally copulate him, even though she 

would choke and gag as she did so.

To ensure that S. Doe would not tell anyone else about

what he called their “little secret,” defendant would buy S. Doe 

trinkets, candy, and items of clothing.

The molestation ended in 2013. While at their 

grandfather’s 91st birthday party that year, defendant took S. 

Doe into a bedroom and pulled off her pants. S. Doe urged him to 

stop, but he ignored her pleas. It was not until she forcefully

pushed him off her and she got away from him that the years of 

nonstop molestation—except for the brief period when he was in

the hospital after his 2005 motorcycle accident—ceased. 

To family counselors, to police, and to S. Doe, defendant 

admitted that what he had done was “wrong,” that it was “over 

the line,” and that he would “take it back” if he could. When S. 

Doe called defendant in March 2015 with law enforcement

covertly listening in, defendant agreed with S. Doe that he had 

“sexually touch[ed]” S. Doe and that it was “wrong” to do so, but 

refused to say anything more because he did not “want anybody

else to hear what [he was] saying.”

II. Procedural Background

A. Initial complaint

In March 2015, the People filed a criminal complaint

against defendant alleging 14 felonies arising out of his 

molestation of S. Doe.

In a 2015 interview by a defense investigator, defendant 

stated that he knew he was charged with having sex with a 
4

minor. He reported that he was innocent because S. Doe’s 

mother (defendant’s aunt)—who had a “drug abuse problem”—

“was trying to extort money from [him] and his family” by

making up these allegations and then demanding money in 

exchange for keeping quiet about them.

B. Adjudication of competency to stand trial

In May 2015, and after defendant’s attorney did the same, 

the trial court “declare[d a] doubt as to defendant’s mental 

competence” to stand trial and suspended the criminal 

proceedings. 

The trial court appointed two experts to evaluate 

defendant—Dr. Michael Leitman (Dr. Leitman) and Dr. Joy

Smith Clark (Dr. Clark). Dr. Leitman wrote a four-page report 

based solely on an interview with defendant; Dr. Leitman 

reviewed no other documentation about defendant and did not 

administer any tests. Because defendant gave “some bizarre 

responses” during that interview—including that he “lived in 

bushes,” “loves to ride horses,” and has problems remembering 

things—Dr. Leitman opined that defendant “would not be able to 

cooperate with his attorney” in his defense. Dr. Clark also 

interviewed defendant, and observed that he had “poor eye 

contact,” a “flat” “affect,” and what appeared to be “impaired”

“memory function” during that interview. Because defendant

also denied knowing anything about the legal process, Dr. Clark

opined that a “question remains whether there is some cognitive 

impairment or deficit,” but that “malingering”—that is, the

possibility that defendant was pretending to have mental 

competency issues—“cannot be completely ruled out.” 

In November 2015, the parties stipulated to a finding that 

defendant was not competent to stand trial based on Dr. 
5

Leitman’s and Dr. Clark’s reports. Based on that stipulation, the 

court found defendant “mentally incompetent to stand trial” and

suspended the criminal proceedings. 

From November 2015 until November 2019, defendant was 

housed in two mental health facilities. Those facilities provided 

the following progress reports:

● March 2016 report. In a report dated March 2016, 

the first facility reported that defendant was “not yet competent 

to stand trial.” The report indicated that defendant likely suffers 

from “cognitive deficits” such as having “poor concentration” and 

being “forgetful,” but that he was also malingering insofar as he 

was “exaggerating secondary symptoms [of those deficits] for [his 

personal] gain.” Specifically, the report documented that 

defendant’s results on the Test of Memory Malingering (TOMM) 

“indicate[d] [defendant] was very likely exaggerating memory 

impairment at the time of testing.” The report further cited 

defendant’s inability to remember his own age as providing 

additional evidence of his exaggeration of his memory deficits. 

● August 2016 report. In a report dated August 2016, 

the second facility reported that defendant was not yet competent 

to stand trial because he was “unable to demonstrate adequate 

knowledge” regarding court proceedings. Like the prior report, 

this report diagnosed defendant as having a “[m]ajor 

[n]eurocognitive [d]isorder due to [the] [t]raumatic [b]rain 

[i]njury” from his 2005 accident, but that defendant was

malingering by “exaggerat[ing] his deficits.” Specifically, the 

report noted that defendant “has great difficulty expressing

himself to his treatment providers but he speaks rapidly and

confidently” to his fellow inmates and to persons on the phone.
6

● March 2017 report. In a report dated March 2017, 

the second facility relayed that defendant was still not competent 

to stand trial due to his lack of understanding of the nature of the

charges against him. Despite staff working with defendant with 

flashcards to teach him court procedure, defendant continued to

express no knowledge. The report noted that defendant’s “brain 

injury has left him with a somewhat odd presentation at times, 

which in a psychiatric setting, may be mistaken for mental

illness.”

In September 2017, the second facility certified to the trial 

court that defendant was competent to stand trial, and submitted 

an assessment letter in support of its certification. In the letter, 

the facility diagnosed defendant with (1) a “[m]ajor 

[n]eurocognitive [d]isorder, [d]ue to a [t]raumatic [b]rain 

[i]njury,” resulting in “[m]ild” “behavioral disturbances,” and (2) 

“malingering” because he was “intentionally” “exaggerating” the 

“genuine cognitive impairments” caused by his neurocognitive 

disorder. The letter set forth three reasons for its finding of

malingering: (1) defendant was exaggerating his lack of 

knowledge about legal processes because his reported mastery of 

court-related information had “actually worsened,” which “does 

not make sense from a neurocognitive standpoint,” (2) defendant 

was “feigning some cognitive and memory problems” because his 

lack of memory was “selective,” insofar as he would accurately 

remember certain “names and events” and “provide details,” but 

would purport to not remember anything about the charges

against him or the legal process, “despite this being the focus of 

treatment for the past 14 months,” and (3) defendant would act 

forgetful and nonresponsive when being evaluated, but was 
7

“observed speaking rapidly and confidently while using the 

telephone and while speaking with his peers.”

