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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 r ule 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B322 4 99

(Los Angeles County Super. Ct. No. INF1500499 )

ORDER MODIFYING
OPINION AND DENYING REHEARING

NO CHANGE IN THE JUDG MENT

THE COURT:
It is or d ered that the opi nion filed herein on N ovember 23, 2022,
be modified as follows:

1. On page four , in the second sen tence of the second full paragraph

, replace the semicolon with a comma, and2 insert after that comma

, “ the charging documents, a police report regarding the m ol e station, 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 r eport regarding the molest ation, and defenda nt ’ s police inter v iew.

2. In the fourth se ntence 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 ‘ kno wledge about important aspects of th e legal system ’ a n d 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 biza rre
responses ” during that interview

— including th at he

“ li ved in bushes, ” “ l oves to ride horses, ” and has problems remem bering things

— Dr. Leitman opined
tha t defendant “ would not be able to cooperate with his attorney ” in his def ense.

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

, which beg ins

, “ Dr. Clark, ” insert “ i n her nin e

- page report ” after the first “ and

, ” so that the se ntence 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

“ im paired ” “ m emory function ” d u ring that interview.

4. Delete the sentence that begins at the end of page four
and continues onto page five

— begin ning

, “ In November
2015 ”

— and replace it with the following sentence :

In November 2015, the parties st ipulated that the

tr ial court may bas e its finding of incompetency to
stand trial on Dr. Le itman ’ s and Dr. Clark ’ s reports.

5. In the se nte nce that immediately follows (on page five)

, replace “ Based on that stipulat ion, the ” with “ The, ” and
insert “ consequently ” af ter “ court, ” so that the sen t ence reads:

The court consequently found defendant “ mentally inc ompetent to stand trial ” and sus pended the criminal proceedings.

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

ollowing the bullet point labeled “ Testim ony 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 re examine defendant, but reaff irmed his prior o p inion that defendant was likely malingering because .

. .

7. In the sam e se ntence as immediately above ( but o n page 10 )

, a fter the comma that precedes, “ (2) Dr. Gile wski ’ s diagnosis

, ” add a footnote and renumber the subsequent footnotes ac cordingly. The f o otnote should r ead 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 w ent on to testify that defendant “ appeared to b e able to
concent r ate and to enga ge ” 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

“ ne urocognit i ve disor der ” the following: “med ical records ‘indicate[d] ’ that his

, ” s o that the last part of that

sentence rea ds:

and (6) defend ant ’ 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 te stified, ” and replace it with the following sentence:5 However, Dr. Jones tes tified that this email did not

“ impact ” him in how he “ approached this case ” and
that he was “ not concerned ” about defendant ’ s rele ase status when e v aluating defendant ’ s mental health.

10. On page 18, in the sentence immediately preceding

t he heading “ B. Analysis

, ” replace the word “ cast ” with the phrase “ cons titute a subst antial change in
circum s tance s or new evidence casting, ” so tha t t he

sentence re a ds:

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

cons titute a substantial change in ci rcumstances or

n ew evidence casting a serious doubt on the prior finding and does not warrant convening a new competen cy hearing.

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

sentence
, which begins

, “ There is al so no support
, ”
in sert a fo urth foo tnote after “ B r ady 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

e ncompasses evidence that impeaches gov ernment witnes s es ( Turner v. United States ( 2017) 137 S.Ct. 1885, 1893)

, Brady subsumes the duty of pr osecut ors6 to disclose impeachment evidence first recognized in Giglio v. United States ( 1 972) 405 U.S. 150.

12. In the same sentence where the fourth foot not e above is to b e inserted

, delete “ ; further , a ny discovery error can be harmless (

Buenr ostro , 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 :

Furt her , and contrary to what defendant ar gues in
hi s 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 vio lat ions of the Cr i minal Discovery Act are subject to harmless er ror analysis ( B uenr ostro , supra , 6 Cal. 5th at p. 399); as exp lained below, the ex parte communication was not m aterial to the outcome of the competency proceeding and its omission was harmless he re.

13. On page 22, delete the second sentence beneath the heading labeled, “ 2. October 202 0 ruling not to co nvene a second compe tency hearing

, ” which begins, “ A pplying
th e standards

, ” and replace it with the following

sentence ( leav ing untouched the cit ation that follow s the original sentence) :

Applying the standards set forth above , the trial

court ’ s ruling wa s correct as long as substantial7 evidence supported its findings tha t (1) there was no
substantial change of circumsta nces, or (2) there was

no n ew evidence casti n g a serious doubt on the validity of the trial cour t ’ s prior, May 2019 finding of competency.

14. In the next paragraph, which is the second full paragraph beneath the heading labeled “2. October
202 0 ruling not to co nvene a second compe ten cy hearing

, ”
dele t e the first sentence

, which begins, “ Even if we

assume, ” and replace it with the following sentence:

Even if we assume that the additio nal evaluations defendant pro ffered in October 2020 qualify as a

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

tr i al court had substantial evidence to support its rulings that the evaluations did n ot constitute a
substantial change in circums tances or new evidence that cast serious doubt on the trial court ’ s prior finding that defendant was comp etent to stand trial

.

15. In the sentence that begins on page 22 and continues onto page 23, d elete the word “ new , ” so that the sentence reads:

The evi dence defendant proffered was largely aimed
at underminin g that subsidia ry finding of malingering.8 16. In the fir s t full sentence o n page 23, which reads “ But that new evidence

, ” delete “ new evidence did not cast ” and replace it with “ evidence did not constit ute a substantial change in circumstances or constitut e new evidence that casts , ” so that the beginning of the

sentence now rea d s:

But that evidence did not constitute a substantial change in circumstances or constitute new evidence that casts a serious d oubt on that finding because

. . .

17. In the sentence that immediately follows ( also on page 23) , delete “ cast n o, ” and insert in it s p lace

, “ was not a subst antial change in circumstance and was not new evidence casting

, ” so tha t the sentence reads:

And bec ause the evidence of defend ant ’ s malingering
remained un assailed, the additional evidence that his feigned mem ory loss was gett i ng worse was not a substantial change in circu mstances and was not new
evidence casting doub t on the prior finding of compet ency

.

18. In the second f

ull paragraph on page 23, in the second sentence, which begins with “ Thus, defendant

conc ludes, ” delete “ c a s t ” and insert in its place “ were a subst antial change in circumstances and new evidence casting, ” so that the se ntence reads :9 Thus, defendant concludes, the new di agnoses were a substantial change in circumstances and new
evidence casti ng doubt on the t r ial c ourt ’ s prior finding of competency.

19. In the first sentence of the f irst full paragraph on page 24, which begins “ Second, defendant ar gues, ”
d elete the word “ new , ” and insert between “ thereby ” and

“ casting, ” the words “ constituting a substantial cha n ge in circumstances a nd, ” so that the sentence reads:

Second, defendant argues that the evidence regarding the p rosecutor ’ s ex parte communi cation with Dr. Jones deprives his opinion of all w eight , thereby constituting a substantial chan ge in circumstanc e s and casting serious doubt on the court ’ s finding of malingering.

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

on pa ge 24) , whi ch begins

, “ Third, defendant asserts, ”
d elete the word “ new ” ; insert “ a ” between “ constituted ”
and “ su bstantial ” ; an d insert “ change in circumstances

or new ” betwe en “ substant ial ” and “ evidence, ” so that the sentence reads:

Third, defendant asse rts that the trial court applied the incorrect analysis in assessing whether his new
evidence constituted sub stantial evidence that cast s serious doubt on the prior competency finding.10 21. On page 25, s even lines down, in the sentence beginning

, “ By his argumen t, ” delete the first

appearance of the word “ new ” ; delete “ cas ts ” and insert in its place “ constitute s a substantial chang e 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 evalua te or weigh w hether evidence

— e ven if accepted a s true

— c onstitut es a subst antial change in circumstances or new evidence casting a serious doubt on the prior finding of competency; b ut accepting defendant ’ s suggestion would m ean that any change in circumstances and

any new evidence

— no m atter how flim sy o r how it fits into the overall tapestry of other e vidence

— would mandate a new competency hearing.

