People v. Burns CA5

Filed 10/25/21 P. v. Burns CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F078505

Plaintiff and Respondent, (Kern Super. Ct. No. BF165297A)

v.

ORDER MODIFYING OPINION AND

KENNETH DWAYNE BURNS, DENYING REHEARING

[NO CHANGE IN JUDGMENT]

Defendant and Appellant.

THE COURT:

It is ordered that the opinion filed herein on September 29, 2021, be modified as

follows:

1. On page 25, footnote 6, beginning “We disagree with” is deleted and the

following footnote is inserted in its place:

The judicial immunity accorded to defendant’s statements to

6

a competency expert will normally require that experts appointed for

competency examinations not testify at trial regarding any mental

issue. (See Tarantino v. Superior Court, supra, 48 Cal.App.3d at

p. 470.) Hernandez extended this rule to bar testimony from any

expert who has reviewed the “fruit of [ ] defendant’s competency

evaluation,” including reports. (Hernandez, supra, 143 Cal.App.4th

at p. 477.) While this may be the practical result in most cases, as

we discuss below, we disagree with Hernandez to the extent it can

be read as holding that the Fifth Amendment requires exclusion of

testimony by any expert who has been exposed to defendant’s

competency statements or the fruit of those statements.

2. At the end of the first paragraph on page 28, after the sentence ending

“therein as a basis for his opinion or testimony,” add as footnote 8 the

following footnote, which will require renumbering of all subsequent

footnotes:

8

We are not persuaded by defendant’s argument that

Dr. Longwith’s expert opinion “used” the competency report just by

discussing it within his own report.

There is no change in the judgment. Except for the modifications set forth, the

opinion previously filed remains unchanged.

Appellant’s petition for rehearing filed on October 14, 2021, is denied.

HILL, P. J.

WE CONCUR:

DETJEN, J.

FRANSON, J.

2.

Filed 9/29/21 P. v. Burns CA5 (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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F078505

Plaintiff and Respondent,

(Super. Ct. No. BF165297A)

v.

KENNETH DWAYNE BURNS, OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Stephen D.

Schuett and Barbara A. Lane, Judges.†

C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.

Vasquez, Doris A. Calandra, William K. Kim, Amanda D. Cary and Lewis A. Martinez,

Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

† Judge Lane ruled on the motion to quash/suppress prior to the original date set for trial.

Judge Schuett presided over the sanity court trial and sentencing.

INTRODUCTION

Defendant Kenneth Dwayne Burns robbed a bank in 2016. After the trial court

denied his motion to quash the search warrant and suppress evidence, defendant

stipulated to the amended information charging him with robbery, false imprisonment,

evading the police, and various felony enhancements. The court found defendant guilty

after a court trial. During the sanity phase of his trial, defendant moved to exclude the

testimony of the prosecution’s sanity expert who had reviewed defendant’s mental

competency report prepared earlier in the proceedings. The trial court denied the motion

and ultimately found defendant sane at the time of the offenses. Denying probation, the

trial court sentenced defendant to 50 years to life, plus 22 years, including four separate

five-year prior serious felony conviction enhancements under Penal Code section 667,

subdivision (a)(1)1 and two 1-year prior prison term enhancements under section 667.5,

subdivision (b).

Defendant raises the following issues: (1) the trial court erred in denying his

motion to suppress evidence seized pursuant to a warrant issued based upon an affidavit

that failed to establish probable cause; (2) the trial court erred during his trial’s sanity

phase by admitting testimony from the expert who reviewed defendant’s mental

competency examination report, thereby permitting use of his immunized statements in

violation of the Fifth Amendment; (3) the trial court erred in enhancing his sentence

based on two prior serious felony convictions that had not been brought and tried

separately pursuant to section 667, subdivision (a)(1); (4) we should remand to permit the

trial court to consider whether to strike his prior serious felony conviction enhancements

in light of Senate Bill No. 1393; (5) we should strike the robbery fine (§ 1202.5), the

court operations assessment (§ 1465.8), and the court facilities assessments (Gov. Code,

§ 70373) because the trial court imposed them without considering his ability to pay, and

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

2.

we should remand for the trial court to determine whether he had the ability to pay the

$300 minimum restitution fine (§ 1202.4); (6) even though section 1001.36 was in effect

at the time he was sentenced, it applies retroactively to his case and requires remand or,

in the alternative, his counsel was ineffective in failing to request mental health pretrial

diversion; (7) we should remand to permit the trial court to strike the one-year prior

prison term enhancement under section 667.5, subdivision (b) considering Senate Bill

No. 136.