After receiving the certification, the trial court appointed 

Dr. William Jones (Dr. Jones) to evaluate defendant’s competency 

to stand trial. Dr. Jones reviewed a January 2019 evaluation 

prepared by an expert retained by defendant named Dr. Michael 

Gilewski (Dr. Gilewski). In that report, Gilewski opined that 

defendant had a (1) “severe attention, memory, and executive 

functioning impairment,” and (2) a “prior diagnosis . . . for 

[a]utism [s]pectrum [d]isorder.” Dr. Jones agreed with Dr. 

Gilewski that defendant had a genuine neurocognitive disorder 

stemming from the 2005 brain injury, but found that defendant 

was malingering by exaggerating the deficits from that disorder. 

In support of his opinion that defendant was malingering, Dr. 

Jones cited (1) defendant’s result on a separate TOMM test Dr. 

Jones administered in April 2019, which indicated a “high 

likelihood of malingering,” and (2) defendant’s disoriented affect

when being interviewed by experts, as contrasted with 

defendant’s affect on 13 recorded jail calls, where defendant 

“appeared to be alert and responsive” and engaged in a “higher

level of discourse.”

On May 24, 2019, and based upon the above-stated 

information, the trial court declared defendant to be competent to 

stand trial and reinstated the criminal proceedings.

C. Resumption of criminal proceedings

In November 2019, the trial court held the preliminary 

hearing on the charges in the pending criminal complaint and 

held defendant to answer for most of them. The People filed a 13-

count information alleging six counts of engaging in lewd and 
8

lascivious conduct with a minor (Pen. Code, § 288, subd. (b)(1)),1

six counts of aggravated sexual assault (§ 269, subd. (a)(4)), and 

one count of oral copulation with a minor 10 years or younger (§ 

288.7, subd. (b)).

D. Defendant’s eve-of-trial challenge to competency

A few weeks before trial was set to begin in late October 

2020, defendant’s attorney asked the trial court to declare a 

doubt about defendant’s competency and to suspend the criminal 

proceedings. Because the request was not accompanied by any 

evidentiary support, the trial court denied the request without 

prejudice. 

On October 19, 2020, defendant moved the trial court to 

reconsider its ruling. In support of the motion, defendant 

supplied evidentiary support—namely, updated evaluations from 

Dr. Gilewski and Dr. Leitman. The trial court ruled that a 

motion for reconsideration was procedurally improper, but offered 

to construe the defense motion as one to suspend the criminal 

proceedings due to defendant’s incompetence.

The court then held a three-day evidentiary hearing on the 

question of whether there had been a “substantial change of 

circumstances or new evidence . . . casting serious doubt on the 

validity of the prior finding of the defendant’s competence.” If so, 

the court would declare a doubt about defendant’s competency 

and suspend the proceedings; if not, the matter would proceed to 

trial. The following evidence was presented at the hearing2:

1 All statutory references are to the Penal Code unless 

otherwise indicated. 

2 Defendant’s attorney agreed that defendant would have the 

right to a jury trial at a second competency hearing should one be 
9

● Testimony of Dr. Gilewski. Dr. Gilewski testified that 

(1) he had diagnosed defendant with two new mental 

conditions—namely, (a) autism spectrum disorder and (b) 

schizotypal personality disorder, which renders defendant “out of 

touch with reality,” (2) that the results of the TOMM test (which 

indicated that defendant was malingering) did not account for 

these two new mental conditions, and (3) a malingering test Dr.

Gilewski administered to defendant (called the M-FAST test) did 

not show any malingering. Dr. Gilewski also opined that 

defendant’s “mental status has decreased significantly from the 

2016 assessment.” Dr. Gilewski acknowledged that the severity 

of the charges against defendant and their possible sentences 

gave defendant a motive to malinger, but opined that defendant’s 

lack of knowledge about trial procedure and his inability to

remember things rendered him not competent to stand trial.

● Testimony of Dr. Leitman. Dr. Leitman testified that

the autism and schizotypal personality disorder had 

“contributed” to the earlier findings of malingering, and undercut 

the validity of those findings. Dr. Leitman administered 

defendant a malingering test (called the SIMS test). Although 

the results of that test indicated that defendant was malingering 

if the test results were “strict[ly] analy[zed],” Dr. Leitman felt it 

was appropriate to ignore those results because defendant 

“doesn’t always see the world the same way you and I would.”

● Testimony of Dr. Jones. Dr. Jones did not reexamine 

defendant, but reaffirmed that the prior diagnosis of malingering

was still valid because (1) Dr. Gilewki’s diagnosis of autism and 

necessary, but that defendant had no right to a jury trial at this 

threshold evidentiary hearing to determine the necessity for such

a second hearing. 
10

schizotypal personality disorder did not undermine the TOMM 

test results because autism exists along a spectrum that includes 

people who have a “relatively high intellectual functioning” and 

because defendant was not “delusional” (and hence not divorced 

from reality, as persons with schizotypal personality disorder 

typically are), (2) Dr. Gilewski’s diagnosis, as well as defendant’s 

current conduct in rocking back and forth and appearing 

distracted and unfocused on reality, was impossible to reconcile 

with defendant’s ability to have “linear” conversations about the 

real world, as reflected in 13 recorded jailhouse calls in 2018 and 

2019 with his family and friends, (3) the M-FAST test Dr. 