22. In the very next sentence (also on page 25), wh ich begins “ We reject this suggestion

, ” in the portion of the

sentence occurring after the s emicolon : delete

“ substanti al

, ” and replace it with “ evidence of a

‘ substantial ’ change in circumstances or of new ” ; and
insert between “ not on ” and “ e vidence ” “ evidence that shows any chang e in circumstances or new

. ” The
sentence from the semicolon onwar d should read :

R o das conditions a further competency hearing on a showing of evidence of a “ substantial ” change in11 circumstances or of new evidence th at casts a

“ serious doubt ” on the prior finding of compe tency, not on evidence that show s any change in

c ircumstances or n e w evidence that merely suggests any doubt.

23. In the very next sentence, which is the last sentence of that paragraph (al so on page 2 5), beginning

, “ The
trial court used

, ” insert between “ level of ” and “ casting

, ”

“ a substantial change in circumstances or new evidence

, ” so that the sent ence reads:

The trial court used the proper analysis in this case because it accepted Dr. Gilewski ’ s and Dr. Leitman ’ s evaluatio ns at fac e value, but determined tha t they
did not rise to the level of a subs tantial 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 unaff

ected by the new evaluations.

24. In the first part of the next senten ce (also on page
2 5) , which begins, “ Fourth ” : D elete “ there was ” and replace it with “ the new evaluatio ns constituted a ” ; insert between “ substantial ” and “ evidence

, ” “ change of
cir cumstances or new ” ; delete “ that the new ev aluations cast, ” and replace it with “ casting, ” s o tha t the f irst part
of t he 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 pri or find ing of competency was flawe d because . . .

25. On page 2 8, in t he third sentence benea th the heading “ 3. April 2021 ruling not to c onvene a second competency hearing

, ” replace “ ‘ substantial evidence ’ ”
with “ a subs tantial change in circumstances or new eviden ce , ” so tha t the s entence reads:

The trial court did not err in concluding that those
items of evidence did not constitute a sub st antial change in circumstance s or new evidence that “ casts serious doubt ” upon its prior finding of competency

.

26. On page 30, six lines down, i n sert an additional space before the sentence beg in ning “ What is more, ” so that the re are tw o sp aces between th a t se ntence and the one preceding it.

27. In the first full paragraph on page 30, in the first sentence, replace “ two ” with “ thre e , ” so that the

s e ntence reads:

Defendant offers three arguments in rejoinder.

28. At the end of the same paragraph mentioned abo ve ( the first full paragraph), insert the following sentence:13 Third, defendan t in his petition for rehearing argues
that the w eak probative val u e of the evidence goes to its weight and not its admissibility ; he is wrong, for i f
defendant were correct that the slight probative value of evidence could never pre clude its admission

, section 352 would be a nullity

.

* * *

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

—————————————————————————————— CHAVE Z
, Acting P. J. H OFFSTADT, J. BENKE , J. *

* R e tired Associate Justice of the Cour t of Appeal, Fou r th Appell at e Distric t, ass i gned by the Chief Justice p ursuant to article VI, section 6 of the California Constitution.Filed 11/2 3 / 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 specifi ed by r ule 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 Responden t,

v.

STANFORD JAMES STELLE
III
,

Defendant and Appellant. B322 4 99

(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 & Wh itney

, Lynn da A. M cGlinn, RJ Z ayed, and
Mi chael Rowe for Defendant and Appellant.2 Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, C harles C. Ragland, Assistant Attorney General, A. Natash a Cortina

, Annie Featherman
Fraser
, and Li ndsay Boyd, Dep uty Atto r ney s General, for Plaintiff and Respo ndent.

* * * * * * Stanford James Stelle III ( defendant ) stands convicted of
forcin g his much younger cousin to engage in sex acts from the
time she was fiv e y ears o ld until she was 12. O n app eal

, h e doe s

no t cont est his gu ilt. Instead, he argues that he was not

c ompetent to stand trial or to be sentenced . He also argues that the trial court erred in excluding evidence of hi s mental state to negate the sp eci f

ic int ent required for a su bset of the sex cr imes

. We conclud e that his argumen ts lack merit, and affirm his
convic tions and sentence. FACT S AND PROCE DURAL BACKGROUND
I. Facts A. Defendant and his cousin
Defendant was b orn in 1978. He completed 1 1th grade

. He has acces s to a su bstanti al sum of m o ney held in a fa mily tru s t. In 2005, defendant injured the frontal lobes of his brain in a

moto rcycle accident. S. Do e wa s born in 19 98. She is defendant ’ s cousin

. B. Defendant sexually molests his co usin for nearly
a decad e, de s

pite knowing it wa s “ wrong ” to do s o From 2003 (w hen S. Doe was f ive years old) until 201 1 (when she was 1 3 years old) , defendant s exually molested S. Doe

every weekend. Initially, defendant would massag e S. Doe ’ s chest and stick his fing er in her vagina during the shower s he insisted the y take t ogether. D efendant t hen progressed to3

making S . Doe lay on t he floor while naked , where he would rub his pen is against her v agina until he e j aculated all over her
chest. Defendant eventually started to ora ll y co p ulate S. Doe and

to demand that S. Doe orally co pulate him , even though she
would c ho ke and gag as she d id so

. To e nsure that S. Doe would not tell anyone else about
what he calle d thei r “ little secret

, ” defendant would buy S. Do e trinkets, candy

, and it e m s of clothing.
The moles t ation ended in 2013

. While at th e ir grand fa ther ’ s 9 1st birthday party that year , defendant took S.
Doe in to a bedroom and pulle d off her pants. S. Doe urged him to stop, b ut he ignor ed he r pleas. It was not until she forcef ully pushed him of

f her a nd sh e got away from him that the years of nonstop molestation

— except for the b rief period when he was in the hospital after hi s 2005 motorcycle accident

— ceased

. To family coun se lors

, to police

, and t o S. Doe, d efendant
admitted that what he had done was “ wrong , ” that it was “ over the line

, ” an d that he would “ take it back ” i f he could

. When S.
Do e called defendant in March 2015 with law enforcement

cov ertly listening in, defendan t agreed with S. Doe that he had

“ sexually touch[ ed] ” S . Doe an d th at it was “ w rong ” to do so , but

re fuse d to say anything more b ecause he di d no t “ want an ybody
else to hear wha t [he was] saying

. ”
II

. P roced ural Background
A. I nitial complaint
In M a rch 201 5 , the People filed a criminal com pl aint again st defendant alleg ing 14 felonies a rising out of his
molestat ion of S. Doe

. In a 2015 interview by a defense investigator, d efendant
stated that he k new he was charge d with having sex with a4

minor

. He re ported that he was i nn ocen t because S. Doe ’s
mother ( defendant ’ s aunt )

— who had a “drug abus e probl em ”

—

“ w as trying to extort money from [hi m] and his family ” by making up these allegations and then d emanding money in exchange for keeping quiet about them.
B

. Adjudicat ion of competen cy to stand trial
In May 2015, and afte r defendant ’ s a tt orney did the same, the trial court “ d e clar e[ d a ] doubt as to defendant ’ s mental competen ce ” to stand trial and sus pended the criminal

pr ocee d ing s. The tr i al co urt appointed t wo expert s t o evaluate
defendant

— Dr. Michae l Leitma n (Dr. Lei tman) and Dr. Joy Smith Clark ( Dr. Clark). Dr . L eitman wrote a four

- page report based solely on an intervie w with defendant ; Dr. L e itman reviewed no other d ocume nta tion ab o ut de fendant and di d not
adminis ter any tests

. Because defen dant gave “ some bizarr e

r esponses ” duri n g that interview

— including that he “ lived in bushes, ” “ loves to ride horses, ” and has problems rem embering thing s

— Dr. L eitman o pined that defendant “ would not b e able to cooperate with his attorney ” in his defense. Dr. Clark also
intervi ewed def

endant

, a nd observed that he had “ poor eye contact, ” a “ flat ” “ a ffect, ” and what appeared to be “ impaired ”