The People concede the issues relating to enhancements for prior convictions and,

because such concessions will result in remand for resentencing, agree defendant should

be permitted to request that the trial court consider his ability to pay before imposing any

fines, fees, or assessments. The People defend the trial court’s decision to deny

defendant’s motions to suppress and to exclude testimony and argue that defendant

forfeited his claim regarding the failure to request mental health pretrial diversion.

We agree with the People’s positions, except for one concession. Ultimately, we

remand the matter to the trial court to (1) strike two prior serious felony conviction

enhancements for convictions not brought and tried separately pursuant to section 667,

subdivision (a)(1); (2) consider whether to strike defendant’s prior serious felony

conviction enhancements in light of Senate Bill No. 1393; and (3) strike one of the one-

year prior prison term enhancements under section 667.5, subdivision (b).2 We affirm

the judgment in all other respects.

PROCEDURAL BACKGROUND

Preliminary Proceedings

Originally charged by complaint, defendant was held to answer after his

preliminary hearing on September 2, 2016. The Kern County District Attorney filed an

2 Defendant’s 1991 felony conviction for robbery was not a sexually violent offense. The

prior prison term enhancement for his 1993 conviction is not affected by this appeal.

3.

information charging defendant with robbery (§ 212.5, subd. (c); count 1), false

imprisonment with force (§§ 236, 237, subd. (a); count 2), and misdemeanor resisting

arrest (§ 148, subd. (a)(1); count 3). As to counts 1 and 2, the information alleged four

prior “strike” convictions within the meaning of the “Three Strikes” law (§§ 667,

subds. (c)–(j), 1170.12, subds. (a)–(e)), and two prior prison terms (§ 667.5, subd. (b)).

As to count 1, the information alleged four prior serious felony convictions (§ 667,

subd. (a)(1)). Defendant pled not guilty to the charges and denied all allegations in the

information.

On September 15, 2017, upon motion of defense counsel, the trial court suspended

criminal proceedings and appointed Dr. Dean Haddock to determine defendant’s

competency to stand trial pursuant to section 1368. On October 6, 2017, the court

received the report of Dr. Haddock, found defendant competent to stand trial, and

reinstated criminal proceedings.

Thereafter, on November 17, 2017, defendant entered an additional plea of not

guilty by reason of insanity. The court appointed Dr. Thomas Middleton and Dr. Gary

Longwith to examine defendant.

Defendant moved to quash the search warrant and to suppress evidence on April 3,

2018. The prosecution filed a written opposition. The court heard and denied the motion

on April 12, 2018.

Trial Proceedings

The guilt phase of defendant’s trial commenced on October 9, 2018. The trial

court accepted defendant’s stipulation to all allegations in the amended information3 after

defendant waived his constitutional trial rights. As a result, defendant agreed that on

August 19, 2016, he (1) willfully and unlawfully took personal property in the possession

3 The amended information was filed on October 9, 2018, correcting the date of one of the

prior convictions to October 10, 1991.

4.

of another, from his or her person or immediate presence and against his or her will by

means of force and violence; (2) willfully and unlawfully violated the personal liberty of

another by violence, menace, fraud or deceit; and (3) willfully and unlawfully resisted,

delayed, or obstructed a peace officer who was discharging his or her duty. Defendant

also stipulated to all special allegations, and no evidence was otherwise presented in the

guilt phase of the trial. The sanity phase of the court trial was rescheduled to October 16,

2018.

At the sanity phase of the trial on October 16, 2018, defendant presented the

testimony of Dr. Thomas Middleton, who attested that defendant was insane at the time

of the offenses. Defendant offered no additional evidence.

The following day, the court conducted a hearing pursuant to Evidence Code

section 402 to address defendant’s motion to exclude Dr. Longwith from testifying at the

sanity phase of the trial. Defendant had filed a motion on October 9, 2018, to exclude

Dr. Longwith’s testimony because the doctor had reviewed Dr. Haddock’s competency

report and defendant’s immunized statements made in competency proceedings. The

prosecution filed its opposition on October 15, 2018. The court denied the motion after

hearing testimony from Dr. Longwith.

The sanity phase of the court trial continued with Dr. Longwith’s testimony that

defendant was sane at the time of the offenses and testimony from other prosecution

witnesses. The court found that defendant was sane at the time of the offenses, adjudged

him guilty on all counts, and found the special allegations to be true.