Gilewski administered was unhelpful because it was designed to 

test malingering for “symptoms of severe mental illness” rather 

than malingering with respect to one’s memory, which was the 

chief deficit stemming from defendant’s 2005 neurocognitive 

injury, (4) defendant’s allegedly faulty memory was “selective”

insofar as he could remember some things but not anything about 

criminal procedure, (5) numerous other doctors at the second 

mental health facility—including Dominique Kinney, Joseph Liu, 

Debra Richards and Melissa Jajko—had all independently 

concluded that defendant was malingering by exaggerating his 

faulty memory, and (6) defendant’s neurocognitive disorder was 

not progressive. Dr. Jones frankly admitted that all of this 

evidence indicated a “possibility” and “likel[ihood]” of 

malingering, but that he could not make any absolute, “for sure”

diagnosis. Dr. Jones acknowledged that, prior to completing his 

first report in 2019, the prosecutor assigned to the case at that 

time had emailed him to advise him that defendant’s “time” at 

the second facility “ha[d] expired,” such that if defendant were 

“found incompetent [back in 2019], [defendant could] not continue 
11

treatment” and could “essentially no longer be prosecuted for his 

crime.” However, Dr. Jones testified that this email did not affect 

his analysis because defendant’s release status had nothing to do 

with his evaluation of defendant’s mental health.

● Testimony of correctional officers. Two correctional 

officers who regularly interacted with defendant testified that 

defendant did not display any odd behaviors while in custody 

(such as rocking back and forth or giving a “1000-mile stare”), 

that defendant interacted normally with other inmates, and that 

defendant remembered his name and other details from 

conversation to conversation.

● Jailhouse calls. Thirteen jailhouse calls between 

defendant and others were introduced. As Dr. Gilewski agreed, 

on those calls, defendant’s conversation and thought processes 

were not “confused” or “disorganized,” and his “affect” was not 

“flat”; to the contrary, defendant on those calls had “focused” and 

task-oriented conversations with his family and/or friends. 

At the conclusion of the evidentiary hearing, the trial court 

gave a detailed oral ruling denying defendant’s motion. As a 

threshold matter, the court ruled that defendant had not 

presented any “new evidence” because Dr. Gilewski’s diagnosis of 

autism “could have been raised at the first hearing” (given that it 

appeared in Gilewski’s January 2019 report). More to the point, 

the court ruled that neither Dr. Gilewski’s nor Dr. Leitman’s 

evaluations casted “serious doubt” on the court’s prior finding 

that defendant was competent to stand trial. As the court 

explained, the prior finding was based upon the fact that 

defendant had been malingering by exaggerating any genuine 

impairments he had. Although Dr. Gilewski and Dr. Leitman 

now opined that the prior finding of malingering was useless 
12

because the TOMM test that supported that finding was invalid 

due to the additional autism and personality disorder diagnoses, 

the court determined that their new opinions did not cast any 

serious doubt upon the prior finding of malingering in light of the

still-undisputed facts that (1) defendant’s faulty memory was 

“selective,” because defendant failed to retain information about 

the legal system; and (2) defendant was engaging in regular, 

reality-based and linear conversations whenever he was not 

being evaluated, as the correctional officers’ testimony and jail 

calls indicated. The court was “very concerned” by the 

prosecutor’s ex parte communication with Dr. Jones, but ruled 

that the solitary communication did not undermine Dr. Jones’s

opinion given Dr. Jones’s testimony that it had not affected his 

analysis and given that numerous other doctors came to the very 

same conclusion about defendant’s malingering. Summing up, 

the court explained that the new evaluations did not “indicate 

that [defendant] is not competent” and did not indicate that he 

lacked “the ability to assist his attorney in the preparation of the 

defense.” “The issue,” the court put it, “is not whether [defendant

is] able to [assist his counsel], the issue is whether he’s willing

to.”

E. Trial

Defendant’s trial began in the fall of 2020.

Defendant sought to call Dr. Gilewski as a defense witness

to testify that defendant suffered from two “mental disease[s] or 

defects”—namely, autism and schizotypal personality disorder—

that precluded him from forming the specific intent necessary to 

be convicted of any of the lewd and lascivious conduct counts. 

The trial court excluded this evidence under Evidence Code 

section 352, ruling that Dr. Gilewski’s opinion was not 
13

particularly probative on the question of defendant’s mental state 

at the time of the crimes (that is, between 2003 and 2012) because 

Dr. Gilewski’s evaluations all occurred in or after 2019 and

because there was no contemporaneous evidence (from 2003 

through 2012) indicating defendant suffered from either

condition. As a result, the court reasoned, Dr. Gilewski’s 

backwards-in-time extrapolation that defendant suffered from 

these conditions 10 to 15 years earlier was speculative, such that

the probative value of Dr. Gilewski’s testimony was substantially

outweighed by the danger that it might confuse the jury and

result in unfair prejudice.

Defendant took the stand. Notwithstanding his prior 

admissions to sexually touching S. Doe, defendant testified that 

the only time he touched S. Doe was during “tickle fights” and 

that S. Doe’s allegations were the product of S. Doe’s mother 

trying to extort $30,000 from defendant to pay off a drug debt the 

mother owed. Defendant testified that his prior admissions of 

impropriety were lies aimed at placating S. Doe’s mother. 

Because defendant, while on the stand, spoke haltingly, 

rocked back and forth, and seemed confused, the trial court 

permitted defendant to call Dr. Gilewski to testify that defendant 

suffered from a major neurocognitive disorder and from autism 

spectrum disorder, both of which could explain his 

unconventional behavior while testifying. The trial court then 

gave an instruction limiting the jury’s use of Dr. Gilewski’s 

testimony, informing the jury that persons with “a developmental

disability, or a cognitive, mental, or communication impairment”

were not “any more or less credible than any other witness.” In 

rebuttal, the People called two prison officials who testified that 

defendant acted normally outside of the courtroom.
14

The jury convicted defendant of all charges.