“ memory func tion ” du r ing th at interv iew. Because defendant
also den ied knowing anything about the legal pro cess, Dr. Clark opin ed that a “ qu estion rema ins wh ether ther e is some cognitive impairm ent or deficit, ” but that “ malingering ”

— that is, the possibi l ity th at defendant was pretending to have mental competency issues

— “ cannot be complet ely r ule d ou t. ”
In N ov ember 201 5, t he parties stipula ted to a finding that
defendant was n ot competent to stand trial based on Dr.5

Leitman ’ s an d Dr. Clark ’ s reports. Based on that s tipul ation, t he

court found defendant “ mentally incompet ent to stand trial ” and

s usp ended the cr iminal procee dings

. From Nov ember 2015 until November 20 1 9, defendant was housed in two mental he alth faci lities. Those facilities provided the following progress reports:

● March 2016 report

. In a report dated March 2016,
th e fir st facility reported that defendant was “ not yet competent to stand trial. ” The report indicated that defendan t likely suffer s from “ cogni tive def

icits ” such a s having “ poor conc e ntration ” and bei n g “ forgetful, ” b ut that he was also malin gerin g insofar as he

was “ exaggerating secondary symptoms [ of those deficits] for [his personal] gain. ” Specifically, the report d ocum ented that
defendant ’ s results on th e Tes t of Memory Mali nger in g (TOMM)

“ indica te [d] [defendant ] was very likely ex aggerati ng me mory impa irment at the time of testing. ” The report further cited defendan t ’ s inability to remember hi s ow n age a s providing
additional eviden ce of his e xaggeration of his memory defici ts.

● August 2016 report. In a report dated August 2016

, the second facility reported that defenda nt was not yet competent

t o stand trial because he was “ un able t o demonstrate adequat e knowled ge ” reg arding court proce ed ings. Like the prior report, this repor t dia gnose d defendant as having a “ [m] ajor [n] eu rocognitive [d] isorder due to [the] [ t] ra umatic [b] rai n [i] njury ” f

rom his 20 05 accident, but that defend ant was

m alingerin g by “ exaggerat [ ing ] h is deficits

. ” Speci fically, the report noted that defendant “ h a s great difficul ty ex press ing himself to his tre a tment providers but he speaks rapidly and confidently ” to his fell ow inmates and to perso ns on the phone.6 ● March 201 7 report. In a rep ort dated March 2017, the second fa cility re layed that de fenda nt was still not c ompetent to stand trial due to his lack of unders tanding of the nature of the charges against him. Despite staff working with d efendant with
flas hcard s to teach him court pro cedure, defendant continue d to

express no kn owledge. The report noted that defendant ’ s “ brain injury h as left him wi th a somewhat odd presentation at times

, wh ich in a p sychiatri c se tting, may be mistaken for mental
illness

. ” In September 2017, the second facilit y cer tified to the trial

court that defendant was competent to stand tria l

, an d submitted

a n assessment let ter in sup port of its certification

. In the letter, the fac ility di agno sed defendant with ( 1) a “ [m] ajor [n] eu rocog nitive [d] isorder, [d] ue to a [t] raumatic [b] rain [i] njury, ” resulting in “ [m] il d ” “ behavioral dis turbances

, ” and (2)

“ ma lingering ” becau se he was “ intent ionally ” “ exaggerating ” the

“ genuine cognitive impairments ” caused by his n eurocognitive
disord er. The letter set forth thre e r ea sons for its finding of malingering : (1) defendant was exaggerat ing his lack of
knowle dge about legal processes because his r eported mastery of

court

- related information had “ actually worsened

, ” whi ch “ does

not make sens e from a neurocognitive stand p oint

, ” ( 2) defendan t

was “ feigning some cognitive and memory probl ems ” b ecause his lack of memory was “ sel ective

, ” insofar as he would accurately
remember certain “ names and events ” and “ pro vide details

, ” b ut

w ould purport to not re member any thing about the charge s against him o r the legal proce ss , “ despite this being th e focu s of

t reatm ent for the past 14 mon t hs

, ” and ( 3) defendant would act for getful and nonresponsive when bei ng ev aluated, but was7

“ observed speak ing rapidly a nd confidently whil e using the telephone and while spe aking with his peers

. ” After receiving th e certi fication

, the trial court appointed
Dr. William Jones (Dr. Jones) to evaluate defenda nt ’ s competency to stand trial. Dr. Jon es reviewed a January 2019 evaluation prepared by an expert retain ed b y defendant named Dr. Michael
Gi lew sk i ( Dr . G i lew ski) . In that report, Gi le wski opined that defendant had a (1) “ severe attent io n, m emory, and executi ve functioning impairment, ” and (2) a “ prior diagnosis . . . f o r [ a ] utism [ s ] pectrum [ d ] isorder. ” Dr. Jones agreed wi th Dr

. Gilew ski that defendant had a genuine neurocognitive disorder

ste mming from the 2005 br ain i njury, but found that defendant

was malinge ring by exaggerating the deficits from that disorder.
In support of hi s opin ion that defendant was malingering, Dr.
J ones cited (1 ) defendant ’ s result on a separate TOMM test Dr. Jones administered in April 2019 , which ind icate d a “ high likelihood of mal ingering

, ” and (2) defendant ’ s disor iented affe ct when bei ng interviewed by expe rts, as con tra st ed with defendant ’ s affect on 13 recorded jail calls, where defendan t

“ app eared to be alert and res ponsiv e ” and engage d in a “ high er leve l of discourse

. ” On May 24, 2019, and b ased upon the a bove

- stated
information

, the trial co urt d eclared defendant to be comp etent to stand tria l and reinstated the criminal proceedings.
C. Resumption of crim ina l proceedings In November 2019, the trial court held the preliminary
hearin g o n the charges in the pending criminal comp la int a nd held defendant to answer for most of them. The People filed a 13

- count inform ation al legin g six count s of eng aging in lewd and8

l a s civious conduct with a min or ( Pen. Code, § 288, s ubd. (b)( 1)), 1 six count s of agg ravated sexual a ssault (§ 269, sub d. (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 compe tency A few weeks be fo re tri al was set to begin in late October 2020, defendan t ’ s attorney asked th e trial court to declare a doubt about defendant ’ s compe tency and to suspend the criminal

pr oceed ing s. Because the request was not accompanied by any eviden tiary support, the tri al cou rt denied the request without prejudice.
On October 19 , 2020 , defendant mov ed the trial court to reconsider its ruling

. In sup po rt of the motion, defen dant supplied eviden tiary support

— namely, update d evaluatio ns from
Dr. Gilew ski an d Dr. Leitman. The trial court ruled that a
motion for recon sideration was proc edurally imp roper , but offered

to construe t he defense motion as one to s uspen d the criminal proceedings due to defen dant ’ s incomp etence

. T he court then held a three

- day evidentiary hearing on th e question of whether there had be en a “ substantial change of
ci rcumstances or new evidence . . . casting serious doub t on the validity of the prior finding of the defendant ’ s com petence. ” If so, the court would declare a doubt about defendant ’ s com pe tency and suspend the proceed ings; if not, the ma tter woul d proceed to
trial. The followi ng evidence was present ed at the hearing 2 :

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

2 D efendant ’s at torney agreed th at defendant would have the right to a jury trial at a se co nd competency hearing should o ne be9 ● Testimony of Dr. Gilew ski . Dr. Gilewski testified that ( 1) he had di agno sed defendan t with two new m ental
conditions

— namely, ( a) a u tism spectrum disorder and (b) schizotyp al per sonality disorder

, wh ich renders defendant “ out of

t ouch with reality

, ” ( 2) that the results of the TOMM test (which
indicated that d efendant was malingering ) did not account for
these two new mental conditions

, and (3) a malingering test Dr. Gilewski administered to def endan t (called the M

- FAST test) did not show any malingering

. Dr. Gilewski also opined that defendant ’ s “ mental status has decreased s ignificantly from the
2016 assessme nt. ” Dr. G ilewski acknowle dged that the severity
of the charg es agains t d efendant and their possible sentences gave defendant a motive to malinger , but opined that defendant ’ s lack of knowl edge abou t trial procedure and his inability to remember things rendered him no t competent to stand trial.