Sentencing Hearing

On November 28, 2018, the trial court sentenced defendant to a total term of

50 years to life, plus 22 years, including four separate five-year prior serious felony

conviction enhancements (§ 667, subd. (a)(1)) and two one-year prior prison term

enhancements (§ 667.5, subd. (b)). The trial court ordered defendant to pay a $10

robbery fine (§ 1202.5), a $300 minimum restitution fine (§ 1202.4, subd. (b)), $120 in

5.

court operations assessments (§ 1465.8), and $90 in court facilities assessments (Gov.

Code, § 70373).

This timely appeal followed.

DISCUSSION

I. The trial court did not err in denying defendant’s motion to quash the search

warrant and suppress the evidence seized.

Defendant contends the trial court erred when it denied his motion to quash the

search warrant and suppress the evidence seized from his motel room because the

affidavit in support of the warrant failed to establish probable cause. More specifically,

defendant argues that the search warrant affidavit provided no probable cause that the

items to be seized were evidence of a crime. We reject defendant’s arguments and affirm

the trial court’s denial of the motion to quash the warrant and suppress evidence.

A. Background

On August 19, 2016, the day of the bank robbery, Detective Kenneth Sporer

authored a search warrant for defendant’s motel room, and Judge Brian M. McNamara

signed the warrant at 5:50 p.m. The warrant authorized the seizure of firearms and

related items, electronic communication devices, items establishing the individual with

dominion and control over the seized items, and a DNA sample from defendant.

Detective Sporer’s affidavit described his training and experience, including that

he had been an officer for 19 years and was currently assigned to robbery/homicide. The

affidavit detailed the circumstances of the offenses, defendant’s apprehension, evidence

of the robbery seized from defendant, and described the discovery of a motel key and the

follow-up investigation that established the motel room belonged to defendant:

“On 8-19-16 at approximately [3:23 p.m.] officers of the Bakersfield

Police Department were dispatched to … [the] Bank, regarding a robbery

that just occurred. When officers arrived on scene, they were able to

confirm that a bank robbery had just occurred. The suspect in the robbery

was armed with a firearm and was wearing a mask. The suspect was able

6.

to obtain an unknown amount of currency during the robbery. The bank

teller also included a money tracking device with the money that was taken.

“The first patrol officers to arrive on scene were directed to the area

west of the bank. Those officers responded to the area and located

[defendant] in a large sump area. [Defendant] was taken into custody and

was found to be in possession of a replica firearm, a clothing item with eye

holes cut into it, US currency, and the tracking device from the bank.

“While searching [defendant], officers located a motel room key

card in his pocket. Officers were able to recognize that the room key

belong[ed] to a Motel .… There [was] a Motel … just a short distance east

of where [defendant] was arrested.

“I responded to the Motel … and spoke with employees. I provided

them with the room key card. They were able to confirm that the key card

belong[ed] to their motel. The room key card was swiped and returns [sic]

to room [No. ]143. They advised that the room was currently rented to

[defendant].

“It is unknown at this time whether [defendant] ha[d] an accomplice

or not, or if he has any additional weapons inside his motel room. I am

aware that people often possess additional firearms.

“By obtaining a DNA sample from [defendant], comparisons can

later be made against DNA located during this investigation.”

Pursuant to the warrant, officers seized a cut-up black shirt, $121, two cellular

telephones, a wallet, the receipt for the motel room, and a DNA swab from defendant.

Prior to trial, defendant moved to quash the warrant and suppress the seized

evidence pursuant to section 1538.5.4 The prosecution opposed the motion. After

4 Defendant’s motion argued that the information contained within the cellular phones

should also be suppressed for failing to comply with the Electronic Communications Privacy Act

(§ 1546 et seq.). However, at the motion’s hearing, the prosecutor acknowledged that the

warrant authorized only the seizure of the cellular phones and that they had not been searched

pursuant to the warrant. Defendant has not raised this issue on appeal.

7.

hearing and considering the arguments from both sides, the trial court denied the motion

as follows:

“The detective followed up on a fluid investigation.[5] Officers had

been to the bank. They had been to the scene of the sump where []

defendant had been located. They found the [m]otel key on him and

checked the [m]otel, where he was a renter, Room 143. I think that’s the

right room number. The warrant as a whole encompasses things used as

means for committing a felony, which would include, just based on your

information, the papers, the material for making the facemask that was used

at the bank. So it’s a thin warrant, as warrants go, but I think it is

sufficient.”