F. Defendant’s eve-of-sentencing challenge to 

competency

Right before sentencing was to occur in February 2021, 

defendant’s attorney again moved the court to declare a doubt 

about defendant’s competency, to suspend the proceedings, and to 

conduct a second competency hearing. This motion was based 

upon a January 2021 evaluation performed by Dr. Gilewski, who 

opined that (1) additional testing of defendant showed that 

defendant was not malingering, chiefly because defendant’s 2005 

traumatic brain injury was “exaggerat[ing] the impairment

associated with [defendant’s] autism spectrum and schizotypal 

[personality] disorders,” and (2) defendant’s condition was once 

again demonstrated by defendant’s confusion during his 

presentencing interview with the probation officer, where 

defendant purported not to understand Miranda warnings. The 

court convened an evidentiary hearing in April 2021. Defendant 

submitted on Dr. Gilewski’s updated evaluation. The People 

offered transcripts from several more calls defendant made from 

jail in February 2021; on those calls, defendant “remembered 

things,” “made remarks that were in context consistent with the 

conversation,” and was able to “track” the conversational thread 

of the other speaker. The probation officer testified. In an oral 

ruling, the trial court found that this additional evidence did not 

cast any serious doubt on the prior finding that defendant was 

competent (because he was continuing to malinger).

After also denying defendant’s pending motion for a new 

trial, the trial court sentenced defendant to prison for a term of 

105 years to life plus 38 years. 

G. Appeal
15

Defendant filed this timely appeal. 

DISCUSSION

In this appeal, defendant argues that the judgment against

him must be vacated, not due to insufficient evidence of his guilt, 

but rather because (1) he was not competent to stand trial or be 

sentenced, and (2) the trial court wrongly excluded Dr. Gilewski’s 

proffered trial testimony that defendant’s autism and

neurocognitive injuries precluded him from forming the specific 

intent to commit a subset of the charged crimes. Regarding the 

first issue, we review the trial court’s competency rulings with 

“great deference” (People v. Mai (2013) 57 Cal.4th 986, 1033), and

more to the point, we “review . . . a trial court’s ruling concerning

whether another competency hearing must be held . . . . for 

substantial evidence.” (People v. Huggins (2006) 38 Cal.4th 175, 

220 (Huggins).) Regarding the second issue, we review the trial 

court’s evidentiary rulings for an abuse of discretion. (People v. 

Flores (2020) 9 Cal.5th 371, 409.)

I. Defendant’s Competency to Stand Trial

Defendant challenges all three of the trial court’s 

competency rulings—namely, (1) the court’s May 2019 ruling 

finding defendant had regained his competency to stand trial, (2) 

the court’s October 2020 ruling finding that defendant remained 

competent to stand trial, and (3) the court’s April 2021 ruling 

finding that defendant remained competent to be sentenced.

A. The law of competency to stand trial, generally

The constitutional guarantee of due process as well as 

California statutory law provide that criminal defendants may be

tried and sentenced only if they are mentally competent at the 

time of trial and sentencing. (People v. Rodas (2018) 6 Cal.5th 

219, 230 (Rodas); People v. Medina (1990) 51 Cal.3d 870, 881-882
16

(Medina).) A conviction or sentence imposed upon a person at a 

time when they are not mentally competent must be vacated. 

(People v. Buenrostro (2018) 6 Cal.5th 367, 386 (Buenrostro).)

The substantive standard for assessing competency is a 

function of federal constitutional law and California statute. 

Together, they provide that a criminal defendant is mentally

competent to stand trial and be sentenced if he has (1) 

‘“‘“sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding,”’”’ and (2) ‘“‘“a 

rational as well as factual understanding of the proceedings 

against him.”’”’ (Buenrostro, supra, 6 Cal.5th at p. 386, quoting 

Cooper v. Oklahoma (1996) 517 U.S. 348, 354; Dusky v. United 

States (1960) 362 U.S. 402, 402; § 1367, subd. (a).)

The procedures for assessing competency are defined by 

California statutory and decisional law.

1. Initial assessment of competency

If, at any time prior to judgment where felony offenses are 

involved, a trial court has a “bona fide doubt” as to whether a 

criminal defendant is mentally competent, the court must (1) 

suspend the criminal proceedings, and (2) convene a hearing to 

determine the defendant’s competence. (§ 1368, subds. (a), (b) &

(c); People v. Mendoza (2016) 62 Cal.4th 856, 884 (Mendoza).) A 

trial court should have a “bona fide doubt” about a defendant’s 

competency whenever “substantial evidence of [defendant’s]

incompetence is introduced.” (Medina, supra, 51 Cal.3d at p. 882; 

Rodas, supra, 6 Cal.5th at pp. 230-231; Mendoza, at p. 884.) The 

court’s role in assessing whether there is a “doubt” is narrow—

namely, “to decide whether the evidence of incompetence is 

substantial”; the court is “not to resolve” “conflicting evidence 

regarding competence.” (Rodas, at p. 234, italics added.)
17

At the hearing on a defendant’s mental competence that is 

convened once a trial court declares a doubt, the defendant is 

presumed to be competent and thus bears the burden of proving 

his lack of competence by a preponderance of the evidence. (§ 

1369, subd. (f); Buenrostro, supra, 6 Cal.5th at p. 387.) The trial 

court appoints experts to assess the defendant’s competency. (§ 

1369, subd. (a)(1).)