● T es t imo ny of Dr. Leitman . Dr. Leitman testifi ed that the au tism and schizotypal personal ity di sorder ha d

“ co ntributed ” to the earlier finding s of malingering, and undercut the validity of those findings. Dr. Leitman administered defendant a m a l i ngering test ( called the SI MS test). Although
the resu lts of t hat test indicated that defendant was malingering if th e test results were “ strict [ly] anal y[zed], ” Dr. Le itman felt it was appropriate to ignore those results beca use defendant

“ do esn ’ t alw ays see the worl d the same way you and I would. ”

● Testimony of Dr. Jones . Dr. Jones did not re exam ine defendant, bu t reaffirmed th at the prior diagnosis of malingering was still valid because (1) Dr. Gilewki ’ s di agnosis of autism and

necessary , but that defendant had no right to a jury trial at this threshold evidentiary hearing to deter mine the necessity f or such a second he aring

.10

sc hiz otypal personality disorder did not undermin e the TOMM

test res u lts 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 di vorce d
fr om re ality, as persons with schi zotypal personality disorder typical l y are) , ( 2) Dr. Gil ewski ’ s diagnosis, as well as defendant ’ s current conduct in rocking b ack and forth and appearing
distracted and unfoc used on reality

, was impos sibl e to reconcile
with defendant ’ s ability to have “ linear ” conversatio n s about t he real wo r ld, as reflect ed in 13 recorded ja ilhouse calls in 2018 and
2019 with his family and friends

, (3) the M

- FAST test Dr.
Gilewski administer ed w as un helpf u l because it was designed to

test malingering for “ sympto ms of severe mental i llness ” rather
than malin g ering with re s pect to one ’ s memory, which was the chief de ficit stemming from defendant ’ s 2005 neu rocognitive inju ry , (4) defe nd ant ’ s alleged ly faulty memory was “ se lective ” insofar as he could remember some t hings but not anything about criminal procedur e , ( 5 ) numerous o ther doctors at the second mental health facility

— including Dom in ique K inney, Joseph L i u , Debra Richa rds a nd Melissa Jajko

— had all independently
conclu ded that defendant was malingering by ex aggerating his faulty mem ory , and ( 6 ) defendant ’ s neurocognitive disorder was

not progressive

. Dr. Jones fran k ly admit t ed that all of this

ev idence indicated a “ possibil ity” and “ likel [i hood] ” of malingering

, but that he co uld n ot make any absolute, “ fo r sure ”
di agnosis. Dr. Jones acknowledged that, p r ior to completing his first report in 2019

, the pr o sec ut or assigned to th e case at that time had emai led him to advise him that defendant ’ s “ time ” at the second facility “ ha [d] exp ired, ” such that i f defendant were

“ found incompetent [back in 2019], [defe n dant could] not continue11

treatment ” and co uld “ ess e nti ally no longer be p rosecuted 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 defend a nt ’ s mental health

.

● Testim o ny of co rrectional offi cers. Two correctional off icers who regular ly in ter act ed with defendant testified that defendant did not display any odd behavi ors while in custody ( such as rocking back and forth or giving a “ 1000

- mi l e stare ” ),
that defend ant inte r ac ted normally with oth er inmates, a nd that defend ant remem bered his name and other details from
conversation to conversatio n.

● Jailhouse calls

. Thirteen jailhouse calls b etween defendant and others were introduced. As D r. G ilewski agre ed, on those calls, defendant ’ s conversation and thought processes

were not “ confused ” or “ disorganized

, ” and his “ affect ” was not

“ flat ” ; t o th e contrary , defendant on those c alls had “ fo cused ” and task

- or ien ted conversations with his fam i ly and/or friends.
At the conclusion of the evidentiary hearing, the tria l c ourt

gave a detail ed oral ruling denying defendant ’ s motion

. As a
threshold matter , the court ruled that defendant had not presented any “ new evidence ” because Dr. Gilew sk i ’ s d i a gnosis of
autism “ could have been raised at the fir s t he aring ” (given that it appeared in Gil ew sk i ’ s J a nuary 2019 report ). Mo re to the point, the court ruled that neither Dr. Gilewsk i ’ s nor D r. Leitman ’ s evaluations cast ed “ serious doubt ” on the court ’ s prior finding that defendant was competent t o stand trial

. As the co urt expla ined, the prior finding was based upon the fact that defenda nt had been malingering by exaggerating any genu ine impa irments he had. Although Dr. Gil ewsk i and Dr. L e itman

now op i ned that the prior finding of malinger ing was use less12

b ec ause the TOMM te st that supp o rted that finding was invalid due to the additional auti sm and personality diso rder diagnoses,
the court determined that their new opinions did not cast any serious doub t upon the prior finding of mal ingering in light of the

st ill

- und ispute d f

acts that (1) defen dant ’ s faulty memory was

“ selective, ” because defe ndant failed to retain information about the legal system ; and ( 2) defendant was engag ing in regular, reality

- bas e d and l in ear conversations w h e nev er he w as not being ev alu ated, as the correctional officers ’ testimony and jail
calls indicate d

. The court was “ very concerned ” by the prosecutor ’ s e x parte communication with Dr. Jones

, but ruled
that the soli tary commun i cation di d not under mi ne Dr. Jones ’ s
op inio n given Dr. Jones ’ s testimony that it had not affect ed his analy si s and given that numerous other doc tors came to the very

same conclusion about defendant ’ s malingering

. Summing up,
the court explained that the n e w evaluations d id no t “ i ndi cate that [ defendant] i s not competent ” and d id not indicate t hat 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 t o [ assist h i s c ouns el]

, the issue is whether he ’ s willing

to. ”
E. Trial
D ef endant ’ s trial be gan in the fall of 2020. Defendant sough t to call Dr. Gilewsk i as a defense witness to testify that defendant suffered from two “ mental di sease [ s ] o r defec ts ”

— name ly, auti s m and schizotypal personality disorder

— that precluded him from for mi ng the specific intent necessary to be convicted of any of the lewd and lasc ivious conduct counts. The tri al court excluded this evidence under Evi dence C ode

sect ion 352, ru ling that Dr. G i lew s k i ’ s opinion was n ot13

particularly probative on the question of defendant ’ s mental sta te at the time of the crime s ( that is, between 2003 and 2012 ) because
Dr. Gi lewsk i ’ s evaluations all occurred i n or afte r 201 9 and
b ecause t here was no con tempo rane o us evidence ( from 2003

t hrough 2012 ) indicating de fe ndant suffered from either condition

. As a result, the court reasoned, Dr. Gilew s k i ’ s backwards

- in

- time extrapolation that defendant suffered from
these condition s 10 to 15 year s earlier w as sp eculative

, such that
the probat ive value of Dr. Gilew s ki ’ s te stimo ny was substantially

ou tweighed by the dange r that it might confus e the jury and result in unfair prejudice

. Defendant took the stand

. N o t wi thstand ing his prio r admi ssions to sexually touching S. Do e , defendant testified t ha t the only t ime he touched S

. Doe was during “ tickle fights ” and that S. Doe ’ s allegations were the product o f S. D o e ’ s mother trying to extort $ 30,000 from defe ndant to pa y off a dru g debt the

m other owed. De fendant testified th a t his prior admissions of
i mp ropriety were l ies aimed at pl acating S

. Doe ’ s mother

. Because defendant, while on the sta nd, spoke halt ingly

, rock ed back and forth, a nd s eemed confused

, the trial court permitted defendant to call Dr

. Gilewski to testify t h at defendant suffe red from a major ne urocog nitive disorder and from autism spectrum disorder, both of which could explain his

unconvent ional behav ior while t estif ying. The trial court then

gave a n instructi on limit ing the jury ’ s use of Dr. Gilewski ’ s tes t imony

, informing the j ury that persons with “ a deve lopmental disability, or a cognitive, menta l, or communicat ion impairment ”

wer e not “ a ny mor e or less credible than any ot her witness

. ” In rebuttal, the People called t wo prison officials who testi fie d t h at defendant act ed normally outside of t he courtroom.14 The jury convicted de fend ant of al l charges