B. Legal Principles and Standard of Review

“The Fourth Amendment to the United States Constitution prohibits ‘unreasonable

searches and seizures’ and requires search warrants to be issued only upon a showing of

‘probable cause’ describing with particularity ‘the place to be searched, and the ... things

to be seized.’ [¶] The pertinent rules governing a Fourth Amendment challenge to the

validity of a search warrant, and the search conducted pursuant to it, are well settled.

‘The question facing a reviewing court asked to determine whether probable cause

supported the issuance of the warrant is whether the magistrate had a substantial basis for

concluding a fair probability existed that a search would uncover wrongdoing.’ ” (People

v. Westerfield (2019) 6 Cal.5th 632, 659 (Westerfield).)

“ ‘The test for probable cause is not reducible to “precise definition or

quantification.” ’ [Citation.] But we have stated that it is ‘ “less than a preponderance of

the evidence or even a prima facie case.” ’ ” (Westerfield, supra, 6 Cal.5th at p. 659.)

“The standards for reviewing search warrant affidavits stated in United States v.

Ventresca (1965) 380 U.S. 102 bear repetition here. ‘If the teachings of the Court’s cases

are to be followed and the constitutional policy served, affidavits for search warrants …

5 In this regard, we note that the warrant was signed at 5:50 p.m., approximately two and

one-half hours after the robbery.

8.

must be tested and interpreted by magistrates and courts in a commonsense and realistic

fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal

investigation. Technical requirements of elaborate specificity once exacted under

common law pleadings have no proper place in this area. A grudging or negative attitude

by reviewing courts will tend to discourage police officers from submitting their evidence

to a judicial officer before acting. [¶] … [T]he courts should not invalidate the warrant

by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.

Although in a particular case it may not be easy to determine when an affidavit

demonstrates the existence of probable cause, the resolution of doubtful or marginal cases

in this area should be largely determined by the preference to be accorded to warrants.’ ”

(People v. Mesa (1975) 14 Cal.3d 466, 469.)

C. The Search Warrant Affidavit Established Probable Cause

Defendant argues that the affidavit failed to establish the items listed in the search

warrant would be evidence of a crime. We disagree. The affidavit in support of the

search warrant provided probable cause to believe that defendant had committed a

robbery. Detective Sporer detailed the circumstances of the robbery itself and

defendant’s apprehension in proximity to the money taken from the bank, a mask, and the

GPS tracking device placed in the money by the bank teller. These facts sufficiently

established that a crime had been committed and that defendant was the perpetrator.

Defendant was also arrested in possession of a motel key. Detective Sporer described

that he had identified the motel that issued the key, identified the room opened by the

key, and learned that defendant rented the room. Detective Sporer requested permission

to search defendant’s room for firearms and related items, electronic communication

devices, items establishing the individual with dominion and control over the seized

items, and a DNA sample from defendant. While Detective Sporer did not specifically

identify why these items were evidence of a crime, he asserted that they were evidence.

9.

We believe that given the evidence that defendant committed a bank robbery and that he

was staying in the motel room, common sense supports the inference that the motel room

would contain evidence that defendant was planning to rob a bank and his motive for

doing so.

Defendant argues that Detective Sporer’s failure to articulate why electronic

communication devices would provide evidence of the crime, defeats probable cause to

believe that they would contain such evidence. We disagree. The issuing judge was

permitted to draw his own inferences from the facts presented even if the affiant failed to

articulate the inference himself. The Fourth Amendment does not prohibit the use of

reasonable inferences drawn from evidence; it simply requires that such inferences be

drawn by a neutral and detached magistrate. (United States v. Ventresca, supra, 380 U.S.

at p. 106.) “ ‘[P]robable cause must be examined in terms of cause to believe that the

evidence sought will aid in a particular apprehension or conviction. In so doing,

consideration of police purposes will be required.’ ” (Andresen v. Maryland (1976)

427 U.S. 463, 483). For example, in Andresen, the United States Supreme Court upheld

the seizure of evidence of another related real estate fraud after concluding “that the

trained special investigators reasonably could have believed that the evidence [of a

separate fraud] … could be used to show [the] petitioner’s intent with respect to the

[fraud transaction under investigation].” (Ibid.)