If the trier of fact determines that the defendant is 

mentally competent to stand trial or be sentenced, the court 

reinstates the criminal proceedings. (§ 1370, subd. (a)(1)(A).) If 

the trier of fact determines that the defendant is not mentally 

competent to stand trial or be sentenced, then the court must 

continue to suspend the criminal proceedings and take action to 

attempt to restore the defendant’s mental competence. (§ 1370, 

subds. (a)(1)(B) & (b).) If the doctors treating the defendant 

indicate that the defendant’s competency has been restored, the 

court must convene a restoration hearing to assess whether the 

defendant has regained his mental competence and whether the

criminal proceedings may resume. (§ 1372.)

2. Further assessment(s) of competency once a 

defendant has been restored to competency

“If, after a competency hearing, [a] defendant is found 

competent to stand trial, a trial court may rely on that finding”—

and need not convene a further competency hearing—“unless the 

court ‘“is presented [(1)] with a substantial change of 

circumstances or with new evidence” [(2)] casting a serious doubt 

on the validity of that finding.’” (Rodas, supra, 6 Cal.5th at p.

231; People v. Jones (1991) 53 Cal.3d 1115, 1153.) A substantial 

change of circumstances or new evidence “cast[s] a serious doubt”

on the validity of the prior finding only if it “ma[kes] it 
18

unreasonable [for the trial court] to continue to rely on the prior 

competence finding.” (Rodas, at p. 235.) Consequently, where 

the new information “substantially duplicates evidence already 

considered at” the prior hearing or any change entails “minor 

changes in the defendant’s mental state,” it does not cast a 

serious doubt on the prior finding and does not warrant

convening a new competency hearing. (Id. at pp. 234-235; cf. id.

at p. 223 [serious doubt cast when restoration of defendant’s 

competency turns on his ingestion of anti-psychotic medication, 

and defendant stops taking that medication]; In re Sims (2021) 67 

Cal.App.5th 762, 775 [same].)

B. Analysis

1. May 2019 determination that defendant had 

regained his mental competency

Defendant asserts that the trial court’s May 2019 

determination that he had been restored to mental competency is 

incorrect. As noted above, our task is limited to determining 

whether the court’s determination of competency is supported by 

substantial evidence. It is.

Substantial evidence supports the trial court’s finding that 

defendant, although suffering from a neurocognitive disorder 

arising out of his 2005 traumatic brain injury, was nevertheless

competent to stand trial because defendant was malingering—

that is, he was exaggerating the deficits from that disorder to 

make it seem as if he was incapable of understanding the 

proceedings and assisting his attorney. The court’s finding was 

supported by four clusters of evidence. First, defendant’s 

performance on two separately administered TOMM tests 

indicated that there was a “high likelihood” that defendant was

exaggerating his lack of memory (and thereby malingering). 
19

Second, defendant’s faulty memory was “selective” insofar as he 

could retain knowledge on many topics but never any knowledge

on legal procedures, despite being repeatedly reeducated on those

procedures. Third, defendant’s purported difficulties in 

remembering legal concepts was getting worse, despite the focus 

on teaching him those concepts and despite the absence of any 

reason for a deteriorating condition (let alone such a targeted 

deterioration). Fourth, and most significantly, defendant 

appeared to have an “on/off switch” when it came to his purported 

mental competency issues: Defendant would demonstrate a 

faulty memory, a flat affect, a disoriented and confused

demeanor, and hesitation in answering questions when 

questioned by evaluators, but would be “alert,” properly oriented

and “responsive,” and would also display a “high level of 

[conversational] discourse” when interacting with anyone else, 

including during the 2015 phone call with S. Doe, during his 

interview with the defense investigator and the police, during his 

regular interactions with other mental health patients, and 

during the 13 jail calls he made in 2018 and 2019. As our 

Supreme Court has noted, a defendant’s own words can 

constitute ‘“powerfully persuasive”’ evidence of his competency 

(Huggins, supra, 38 Cal.4th at p. 220); here, they most certainly

did.

Defendant resists this conclusion with what boil down to 

two arguments.

First, defendant contends the trial court gave too much 

evidentiary credence to the “stale, thin, and questionable 

[evaluative] reports” from the first facility. In effect, defendant is 

asking us to weigh the evidence differently than the trial court. 

This is beyond our purview where, as here, we are reviewing the 
20

trial court’s finding of competency for substantial evidence. 

(People v. Houston (2012) 54 Cal.4th 1186, 1215 (Houston) [“‘We 

do not reweigh evidence or reevaluate a witness’s credibility.’”].)

Second, defendant makes the following multistep 

argument: Dr. Jones’s opinion (including his administration of 

one of the two TOMM tests) was wholly compromised by the 

prosecutor’s ex parte contact with Dr. Jones prior to the issuance 

of his report; his opinion is entitled to no evidentiary weight 

whatsoever; and there is no other evidence supporting the trial 

court’s finding that defendant was malingering. 

Although we agree with defendant’s position that the 

prosecutor’s conduct in sending a court-appointed expert witness 

an ex parte communication aimed at influencing his opinion is 

egregious, we disagree with defendant’s position that the 

prosecutor’s conduct invalidates the trial court’s finding that 

defendant’s competence had been restored. Our disagreement 

rests on several reasons. 