. F. Defenda nt ’

s e ve

- of

- sentencing chall enge to

co mpetency Right befor e sentencing was to occur in F ebruar y 2021
, defendant ’ s attorney again mov ed the cou r t to declare a doubt abou t defendant ’ s com petency, to sus pe nd the pr oceedings, an d to

co nduct a second competency hea ri ng. This motion was based upon a Janu ary 2021 evaluation performed by Dr. Gilewsk i , wh o opined that (1) add itional testing of defendant showed that defendant wa s not malingering

, chiefly because defendant ’ s 2005 traumatic brain injury wa s “ exaggerat [ ing ] the impa irment
associated with [defendant ’ s ] au tism spectrum and schizotypal [per sonality] disorders

, ” and (2) defendant ’ s condition was once again demonstrated b y defen da nt ’s confusion during his

pre sentencing intervi ew with the probation officer , where
defe ndant purported not to u nderstand Miranda warnings

. The

court conven ed a n evidentiary hear ing in April 2021

. Defendant
submitted on Dr. Gil ew sk i ’s u pdated evaluation

. The People offered tr anscrip ts from several more calls defendant made from jail in February 2021 ; on those calls, de fe ndant “ r emembered
thin gs , ” “ made remarks that wer e in context consistent with the conversatio n , ” and w as a ble to “ track ” the conversation al t hrea d of the other speaker

. The probation officer testified. In an oral ruling, t he tr ial cour t found that this additional evidence did not cast any serious doubt on the prior fin ding that defe ndant was competent (

b ecause he was continuing to malinger).
A f ter als o de nying defendant ’ s pending motion for a new
trial , the trial court sentenced defendant to prison for a term of 105 year s to l ife plus 38 years.
G. Appeal15 Defend a nt filed this timely appeal.

DISCUS S ION In this appeal, defendant argues th at the j udgm e nt against
him must be vacated, n ot due to insufficient evide nce o f his guilt

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

senten ced , a nd ( 2) the tr ial court wrongly excl uded Dr. G il e w s k i ’ s proffered tr ial testimony that d ef endant ’ s a u tism and neurocognitive injur i es pr eclud ed him from form ing the specific
intent to commit a sub set of the charge d crimes

. Regarding the first issue, w e rev iew the trial court ’ s competency ru lings with

“ g reat deference ” (

Peop le v. Mai (2013) 5 7 C a l. 4th 98 6 , 1033), an d

more to th e point

, we “ revie w

. . . a trial court ’ s ruling concerning whether another competency hearing must be held

. . . . for
substantial evi dence. ” ( P eople v. Huggins (2006 ) 38 C a l. 4th 175,
22 0 ( Huggi ns ) .) Regarding the secon d issue, w e review the tria l

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

. Flores (202 0) 9 Cal. 5th 371, 409 .)
I. Defendant ’ s Competency t o Stan d T rial Defendan t challenge s all three of the tri a l court ’ s compete ncy rulings

— na m ely, ( 1) t he court ’ s May 2019 ruli ng finding defendant had regained his comp etency to stand trial , (2)
the court ’ s October 2020 ruli ng finding that defendant remained competent to stand trial, and (3) the court ’ s April 2021 ruli ng finding th at defendant r emained c om petent to be sentenced.
A. The law of competency to stan d trial, g enerally
T he constitutional guarantee of due pro cess as wel l as
California statutory law provide that criminal defendant s may be

tr ied and sentence d only if t hey are mentally comp etent at th e time o f trial and sentencing. ( People v. Rodas (2018) 6 C a l. 5t h 219, 230 (

Rodas ); People v

. Medina ( 1990) 51 C a l. 3d 870, 881

- 88216

( M e dina ) .) A conviction or sentenc e imposed upon a person at a time when they ar e not mentall y com peten t must be vac ated. ( P e ople v

. Bu enrostro (2018) 6 Cal. 5th 367, 386 ( B ue n rostro ).)
Th e subs tantive standard for a ssessing competency is a fu nction of federal constitutional law and Califo rnia statute. Together, they provide that a c r iminal defendant is mentally

co mpetent t o stand tr i a l and be sentenced if he has (1)

‘ “ ‘ “ suffici ent present ability to cons ult with his lawyer with a reasonable degree of rational understanding

, ” ’ ” ’ and (2) ‘ “ ‘ “ a rational as well as factual understanding o f the proce edings against him

. ” ’ ” ’ (

Bu e nr os tro , s u

p ra , 6 C a l. 5th at p. 38 6 , quoting Cooper v. Okla homa (1996) 517 U.S. 348, 354 ; Dusk y v. United S t ates (1960) 362 U.S. 402, 402; § 1367, subd. (a).) The proce dur es for as sessing competency are defined by C a lifornia sta tutory and deci sio nal law.

1

. I nitial a ssessment of competency
If , at any time prior to judgment where fel ony off enses a re involved , a trial court has a “ bona fide doub t ” as to whether a crimina l defendant is mentally competent, the court mu s t (1)

suspen d the criminal pro ceedings, a nd (2) co n v ene a hearing to
determine the defendant ’ s competence. ( § 1368, sub ds. (a), (b) & (c) ; People v. Mendoza (2016) 62 C a l. 4th 856, 884 ( Mend oza ) .) A
trial co urt should have a “ bona fide doubt ” about a def e ndant ’ s
comp eten cy whene ver “ s ubstantia l evi dence o f [ defendant ’ s ] incompetence is introduced. ” ( Medina

, supra , 51 Cal.3d at p. 882; Rodas

, supra , 6 C a l. 5th at p p. 230

- 231 ; Mendoza , at p. 884.) The

court ’ s r o le in assessing whether there is a “ doubt ” is narrow

—

n amely, “ to decide whethe r the e vi dence of i n competence is substantial ” ; the court is “ not to resolve ” “ conflicting evidence

re garding competence. ” ( Rodas

, at p. 234 , italics added.)17 At the hearing o n a defendant ’ s mental competence that is

conve n ed once a tria l court de clares a doubt

, t he de fend a n t is presumed to be competen t and thus bears the burden of prov ing his lack of com pet en ce by a preponderance of the evidence. ( § 1369, subd. (f); Buen rostr o , su pra , 6 C a l. 5th at p. 38 7 .) The trial

cour t appoints expe rts to ass ess the defenda nt ’ s co mpet e n cy

. ( §

1 369 , subd. (a)(1).) If the t rier of fact determines that the defen dant is mentally competent to stand trial or be sentenced, the court reinstates the crim inal pro ceedings . (§ 1370, subd. ( a)(1 ) (A).) If
the t ri er of fact de termines that t he de f e nda nt is n ot mentally competent to stand trial or be senten ced , then t he court must

con tinue to suspend the criminal proceedings and take action to attempt to restore the d efendant ’ s mental compet ence. ( § 1370,
subd s . ( a)( 1)(B) & (b ) .) If the doctors t r e ati ng the defendant
indi cate that the defend ant ’ s competency has been restored, the court must convene a restoration hearing to assess whether the defendant has regained hi s mental competence and whether the criminal proceedings may r es ume. (§ 1372.)