Even without such specific articulation of the relevance of electronic

communication devices, the facts set forth in the affidavit support a reasonable and

commonsense conclusion that an individual engaged in a robbery likely would use

electronic communication devices to obtain information regarding the bank or banks that

he intended to rob as part of the planning for such a crime. Reason and common sense

also support the inference that defendant could have communicated his intentions in

robbing the bank to someone else or that he had assistance in planning and executing his

10.

plan to rob the bank, and that such evidence would be in his room and contained within

communications found on electronic devices located in the room.

Defendant also argues that the search warrant could not request a DNA sample

from defendant because no DNA analysis had yet been performed on the evidence seized

from him during his arrest. We note that the officers seized a makeshift mask and

BB gun. Such items lend themselves to a DNA analysis and defendant’s DNA would be

necessary for comparison. Defendant has provided no case authority for the proposition

that law enforcement may not seize a DNA sample from a defendant where evidentiary

items have been seized that have not yet been subjected to DNA testing. Considering the

items seized, it is probable that DNA would be recovered, and that defendant’s DNA

would be evidence of his involvement in the bank robbery.

Interpreting the warrant affidavit in a commonsense, rather than hypertechnical,

manner prevents us from invalidating this warrant. Furthermore, even if we found this to

be a marginal case, the strong preference for warrants requires us to resolve questions

regarding probable cause in favor of the warrant. (United States v. Ventresca, supra,

380 U.S. at p. 109; People v. Mesa, supra, 14 Cal.3d at p. 469.) “[The California

Supreme Court] explained in Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, that the

warrant ‘can be upset only if the affidavit fails as a matter of law to set forth sufficient

competent evidence’ supporting the finding of probable cause.” (Westerfield, supra,

6 Cal.5th at p. 659.)

Defendant’s final argument challenges Detective’s Sporer’s expert conclusion that

individuals who possess one firearm often possess additional firearms. Neither party has

brought to our attention any case addressing this specific issue. Our research has found

two such cases, but both involved warrants searching for evidence of individuals in

unlawful possession of firearms. (United States v. King (9th Cir. 2021) 985 F.3d 702,

709 [felon’s possession of firearm at residence on behalf of another individual on one

occasion raised an inference that the felon also possessed firearms for others and,

11.

therefore additional firearms were likely to be unlawfully possessed at his residence];

United States v. Nora (9th Cir. 2014) 765 F.3d 1049, 1059–1060 [observations of the

defendant with one firearm did not provide reasonable grounds to believe additional

firearms would be found in his residence].) However, even if we assume that the

affidavit did not establish probable cause to search for additional firearms in defendant’s

motel room, this would not invalidate the warrant or require suppression of items seized

pursuant to other categories in the warrant. It is well established that an overbroad

warrant may be upheld as to valid portions where there is probable cause to seize some of

the items specified in the warrant although not others. (Aday v. Superior Court (1961)

55 Cal.2d 789, 797.) Where a category of evidence is not supported by probable cause,

we sever the invalid portion but do not otherwise invalidate the warrant. (Aday, at p. 797;

People v. Joubert (1983) 140 Cal.App.3d 946, 952; see United States v. Sears, (9th Cir.

2005) 411 F.3d 1124, 1130; United States v. Fulbright (9th Cir. 1997) 105 F.3d 443,

453.) Furthermore, defendant has not identified any evidence that would have been

introduced at trial pursuant to this provision of the warrant, nor could he, because no

firearms were seized. Accordingly, even if we assume the firearms category was

overbroad, defendant has not shown that any evidence from that category should have

been suppressed. (See People v. Farley (2009) 46 Cal.4th 1053, 1102; People v.

Camarella (1991) 54 Cal.3d 592, 607, fn. 7 (Camarella); Aday, at p. 797.)

D. The Officers Relied Upon the Search Warrant in Good Faith

“Ordinarily, the exclusionary rule—a ‘judicially created remedy designed to

safeguard Fourth Amendment rights’—[operates] to preclude ‘the use of evidence

obtained in violation’ of the Fourth Amendment.” (United States v. Barnes (9th Cir.

2018) 895 F.3d 1194, 1201.) However, under the good faith exception to the

exclusionary rule, evidence seized by police officers acting “in objectively reasonable

reliance on a search warrant that is issued by a detached and neutral magistrate but is later

12.

found to be invalid for lack of probable cause” need not be suppressed. (People v. Willis

(2002) 28 Cal.4th 22, 30.) An officer’s reliance is objectively reasonable if a reasonably

well-trained officer would not have known that the search was illegal despite the

magistrate’s authorization, such as where the supporting affidavit is “ ‘ “so lacking in

indicia of probable cause as to render official belief in its existence entirely

unreasonable.” ’ ” (Id. at p. 32, citing United States v. Leon (1984) 468 U.S. 897, 923

(Leon).)