To begin, our task is to evaluate the evidence before the 

trial court at the time of its May 2019 ruling, and the fact of the

ex parte communication did not come to light until 2020. (People 

v. Panah (2005) 35 Cal.4th 395, 434, fn. 10.) There is also no

support for defendant’s accusation that the prosecutor’s failure to 

disclose the ex parte communication at that time violated Brady 

v. Maryland (1963) 373 U.S. 83 or the Criminal Discovery Act (§ 

1054 et seq.), as both of these mechanisms are tied to the

discovery of evidence prior to the adjudication of guilt rather than 

competence; further, any discovery error can be harmless 

(Buenrostro, supra, 6 Cal.5th at p. 399), and as explained below, 

was harmless here. Relatedly, we reject defendant’s suggestion 

that the failure to disclose the ex parte communication prejudiced 
21

his right to choose whether to have a jury decide whether his 

competency had been restored because a defendant has no right 

to a jury determination regarding the restoration of competency. 

(People v. Murrell (1987) 193 Cal.App.3d 822, 826-827; § 1372, 

subd. (c) [determination of “whether or not the defendant . . . 

recovered competence” is to be “found by the court”].)

Moreover, Dr. Jones’s opinion is not automatically entitled 

to no weight, particularly where, as here, Dr. Jones testified 

under oath that he was not influenced by the ex parte

communication. Defendant cites several out-of-jurisdiction cases

as well as California Rules of Court, rule 5.235, but none of them 

erects a “one ex parte and done” rule that would apply on the 

facts of this case. (Matter of Kenneth C. v. Delonda R. (N.Y. Fam. 

Ct. 2006) 10 Misc.3d 1070(A), *44-*45 [ex parte communication

with expert witness does not disqualify the expert]; G.K. Las 

Vegas Ltd. Partnership v. Simon Prop. Group (D.Nev. 2009) 671 

F.Supp.2d 1203, 1215 [party’s ex parte communication with the 

neutral third-party expert that party requested forfeits the 

party’s right to use that expert’s opinion]; United States v. Kight

(N.D.Ga., July 12, 2017, No. 1:16-cr-99-WSD) 2017 U.S.Dist. 

Lexis 107922, *8-*12 [party should not have ex parte

communication with court’s expert, but not specifying the remedy

for violation]; United States v. Pogany (3d Cir. 1972) 465 F.2d 72, 

78 [impartial experts should be used to evaluate sanity]; Cal. 

Rules of Court, rule 5.235(c) [prohibiting ex parte communication

with court-appointed evaluators in child custody proceedings, but 

not specifying the remedy for violation].)

Lastly, there is ample evidence aside from Dr. Jones’s

testimony that supports the trial court’s finding of restoration of 

competency, including defendant’s “on/off switch,” the selectivity 
22

of his memory loss, and the inexplicable deterioration of his

memory when it came to knowledge about court procedures. 

2. October 2020 ruling not to convene a second 

competency hearing

Defendant next asserts that the trial court’s October 2020 

decision not to suspend the criminal proceedings in order to 

convene a second competency hearing is incorrect. Applying the 

standards set forth above, the trial court erred only if there was

(1) substantial evidence of a substantial change of circumstances

or new evidence, and (2) substantial evidence that the change or 

evidence casts a serious doubt on the validity of the trial court’s 

prior, May 2019 finding of competency. (Rodas, supra, 6 Cal.5th 

at p. 231.) Defendant urges that he offered two new pieces of 

evidence—namely, (1) the updated opinions of Dr. Gilewski and 

Dr. Leitman that defendant also suffered from autism and

schizotypal personality disorder that undercut the efficacy of the 

TOMM test as a measure of malingering as to his memory, and 

(2) the updated opinion of Dr. Gilewski that defendant’s memory 

was deteriorating. 

Even if we assume that the additional evaluations

defendant proffered in October 2020 qualify as “new evidence,”

the trial court did not err in determining that this new evidence 

did not constitute substantial evidence that cast serious doubt on 

the trial court’s prior finding that defendant was competent to 

stand trial. As noted above, the trial court’s prior finding of 

competency was grounded in its subsidiary finding that 

defendant was malingering by exaggerating any deficits he may 

have had from the neurocognitive disorder caused by his 

traumatic brain injury. The new evidence defendant proffered 

was largely aimed at undermining that subsidiary finding of 
23

malingering. But that new evidence did not cast serious doubt on 

that finding because the two new evaluations in no way undercut 

(1) the overwhelming evidence that defendant was regularly

toggling between appearing “out of it” to evaluators and judges,

and being perfectly coherent, capable, and grounded in reality

when interacting with everyone else, and (2) the evidence that

defendant was being selective with his faulty memory, choosing

to pretend he could remember nothing about court processes. 

And because the evidence of defendant’s malingering remained 

unassailed, the additional evidence that his feigned memory loss

was getting worse cast no doubt on the prior finding of 

competency.

Defendant resists this conclusion with a plethora of 

arguments, which we have organized into five different clusters.

First, defendant argues that the new diagnoses of autism 

and schizotypal personality disorder undermine the results of the 

TOMM test; that the TOMM test was the backbone of the trial 

court’s finding that defendant was malingering; and that 

malingering was the sole reason the trial court concluded that 

defendant was competent to stand trial notwithstanding his 

outward behavior. Thus, defendant concludes, the new diagnoses 

cast doubt on the trial court’s prior finding of competency. This 

argument ignores that the TOMM test was only part of the 

evidence of malingering, and that the more persuasive evidence 

of malingering—namely, defendant’s practice of appearing

impaired during evaluations and interactions with court and 

judicial officials but acting normal around everyone else—was in 

no way called into question by the diagnoses of autism and 

schizotypal personality disorder, which according to Dr. Gilewski, 

had existed since defendant’s childhood and yet in no way 
24

affected his ability to be fully coherent and rational when 

defendant chose to be.