2

. Fu rt her a ssessment (s) of competency once a defendant has been restore d to competency

“ If, after a competency hearing, [a] defendant is found competent to stand trial, a t rial court may rely on that fin d ing ”

— and need not convene a fu rther competency h ea r i ng

— “ u nless the

court ‘ “ is pr esented [( 1)] with a substantial change o f
circumstances or with new evidence ” [ (2)] casting a serious doub t on the validity of that fin ding

. ’ ” ( Rodas

, supra , 6 C al. 5th at p.
23 1; People v. Jones (1991) 5 3 Cal .3d 1115, 115 3. ) A substan tial change of circumstance s or new evidence “ cast[s] a se r ious doubt ” on the validity of the prior finding only if it “ ma [ kes] it18

unreasonable [for the tr ial court] to continue to rely on the p r io r competence findin g

. ” ( Rodas , at p. 23 5. ) Co n s e quen tly, where
the new information “ substant ially duplicates e v idence already considered a t ” the prior hearing or any change entails “ minor change s in t he defendant ’ s m ental state, ” it does not cast a

se r ious dou b t on the prior finding an d does not warr a n t

co nvening a n ew competency hearing. ( Id. at pp. 2 34

- 2 35 ; c f

. i d

. at p. 223 [ serious doubt cast when re storation of defendant ’ s competency turns on his ingestion of anti

- psychotic medication

, and defend a nt st ops taking that medi cation ]; In re Sims (2 02 1 ) 67 C a l. App. 5th 762, 775 [same].)
B. Analysis
1

. May 2019 determination that defendant had regain ed his mental competency Defendant asserts that the trial cour t ’ s May 2019
determination that he had be e n restored to mental competency is incorrect. As n o ted above, our task is limited to determining
whether t he court ’ s determination of competency is supported by substantial evidence. I t is. Substant ial evidence supports the trial court ’s finding th at d e fendant, altho ugh s uffer ing fro m a neu ro cogni ti ve d i sorder ari sing out of his 2005 tr aumatic brain injury

, was nevertheless compet ent to stand trial because defendant was malingering

— that is, he was exagger ating the deficits from that disorder to
make it s eem as if he was incapable o f understandin g the

p r oc eedings and assisting his attorne y. The court ’s fi n ding was supported by four clusters of evidence. First, defendant ’s performance on two separately administ ered TOMM tests
indicated that there was a “ h igh likeli hood” that defenda nt was

exagger at ing h i s lack of me mory ( and thereby malingering).19

Second, defendant ’s faulty memory was “ sel ective ” ins of ar as he could re tain knowledge on many t opics but never any knowledge

on legal procedures, despite being repeatedly r e educ a t ed on those procedures. Third, defendant ’ s pur ported 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 deterio rating co ndition (l e t alone s uc h a targeted deterior ation)

. Fourth, and most significantly, defendant appeared to have an “ on/off switch ” when it came to his purported mental competency issues : Defendant wo uld demonstrate a faulty memory

, a flat affect, a d i s or iented and c o n fus ed
d emeanor , an d hesitati on in ans w e ring questions when questioned by evaluators , but would be “ alert

, ” properly oriented
and “ responsi v e , ” and would also display a “ high level of [con versational] dis course ” when interacting with anyon e el se , includin g during the 2 015 ph on e call w ith S. Do e , during his interview with the defense in vesti g ator and the police, during his regular interactions with other mental he alth pa tients, and during th e 13 jail calls he made in 2018 and 2019

. A s our Su pre me Court has n oted, a defendant ’ s own words can
constitute ‘ “ powerfully p ersuasive ” ’ evidence of his competency ( Huggins
, supra , 38 C al. 4th at p. 220) ; here, t hey most c ertainly
did. Defendant resists this conclusion w i t h what boil down to

two ar gume n ts. F irst, defe n d ant c o n te nd s the trial court gave to o much evidentiary credence to the “ stale, thin, and q uestionable [evaluative] reports ” from the first facility. In effect, defendant is asking us to weigh t h e e vidence differently than the tria l c ourt. This is b e yo n d our p ur view w here, as her e, we are re viewing the20

trial court ’ s finding of competency for substantial evidence. ( P e ople v. Houston (2012) 54 C a l

. 4th 1186, 1215 ( Houston ) [ “ ‘ We do not reweigh evi d e nc e or re evaluate a wit ness ’ s credi bil ity. ’ ” ].) Secon d

, d e f

enda nt make s the following mu lti step argument: Dr. Jone s ’ s opinion (including his administration of one of the two TOMM tests) was w holly compro mised by the prosecutor ’ s ex parte c ont act with D r

. Jones prior to the is suance of his repor t ; h is opin ion i s e nti tled to no evidenti ar y weight whatsoever; and there is no other evidence supp orting t he trial

court ’ s finding that defendant was malingering. Although we agre e with defend a nt ’ s position that t he prosecutor ’ s conduct in sending a c ourt

- appointed exp e rt witness an ex parte communication aimed at influencing his opinion is egregious, we disagree with defendant ’ s position that the

prose cutor ’ s conduct inv ali dates the tri a l court ’ s finding that
def endant ’ s competen ce had been restored . Our disagreement

r es ts on several reasons.
T o begin, our task is to evaluate the evidence be fore th e
tr ial court at the ti me of it s May 2019 ruling

, and the fact of the ex parte co mm unicat ion did not come to light u ntil 2020. ( P e ople
v. Panah (2005) 35 Cal. 4th 395, 4 34
, fn . 10.) There is also no

s upport for defendant ’ s accusatio n that the prose cutor ’ s fai lure to
disc lose th e ex parte communication at that time violated B r ady
v. Ma ry land (1963) 373 U.S. 8 3 or the C riminal Discovery Ac t (§
1054 et seq

. ), as both of t he se m ec hanism s are tied to the
d i scovery of evidence prior to the adjudication of guilt rath er than competenc e; f

urther, any discovery error can be harmless ( Buenrostro
, supra , 6 C a l

. 5th at p. 399), and as expla ined below

,
was harmles s here. Relatedly, we rej e ct defendan t ’ s suggestion
that the failure to disclose the e x parte communicat ion pre judiced21

his right to cho ose whether to have a jury decide whether his competency had been restore d because a defe ndant has no right

to a jury determination regarding th e r es toration of competency. ( People v. Murrell (1987) 193 C a l. App.3d 822, 826

- 827 ; § 1372,
subd. (c) [ deter m ination of “ whether or not the defendant . . .
recovered competence ” is to be “ found by the court ” ].) Moreover, Dr. J ones ’ s opinion is not automati c a ll y e ntitled

to no weight , parti c ul arly where, as here, Dr. Jones testified
und er oath that he was not influenced by the ex parte communicat io n. Defendant cites several out

- of

- ju risdiction cases

as well as California Rul es of Court, rule 5.235 , but no ne o f them

erects a “ one ex parte a nd done ” rule th at wou ld ap ply on the facts of t his case. (

Matt er of Kenneth C. v. Delond a R. (N.Y. Fam.
Ct . 2006) 10 Misc.3d 1 070(A), *44

- *4 5 [ ex parte communicat ion with expert witness does no t disqualify the expert]; G. K

. L as Vegas L td. Pa rtnershi p v. Simon Prop. G roup (D. N e v. 2009) 671
F. Supp. 2d 1203, 1215 [ party ’ s ex part e communicat ion with the

neutr al third

- party expert tha t party requested forfeits the party ’ s right to use that expert ’ s opinion]; United States v . Ki g h t (N.D. Ga. , July 12, 2 0 17 , No. 1:16

- cr

- 99

- WSD ) 2017 U. S. Dist.
L exis 1 07922, *8

- * 12 [party should not hav e ex parte communication with court ’ s expert, but not specifying the remedy
for violation ]; Un ited States v. Pogany (3d Cir. 1972) 465 F.2d 72, 78 [ im p a rt ial experts sho u ld be used to evaluate sanity]; Cal.
Rules of Court , rule 5.23 5 ( c) [ prohibiting e x parte communication with court

- appoi n t e d evaluators in child custody proceedings, but not specify ing the rem edy for violati on].) Lastly, there is ample e v i d ence aside from Dr. Jones ’ s testimony t hat supports the trial court ’ s finding o f restoration of

compe tenc y , including defendant ’ s “ on/off sw itch

, ” the selec tivity22

of his memory loss, and the in exp licabl e deterioration of his

memory when it came to know l e dg e about court procedure s.