In Leon, although the defendant asserted that no reasonable and well-trained

officer “could have believed that there existed probable cause” for the search, the high

court rejected that claim, observing that the searching officer had submitted to the

magistrate “much more than a ‘bare bones’ affidavit.” (Leon, supra, 468 U.S. at p. 926;

see Camarella, supra, 54 Cal.3d at pp. 603, 606.) The affidavit in this case established

probable cause to believe that defendant had committed a bank robbery and personal

items would be in his motel room that would be useful in determining if he was working

alone and in identifying the steps he took to plan the robbery. While Detective Sporer

could have articulated the connection between the evidence expected to be found in the

motel room and the crime more clearly, the question under Leon is not whether additional

information would have been reasonable, but whether a reasonable officer in Detective

Sporer’s position would have known that the affidavit, as it existed at the time it was to

be presented to the magistrate, was legally insufficient without more.

We conclude on these facts that a well-trained officer could have reasonably relied

upon the warrant issued in this case because the affidavit presented a close or debatable

question on the issue of probable cause. (See Leon, supra, 468 U.S. at p. 926.) Thus, it

cannot be said that Detective Sporer should have known that his affidavit failed to

establish probable cause (and hence that he should not have sought a warrant or executed

it). We find the affidavit in this case is more than “ ‘bare bones,’ ” including enough

information to permit a magistrate to reasonably infer the evidentiary value of the

13.

requested categories of items (ibid.) and was not “ ‘so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable’ ” (id. at p. 923).

We conclude the affidavit included sufficient information “to make the probable cause

determination a close question for any objectively reasonable and well-trained officer,

and, indeed, for reasonable judicial officers as well. ([Id.] at p. 926 [affidavit ‘provided

evidence sufficient to create disagreement among thoughtful and competent judges as to

the existence of probable cause’].” (Camarella, supra, 54 Cal.3d at p. 606.)

Accordingly, we conclude that even if the probable cause determination was close

or debatable, Detective Sporer acted reasonably when he took the affidavit to a judicial

officer for determination. His subsequent reliance on the warrant was objectively

reasonable under Leon, and thus suppression of the evidence was not required. (See

Camarella, supra, 54 Cal.3d at pp. 606–607.)

II. The trial court did not err in finding that the prosecution’s sanity expert did not

“use” defendant’s immunized competency examination or statements in his

testimony.

Defendant argues that the admission of Dr. Longwith’s testimony at the sanity

phase of his trial violated his Fifth Amendment privilege against self-incrimination

because the doctor reviewed defendant’s competency report while assessing his sanity.

We find Dr. Longwith’s review of defendant’s immunized statements and fruits thereof

did not result in the use of his immunized statements against him during trial. We reject

defendant’s argument and conclude the trial court properly admitted Dr. Longwith’s

testimony.

A. Background

1. Competency Proceedings

As previously noted, the trial court had suspended proceedings and appointed

Dr. Dean Haddock to determine defendant’s competency to stand trial pursuant to

section 1368. Based upon Dr. Haddock’s report, the trial court found defendant

14.

competent to stand trial. Dr. Haddock’s report described his review of defendant’s prior

mental health assessments, his own competency testing, information obtained from

defendant regarding his mental health history, and defendant’s statements regarding the

offense. Defendant’s statements to Dr. Haddock included the following:

“I had never been on Seroquel before … I was staying in a Men’s Home at

the time … I woke up hallucinating after taking the Seroquel and the voices

told me my roommate was the devil and he was going to kill me … The

voices told me the house I was living in was going to blow up so I ran out

… I found myself on … Avenue … The voices told me to go to the bank

and get some money … I was supposed to get exactly $10,000 and donate

the money to a church or a homeless shelter or my family would die …

Next thing I know when I came to my head was busted open and my knee

was hurting … I asked to be single celled when I got to jail … If I had it to

do again I would not have taken the Seroquel.”

2. Dr. Longwith’s Report—Prosecution Expert

Thereafter, defendant entered an additional plea of not guilty by reason of insanity

and the trial court appointed Drs. Middleton and Longwith to examine defendant.