Second, defendant argues that the new evidence regarding 

the prosecutor’s ex parte communication with Dr. Jones deprives 

his opinion of all weight, thereby casting serious doubt on the 

court’s finding of malingering. We reject this argument for all of 

the reasons noted above. At oral argument, defendant further 

argued that the invalidation of Dr. Jones’s opinion means that 

there was no prior finding that he had been restored to 

competency, such that we should treat the October 2020 hearing 

as a hearing to determine whether his competency had been 

restored in the first place, rather than a hearing as to whether 

new evidence casted a serious doubt on a prior finding of 

competence. Because we have found, as noted above, that the ex 

parte communication does not invalidate the trial court’s 

restoration of competency finding, that finding would also apply 

if we applied the restoration-of-competency standard at the 

October 2020 hearing.

Third, defendant asserts that the trial court applied the 

incorrect analysis in assessing whether his new evidence 

constituted substantial evidence that cast serious doubt on the 

prior competency finding. Citing People v. Kaplan (2007) 149 

Cal.App.4th 372 (Kaplan), defendant argues that a trial court 

may decide only whether there is “substantial evidence”

warranting a further hearing and may not “weigh” the evidence 

in making that determination. (Id. at pp. 384-385.) Defendant 

misreads Kaplan. Kaplan merely held that the “substantial 

evidence” standard “necessary to trigger an initial competency 

hearing is the same standard required to trigger subsequent 

competency hearings.” (Id. at p. 384.) As our Supreme Court 
25

explained in Rodas, a trial court determining whether to convene 

an initial competency hearing may not weigh the evidence once it 

has determined that there is substantial evidence of a lack of 

competence; but the court is still permitted to evaluate the 

evidence presented to determine whether it rises to the level of 

substantial evidence in the first place. (Rodas, supra, 6 Cal.5th 

at pp. 230-231.) By his argument, defendant seems to suggest

that a trial court may not evaluate or weigh whether new 

evidence—even if accepted as true—casts a serious doubt on the 

prior finding of competency; but accepting defendant’s suggestion

would mean that any new evidence—no matter how flimsy or 

how it fits into the overall tapestry of other evidence—would 

mandate a new competency hearing. We reject this suggestion

because it would give no weight to the court’s prior finding of 

competency, a result that flatly contradicts our Supreme Court’s 

instruction to the contrary; Rodas conditions a further 

competency hearing on a showing of substantial evidence that 

casts a “serious doubt” on the prior finding of competency, not on 

evidence that merely suggests any doubt. The trial court used 

the proper analysis in this case because it accepted Dr. Gilewski’s 

and Dr. Leitman’s evaluations at face value, but determined that 

they did not rise to the level of casting serious doubt on the 

court’s prior finding of malingering in light of the overwhelming 

other evidence of malingering that was unaffected by the new 

evaluations.

Fourth, defendant urges that the trial court’s analysis of 

whether there was substantial evidence that the new evaluations 

cast serious doubt on the prior finding of competency was flawed 

because the court (1) gave greater weight to the reports from Dr. 

Jones and from the second mental health facility, which was 
26

error because those reports were not as recent as the ones from 

Dr. Gilewski and Dr. Leitman, (2) relied on the jail calls from 

2018 and 2019, which was error because they were old, (3) gave 

insufficient weight to the effect of the ex parte communication on

Dr. Jones’s opinion, which was error because the court should 

have viewed the ex parte communication as dispositively 

negating any weight of Dr. Jones’s opinion, (4) gave too much 

weight to Dr. Jones’s testimony when he just read the transcripts 

of the 2018 and 2019 jailhouse calls, which was error because Dr. 

Gilewski listened to less than half of them (six out of the 13

calls), and (5) gave too much weight to the custodial officials’ 

reports of defendant’s ability to interact in a normal manner over 

the opinions of defendant’s paid experts. In all these arguments, 

defendant is urging us to reweigh the evidence; we cannot. 

(Houston, supra, 54 Cal.4th at p. 1215.) What is more, 

defendant’s characterization of the evidence is unduly skewed: 

Defendant complains that Dr. Jones’s opinion is less worthy of 

credence because he only read the transcripts of defendant’s 13 

jail calls, but both of defendant’s experts—Dr. Gilewski and Dr. 

Leitman—also relied chiefly or solely on the transcripts as well; 

further, Dr. Gilewski testified that his review of the audio of 

some of those tapes showed defendant neither “stutter[ing]” nor 

“delay[ing]” his responses to questions, which obliterates the 

notion that defendant’s oral presentation would have created a 

different impression than merely reading the transcripts. 

Defendant’s argument also ignores the law, which has affirmed 

the propriety of considering “testimony from police or jail 

personnel regarding the defendant’s apparent mental state.” 

(Medina, supra, 51 Cal.3d at p. 887.)
27

Lastly, defendant contends that the trial court’s ruling is 

defective because (1) the court mistakenly relayed that Dr. Jones 

had definitively diagnosed defendant as malingering, when Dr.

Jones had actually testified that malingering was “highly likely,”

and (2) the court neglected to rule on both prongs of the 

competency test. Defendant is wrong on both scores. Because we 

are examining the sufficiency of the evidence irrespective of the 

trial court’s actual rationale (e.g., People v. Zapien (1993) 4 

Cal.4th 929, 976), any error in the trial court’s characterization of 

Dr. Jones’s testimony is irrelevant if we otherwise conclude that 

the evidence—properly viewed—does not amount to “substantial 

evidence.” As explained above, we have so concluded. In any 

event, the evidence of malingering (from defendant’s ability to 

turn his ailment on and off at will to his selective memory) is 

overwhelming even though Dr. Jones was careful to speak in 

probabilities rather than absolutes. The court’s ruling is also 

sufficient. Although the court only specifically referenced 

defendant’s “ability to assist his attorney in the preparation of 

the defense,” the court more broadly found that defendant’s 

proffered evidence did not call his “competence” into question. 