2

. October 202 0 ruling no t to conven e a second competency hearing
D efend ant next asserts that the trial co urt ’ s Octo ber 2020 deci sion not to suspend the criminal p ro ceedings in order to

convene a second competency hearing i s i n c orrect

. Applying the

st andards set forth above, the trial cour t erred only if there was (1) substan tial evidence of a substantial change of circumstance s or new evidence, and (2) substantial e vidence that the change or evidence cast s a serious doubt o n t h e validity of the tria l court ’ s prio r, May 2019 findi ng o f compe tency. ( Ro das

, supra , 6 Cal. 5th at p . 231.) Defendan t urges that he offered two new pie ces of
evidence

— namely, (1 ) the update d opinions of Dr. Gi lew sk i and Dr. Leitman that defendant a l s o s u ffered f rom au tism and
schizot ypal personal ity disord er that und ercut the efficacy of the TOMM test a s a measure of malingering as to his memory, and (2) the updated opinion of Dr. Gilew sk i t ha t defendant ’ s me mory

was deteriorati ng. Even if we ass u m e t h at the additional eval uations defendant proffered in O c tober 202 0 qualify as “ new evi dence, ”
the tria l court did not err in determining that this new evidence
did not constitute substantial e vi dence that cast serious doubt on the trial court ’ s prior f i n di n g that defendant was c ompet ent to stand trial. As no ted above, the trial court ’ s pri or finding of

co mpetency was gr ounded in its subsidiary finding that defendant was malingering by ex aggera ti ng any deficits he may have had from th e neurocognitive d i s o rd e r caused by his

tra uma tic brain injury. The new evid ence defend ant proffered

was l ar gely aimed at un dermining that sub sidiary finding of23

malingerin g . But that new evidence d id not cast seriou s doubt on that finding because the two new evaluations i n n o w ay undercut ( 1) the overwh elming evidence that defendant was regular ly togg l ing between a ppearing “ out of it ” to evaluators and judges

, and being perf

ectly c oherent

, capable , and grounded in re al ity when in teracting with everyone else, and (2) the ev i d e nc e that
defendant was being selective with his faulty memor y, choosing to pretend he could remember nothing about court processes.
And because the evidence of defendant ’ s malingeri ng remain ed

un as sail ed , the ad ditional evidence that his fei gned memory l o ss was getting worse cast no doubt on the prior finding of

c o mpetency. Defendant resist s th is conclusion wi th a ple thora of arguments, which we have organized into five different clusters. First

, defendant argues that t he new di agnos e s of autism
and s c h i zo t ypal personality disorder undermine the results of the TO MM test ; th at the TOMM test was the backbone of the trial

court ’ s finding that defendant was malingering ; and that malingering was the s ol e reason the trial court c oncluded that defendant was c o m p et e nt to stand trial not wit hs tanding his
outward behavior

. Thus, defen dant concludes, the n ew di agnoses

cas t doubt on the trial court ’ s prior findi ng of competency. This argument ignores that th e TOMM test was onl y part of the
evidence of malingering, a n d t hat the more persuasive ev idence of malinger ing

— namely, d ef endant ’ s practice of appearing impaired during evaluations and interactions with court an d judicial officials but acting normal around everyone else

— was in

no way called into question by the d i a g nos e s of autism and

sc hizo typal personality disorder , whi ch accordin g to Dr. Gilew s k i

, ha d existed since defendant ’ s chi ld hood and yet in no way24

affected his ability to be fully coherent and rati onal when defendant chose to b e

. Second, defend ant argu e s t hat the new evidence regar ding the pr osecutor ’ s ex parte com municati on with Dr. Jones dep rives his opinio n of a ll weight, thereby casting serious doubt on t he

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. Jone s ’ s opinion means that there was no prior finding that he had been restored to competency, such that we should treat the O ctober 2020 hearing as a hearing to dete rmine whether his co m petency had been restored in the first pl ace , rather than a hea ring as to whether new evidence cast ed a serious doubt on a prior finding of competence. B ecause we have found, as noted above, tha t the ex parte communication does not invalidate the tria l c ourt ’ s
resto ration of com petency finding, that finding would also apply if we applied the restor ation

- of

- competency s tandard at the October 2020 hearing.
T h i rd, defendant asserts that the trial c ourt applied the
in correct ana lysis in assessing wh ether h is new ev idence

c onstituted substantial evidence that cast serious doubt on the prior compet ency fi nding. Citing People v. K aplan (20 07) 149 Cal.App. 4th 3 7 2 (

K aplan ), defendant argues t hat a trial court

may decide on ly whether there is “ substantial evide n ce ”

warra nt ing a further hearing and may not “ weigh ” the evidence in making that determination. ( I d. at pp. 384

- 385.) Defendant
misreads Kaplan

. Kaplan m e r e l y held that the “ substanti al evidence ” standard “ necessar y to trigge r an initial com peten cy hea r in g is th e same standard required to trigger sub sequent competency hearings. ” ( Id. at p. 384.) As our Supreme Court25

e xplained in Rodas

, a trial court dete r m i n ing whether to convene

an in itial comp etency hearing may not weigh t he evidence once it
h as det e rm ined th at the re is substantial evidence of a lack of competence; but the court is still permitted t o evaluate th e evidence prese nted to determine whether i t r ises to the level of
subst antial evide nce in the fi rst place . ( Ro d a s , supra , 6 C a l. 5th

at pp. 2 30

- 2 31.) By hi s a rgument
, defe ndant seems to suggest that a trial court may not evaluat e or weigh whether new
eviden ce

— even if accepted as true

— casts a se rious doubt on the

p r i o r finding of compete ncy ; b ut accepting defendant ’ s suggestion would mean that an

y new evidenc e

— no matt er how flimsy or
how it fits into the overall tap estry of other evidence

— would mandate a new competency hearing . W e reject th is suggestion
because it w o u ld give no weight to the court ’ s prior f inding of competency, a result that f l at ly contradicts our Supreme Court ’ s instruction t o the contrary ; Rodas conditions a further competency hearing on a showing of substantial evidence that

casts a “ serious doubt ” on the p rior finding of c ompetency, not on evidence that merely suggests any d ou bt. The tria l court used the prop er analysis in t his c ase because it accepted Dr. Gilew s k i ’ s and Dr. Leitman ’ s ev a l uations at face valu e, but determined that they did not r ise to th e level of cas t ing serious doubt on the

c ourt ’ s prior finding of mal ing e ri ng in light o f the over whelming

ot her evidence of malingering th at was unaff ected by the new
evaluat ions. Fourth, d efendant urges that the trial court ’s analysis of
whether there was substantial evidence that the new evalu ations

cast seri ous doubt on t h e pr ior finding of competency was fl awed
b ecause the court (1) gave g reater weight to the reports from Dr.
Jones and f

rom the second menta l health facility , w hich was26

error because those reports wer e not as recent as the ones from
Dr. Gilew sk i and D r. L ei t ma n, (2) relied on the jail calls fr om 201 8 and 2019 , whic h w as err or because they were old , (3) gave in sufficient w e i ght to the effect o f the ex parte communication on
Dr. Jones ’ s opinion, which wa s error because the court should have viewed the ex parte co mm unication a s dispositive ly negat ing any weight of Dr. Jone s ’ s opinion, (4) gave too much weight to Dr. Jones ’ s t e s ti mony when he just read the tran scripts
of the 201 8 an d 2019 jailhouse calls , w hich was error because Dr

. Gilewsk i listened to less than ha lf of them ( six out of the 13 calls )

, and (5) gave too much weight to the custod i a l offic ials ’ reports of defenda nt ’ s ability to interact in a normal manner over the opinio ns o f defendant ’s paid e xperts

. In all these arguments

, defendant is urg ing us t o r e w eigh the evidence ; we cannot

. ( Houston
, supra , 54 Cal. 4th at p. 1215.) What i s more, defendant ’ s charac t eriza ti o n of the evidenc e is unduly skewed: Defendant complain s th at Dr . Jones ’ s opinio n is less worthy of
creden ce be cause he on ly read the tra n sc rip ts of defendant ’ s 13 jail calls, but both of d efend ant ’ s experts

— Dr. G ilewski and Dr. Leitman

— also relied chie fl y or solely on the transcripts as well ; further, Dr. Gi lewski testified t hat his rev iew of the audio of some of t h ose t apes sho wed defenda n t neither “ st utt er[i ng] ” nor

“ delay[ing] ” his responses to questions

, which obliterate s the notion that def

endant’s ora l p resentation would have created a different impression than merely readin g the transcripts. Defendant ’ s argumen t also igno res the law