Dr. Longwith’s report described his approximately two-hour interview and evaluation of

defendant. Regarding the offense, defendant’s account to Dr. Longwith was more

detailed than that provided to Dr. Haddock and included information that defendant had

been evicted from the men’s home and was staying at a motel at the time of the robbery.

Defendant made statements to Dr. Longwith regarding the day of the robbery:

“… Defendant stated he picked up his medication 2-3 days before the

offense[s] and started the new medication on the 14th of August 2016. He

then began to hear voices and he saw demons. That evening his roommate

work [sic] him up and [] Defendant responded by throwing a ‘dumbbell’ at

him and then began to punch and kick him. The manager of the Men’s

home kicked him out in the early morning hours (2-3 AM). [] Defendant

then met with social services later that day or the next, got money, and

asked to be placed in a new Men’s home. In the meantime [] Defendant

secured a motel room to live. He described the intensity of the voices at

that time to be off and on. He continued his medications, to include the

Seroquel, and he telephoned his doctor’s office on the day of the offense,

but the psychiatrist was not available. The voices then began to tell him the

15.

motel he lived in would blow-up. He ran out of the motel. The voices then

told him his family was going to die. The voices continued, if he didn’t

want his family to die he had to go [to] the bank and get $10,000 dollars

and donate that many [sic] to a church. [] Defendant recalled going to the

Bank, but he does not recall going inside, having a weapon, taking the

money, or leaving the bank. He stated the next thing he could recall was

sitting in the police car feeling dizzy and later talking with the police. I

asked if he gave the officers a statement. He stated he did. [] Defendant

stated he told the officers about the voices, and the fact the voices told him

he had to get $10,000 dollars and donate it or his family would be killed.”

The report reflects that Dr. Longwith compared defendant’s statements to him

with statements to Dr. Haddock, noting that while defendant told Dr. Haddock the voices

threatened to blow up the men’s home, he told Dr. Longwith that the voices threatened to

blow up the motel room. Dr. Longwith’s report concluded that defendant was sane at the

time of the offense. Dr. Longwith found it unusual that while defendant claimed to have

a clear recall of the events preceding and following the robbery, he could not remember

the robbery itself. While defendant claimed to have told the officers he was hearing

voices, the police reports did not support his statement. The reports reviewed by

Dr. Longwith did, however, include defendant’s statement to an officer that defendant

thought he had obtained more money from the robbery than what had been recovered.

Dr. Longwith believed that defendant’s statement to the officer regarding the amount

stolen was inconsistent with having no memory of the robbery and with having told the

officer defendant was hearing voices. Given these inconsistences and the several test

results showing that defendant was malingering, Dr. Longwith did not believe that

defendant had been hearing voices at the time of the robbery and, therefore, found he was

sane at the time of the offense.

3. Sanity Phase—Defense Evidence

The defense called Dr. Thomas Middleton, who testified that he prepared for

defendant’s evaluation by reviewing defendant’s criminal history, the police reports for

the current offenses, and several mental health evaluations and assessments of defendant

16.

prepared prior to the offenses in 2015 and 2016. He interviewed defendant, obtaining

information concerning defendant’s psychiatric history and prescribed medications.

Defendant said he experienced psychotic symptoms dating from when he was a juvenile

and had taken medication for decades. His mother also suffered from mental illness.

In Dr. Middleton’s opinion, defendant’s symptoms were cycling, and defendant

appeared to be showing increasing paranoia, hallucinations, and instability.

Dr. Middleton concluded that at the time of the offense, defendant was under a delusional

belief that if he did not obtain $10,000, his family would be harmed.

Dr. Middleton concluded that defendant was insane at the time of the offenses and

that while defendant understood the nature and quality of his actions, he did not

understand that they were wrongful. Specifically, defendant believed that it was essential

and imperative that he rob the bank because defendant said he believed that the devil

would kill him and cause harm to his family unless he provided $10,000.

When cross-examined, Dr. Middleton testified that defendant’s statement—the

devil would kill defendant and harm his family if he did not provide $10,000 to the

devil—was the only basis for concluding defendant was insane at the time of the offense.

Dr. Middleton testified that he diagnosed defendant with a schizoaffective disorder based

on his mental history, and that defendant may experience hallucinations, delusions, and

depression. However, he also testified that individuals with such a mental condition

could be completely sane and culpable. According to defendant’s medical records, he

was first diagnosed with the disorder by an intern at Kern County Mental Health and had

a history of suicidal thoughts but had never reported auditory hallucinations that

commanded him to commit other types of crimes.