Because “competence” necessarily includes the additional finding 

that a defendant has a ‘“rational as well as factual understanding 

of the proceedings against him”’ (Dusky, supra, 362 U.S. at p. 

402), and because the trial court considered—and necessarily 

rejected—Dr. Gilewski’s diagnosis of schizotypal personality 

disorder that meant that defendant was operating in an alternate 

reality, we may comfortably infer that the trial court’s 

competence finding encompassed both aspects of the competency 

test. (E.g., Lynn v. George (2017) 15 Cal.App.5th 630, 642 [“In 

the absence of an express finding, we usually would infer that the 
28

trial court made implied findings to support its decision, and then 

test the implied findings for substantial evidence.”].)

3. April 2021 ruling not to convene a second 

competency hearing

Defendant lastly contends that the trial court’s April 2021

decision not to suspend the criminal proceedings prior to 

sentencing in order to convene a second competency hearing was 

incorrect. Defendant urges that he offered two new pieces of 

evidence—namely, (1) a further updated opinion of Dr. Gilewski

that defendant was not malingering based on administering him 

another malingering test, and (2) defendant’s “confused”

presentence interview with the probation officer. The trial court 

did not err in concluding that those items of evidence did not 

constitute “substantial evidence” that “casts serious doubt” upon 

its prior finding of competency. Dr. Gilewski’s report is repetitive 

of all of his prior reports, and the additional testing and opinions 

he offered in this latest report in no way undermined or 

otherwise impeached the evidence of defendant’s ability to turn 

his odd behavior on and off. And defendant’s confused affect with 

the probation officer is no different than his confused affect in 

front of the jury and the many psychologists who have evaluated 

him; more to the point, it adds nothing to the mix of evidence or 

the fact that all of those instances were the product of 

malingering. Defendant argues that Dr. Gilewski’s most recent 

report should be given greater weight and that Dr. Gilewski is a 

more persuasive witness. Alas, this is yet another invitation to

reweigh the evidence that we must respectfully decline.

II. Evidentiary Ruling

Defendant argues that the trial court erred in not allowing 

Dr. Gilewski to testify that defendant’s autism and schizotypal 
29

personality disorder precluded him from forming the specific

intent that is an element of the six lewd and lascivious conduct 

counts, such that those particular convictions must be vacated.

Relatedly, defendant argues that the trial court also committed 

an instructional error because the court would have been 

required to instruct the jury on how a mental disease or defect 

can negate specific intent if Dr. Gilewski’s testimony had been 

admitted. Because defendant’s claim of instructional error 

hinges on whether the trial court made an incorrect evidentiary

ruling, we start with the evidentiary ruling.

Contrary to what defendant implies, the trial court did not 

exclude Dr. Gilewski’s testimony as irrelevant; instead, the court 

excluded it under Evidence Code section 352 on the ground that 

its probative value was substantially outweighed by the danger of 

unfair prejudice, confusing the jury, undue consumption of time,

and the like. (Evid. Code, § 352.) The trial court did not abuse 

its discretion in so holding. 

The court did not abuse its discretion in ruling that Dr. 

Gilewski’s testimony had little probative value because the court 

had an ample basis to conclude that his testimony was

speculative: Dr. Gilewski reasoned that defendant suffered from 

autism and schizotypal personality disorder between 2003 and 

2012 because defendant suffered from them in 2019, but Dr. 

Gilewski freely admitted he had no contemporaneous evidence 

that defendant had either affliction during the relevant 2003 to 

2012 timeframe.

The court also did not abuse its discretion in ruling that

any probative value this evidence had was substantially

outweighed by the dangers of undue prejudice and confusing the 

jury because the speculative basis for Dr. Gilewski’s opinion left 
30

the jury to guess whether defendant’s current afflictions 

somehow “related back” to the time of the crimes. The testimony

would also have been unduly prejudicial to the People because it 

would have raised the specter of a mental health defense without 

any support that defendant’s alleged mental conditions actually 

precluded the formation of defendant’s specific intent at the time 

of the charged crimes. What is more, admitting this evidence 

would undoubtedly have opened the door for the People to 

respond with evidence that Dr. Gilewski’s entire diagnosis was 

wrong because it was the product of years of malingering by 

defendant. Given the volumes of reporter’s transcripts devoted to 

these very topics prior to trial, the trial court acted within its 

discretion in concluding that relitigating this issue before the jury 

on the basis of a speculative expert opinion was a basis for 

excluding Dr. Gilewski’s testimony under Evidence Code section

352.

Defendant offers two arguments in rejoinder. First, he 

asserts that he has a constitutional right to present a defense. 

This is true, but that right does not trump the rules of evidence, 

including Evidence Code section 352. (People v. Robinson (2005) 

37 Cal.4th 592, 626-627 [‘“[A]s a general matter, the ordinary 

rules of evidence do not impermissibly infringe on the accused’s 

[state or federal constitutional] right to present a defense.”’].) 

Second, defendant asserts that People v. Sotelo-Urena (2016) 4 

Cal.App.5th 732 warrants reversal. It does not. That case dealt 

with whether it was error to exclude expert testimony that

persons who are homeless have a heightened sensitivity to being

threatened because that evidence was relevant to a claim of selfdefense. (Id. at pp. 745-746.) This case is very different, as it 
31

deals with whether it was error to exclude speculative expert 

testimony under Evidence Code section 352.

In light of our conclusion that there was no evidentiary 

error, we need not reach the instructional error or issues of 

prejudice.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

CHAVEZ

_________________________, J.

*

BENKE

* Retired Associate Justice of the Court of Appeal, Fourth 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.