, w hich ha s affirmed
the propriety of considering “ testimony from police o r jail

person n el regarding the def endant ’ s app ar e nt mental state. ” ( Med in a , supra , 51 C a l. 3d at p. 887.)27 Last ly, defend ant contends that the trial court ’ s rul ing is defe ctive becau s e (1) the court mistakenly relayed that Dr. Jones
had defini tively diagnosed defendant as malingering , when Dr.
Jones h ad actually testified that malingering was “ highly likely

, ” and (2) the cou rt neglected to rule on both prongs of the compete ncy test. D ef

endant is wrong on both scores. Because we are examining the sufficiency of the evi d ence irre spective of the trial c ou r t ’ s actual rationale (e.g., People v. Zapien ( 1993) 4
C al. 4th 929 , 976)

, any error in the trial court ’ s charact erization o f
Dr. Jones ’ s testimon y is irrelevant if we otherwise c onclude that the e vidence

— properly viewed

— d o es not amount to “ su bstantial

ev id e nce

. ” As explained above, we have so concluded. In any event, t he evid ence of malingering (from defendant ’ s ab ility to

tu rn his ai l m en t on and off at will to his selective memory) is overwhelmi ng even though Dr. Jones w as careful t o speak in probabili ti e s rather than absolutes

. The court ’ s ruling is also sufficient. Althou gh the court only specifically reference d
defendan t ’ s “ ab ilit y t o assist his attorney in the preparation of the defense

, ” the court more b r oadly fou nd that de fendant ’ s
pr of f er ed evidence did not call his “ competence ” into question

. Be cause “ competence ” necessarily includes the ad ditio nal finding
that a de fendant ha s a ‘ “ rational as well as fa ctual understa nding of the proceedings against him” ’ ( Dusky

, supra , 362 U

. S. at p. 402), and because the trial court considered

— and necessa rily

re j ected

— Dr. Gi lew s k i ’ s dia gnosis of schizot ypal person ality disorder that m eant tha t d efendant was operating in an alternate

r e al ity, we may comforta b ly infer that the tr ial court ’ s

co m petenc e finding encompassed both aspects of the competency

test. ( E.g., Lyn n v. G eorge (2017) 15 Cal.App. 5th 630, 642 [ “ In

t he absence of an expr ess find i ng , we usually would infer that the28

trial court made implied find i ngs to support its d ec ision, and t h en test the implied findings for substantial evidence. ” ].)

3

. A pril 20 21 ruling not to convene a second
competen cy hearing
Def e n dant lastly con tends th a t the trial c o urt ’ s April 2021
deci sion no t to suspend the crimin a l proceedings prior to sentencin g i n order to convene a second competency hearing wa s i ncorrect

. De fendan t urges that he offered two new pie ces of

e vidence

— nam ely, (1 ) a further up dated op i ni on of Dr. Gi lew sk i that defendant was no t malingering bas e d on a dmi nistering him

ano ther malinge ri n g test, and (2) defendant ’ s “ confused ”

pr e sente nce interview with the p robation officer. The trial cou rt did not err in con cluding that those it ems of ev i de nce d id not constitute “ substantial evidence ” that “ casts seri o us doubt ” upon its p rior finding of competency. Dr. Gilew s k i ’ s report is rep etitive
of all of his pr ior re ports, and the additional test ing and opin io ns he off er ed in this lat est r eport in n o way undermine d or otherwise impeac h ed the evi dence of defendan t ’ s ability to turn
h is odd behavi or on and off . And defendant ’ s confus ed affect with the probation o fficer is no different than his confused affect in
fro nt of the jury and the man y psychol o gi st s who have evaluated him; more to the point

, it adds nothing to the mix of ev iden ce or the fac t t hat all of thos e inst ances were the product of malingering. Def

e ndant argues that Dr. Gil ew s k i ’ s mo st recent

rep ort should be given greater weig h t and th a t Dr. Gilewsk i is a

mo re persuasive witness. Al as, this is yet a nother invitation to reweigh the ev i dence that we must respectfully decline.
II. Evi dentiary Ruling Defe n dant argues that the trial court erred in no t allowi ng Dr . Gilewsk i to te stify that d ef endant ’ s autism and schizotypal29

personality dis o rder precluded him from forming t he specific
int en t that is an element of the six lewd and lascivious conduct

co u nts
, su ch that those particular conviction s must be vacated. Relate d l y, defendan t argues th a t the trial court also committed
an instructio nal error because the court would hav e been required t o i ns truct the jury on how a m ental disease or defect can negate s peci fic intent if Dr. Gi lewsk i ’ s testimony had been admit ted. Because defen da nt ’ s claim o f instructional error hinges on whether the tr ial co urt made an incor rect evidentia ry ruling, we s ta r t with th e ev identiary ruling. Contrary to what defendant implie s, t he trial court did not
exclude Dr. Gilew sk i ’s testim o ny as irrelevant; ins tead, the c o ur t excluded it under Evidence Code section 35 2 o n the ground that its probative va lue was substan ti a lly out weighed by the danger of unfair prejudice

, confusing the j ury, undue consumption of time

, and the like

. (Evid. Code , § 352.) The trial court did n o t abus e its discretion in so holding.
The cou rt d id not abu se it s discretion in ru ling that Dr. G il e wsk i ’s testimony had little probative value because the court ha d an ample basis to conclude that his testimony was speculativ e: Dr. Gilewsk i reas oned tha t d efendant suffered from
autism and schizotypal p ers o nality disorder between 20 0 3 and
2012 because de f

e n dant suffered from them in 2019, but Dr. Gilewsk i freely admitte d he had n o conte mp oraneous evidence
that defen dant had ei ther af fliction durin g th e re le v ant 2003 to
2012 timeframe.
The court also did no t abuse its discretion in ruling t hat any probati ve value this evidence h ad was substantially outweighed by the dange r s o f und ue prejudice and confusing the jury b ecause the speculative basis for Dr. Gil e ws k i ’s opinion left30

the jury to guess whether def end a nt ’s cur rent afflictions
somehow “related back ” to the time of the crimes

. The testimon y would also have been un dul y pr ejudicial to the People because it would h ave raised the specter of a ment al health d e fense without any support that defendant ’s all ege d mental condi tions actually

pre cl uded the format io n of defendant ’s specific intent at the time of the charged crimes

. Wh at is more, admitting this evidence would undoubtedly have opened the doo r for the Pe o ple to respond with evidence that Dr. Gilew sk i ’s e ntire diagnosis was

wrong because it was the pro du c t of years of malingering by defendant

. Given the volumes o f rep orte r ’s transcripts devote d to these very topics prior to trial, the trial court acted wi t hin its discretion in concluding that re litig at ing this issue before the ju ry on the basis of a sp ec u lative expert opinion was a basis for excluding Dr. Gilewsk i ’s testimony under Evidence Co de section
352

. Defendant offers two a rguments in rejoinder. First, he
asserts that he has a constitu tional ri ght to present a defense.
T his is true, but that right does not trump the rules of evidence, including Evidence C o de section 352. ( People v. R obinso n (2005)
37 Cal. 4th 592, 626

- 627 [ ‘ “ [A]s a general matter, the ordinary rules of evidence do not impermis s ibly infringe on the accuse d ’ s [state or federal constitutional ] right to present a defense. ” ’ ].) Second, defenda n t asserts that People v. S o telo

- Urena (2016) 4
C al. App. 5th 732 warra nt s revers al. It does not. That case dealt with whether it was error to exclude expert testimony th at persons who are homeless have a heightened sen sitivi ty to b eing threat ened because that evidence was relevant to a claim of self

def ense. ( Id. at pp. 7 45

- 746.) This case is very different

, as it31

deals with whether it was er ror to exclude speculative e xper t testimony under Evidence Code section 352. In light of our conclusion that ther e was no evidentiary

error, we n eed not reach the instruction al error o r issues of prejudi ce. DIS POSITION The judgment is affirmed. NOT TO BE P UB LISHED IN THE OFFICIAL R EPORTS

.

______________________, J.
HOFFSTADT

We concur:

_ ___ _________

____________, A cting P. J. CHAVEZ

______________

_____ ______ , J

. * BE NKE

* R e tired Associate Justice of the Cour t of Appeal, Fou rth Appellate District, assigned by the Chief Justice p ursuant to article VI, section 6 of the California Constitution.