Dr. Middleton also reviewed defendant’s psychological assessment, prepared a

week before the crime, that revealed defendant had been evicted from a sober living

home, had no place to stay, and was cut off from his financial aid. Dr. Middleton agreed

these facts were consistent with someone who was in need of money.

17.

The prosecutor introduced into evidence a recording and transcript of a jail call

between defendant and another individual the day following defendant’s arrest.

Defendant advised the individual that he was in jail. Defendant told the individual that

while he could not discuss the offenses because he was being recorded, “I didn’t do

nothin’ I was just at the wrong time and place, got crossed up, man, I’m lookin’ at some

time, though.” Dr. Middleton acknowledged that defendant did not report in the call that

he was hearing voices, which might not have been consistent with someone in a

delusional state. However, Dr. Middleton also speculated that defendant did not mention

his hallucinations because he was aware the call was being recorded. Dr. Middleton

conceded that defendant’s statement was inconsistent with his later claim to have

committed the robbery due to an auditory hallucination.

The prosecutor then introduced a video and transcript of a conversation between

defendant and an officer on the day of his arrest. Defendant asked the officer if they had

counted the money. The officer advised him that $600 had been taken. The officer

asked, “You thought it was more?” Defendant replied, “Yeah, man.” Defendant also

stated, “You shoulda told me 3 or 4 thousand.” Dr. Middleton testified that the video and

transcript had no effect on his opinion but acknowledged that defendant’s statements

were goal oriented. In response to questioning by the prosecutor, Dr. Middleton admitted

that defendant’s actions were also goal oriented, including going into a bank with a gun,

demanding money, concealing his identity by wearing a mask and hood, and wearing

socks on his hands to prevent leaving DNA and fingerprints at the scene.

Dr. Middleton testified he attempted to obtain additional information from the

defense but did not seek information from the prosecution, he had never been retained by

a prosecuting agency to render an opinion in 28 years, and that rendering an opinion of

insanity would increase the likelihood he would testify and earn more money from the

court.

18.

Dr. Middleton further acknowledged that he could not recall defendant’s prior

criminal history, but that defendant’s prior robbery convictions and prison commitments

would not affect his opinion. Dr. Middleton testified that his opinion would not be

affected by the timing of defendant’s decision to enter an insanity plea without additional

information, defendant’s planning and activities to arrange for the robbery, or that the

police report failed to support defendant’s claim that he had told officers when he was

arrested that he was experiencing hallucinations. As to this latter factor, Dr. Middleton

noted that the police report did reflect that the officers heard defendant yelling when he

fled from them, but they could not understand the words.

Dr. Middleton testified that he conducted the Miller Forensic Assessment of

Symptoms Test (M-FAST). Although he disputed that the test could be referred to as a

“malingering” test, Dr. Middleton explained that the M-FAST is a screening instrument

to assist in assessing an individual’s believability when they claim to be experiencing

symptoms of a mental condition. In defendant’s case, Dr. Middleton originally scored

defendant with a nine, “possibly indicative of malingering,” but then changed the score to

an eight after additional questioning of defendant, indicating “borderline malingering.”

While Dr. Middleton emphasized that the test was merely a screening procedure and not

conclusive for determining symptom validity, he performed no other tests and instead

relied upon defendant’s statements and mental history to render his opinion.

4. Section 402 Hearing on Admission of Dr. Longwith’s Testimony

Before the prosecution presented its case, the trial court heard evidence in

accordance with Evidence Code section 402 to address defendant’s motion to exclude

Dr. Longwith’s testimony. Defendant argued that Dr. Longwith’s review of

Dr. Haddock’s report on defendant’s competency compelled exclusion of his testimony.

The court heard testimony from Dr. Longwith regarding his review of the mental

competency report. Dr. Longwith testified he was appointed by the court to examine

defendant’s sanity at the time of the offense. Along with the appointment, Dr. Longwith

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received police reports and Dr. Haddock’s competency evaluation report from the court.

Dr. Longwith did not review the competency report until after he had examined

defendant and formed his own opinion on sanity. When he later reviewed the report after

forming his initial opinion, Dr. Longwith used it only to determine if defendant’s

statements to Dr. Haddock were consistent with those that defendant made to

Dr. Longwith. Nothing in Dr. Haddock’s report affected Dr. Longwith’s own opinion or

findings in the case. In formulating his opinion as to defendant’s sanity, Dr. Longwith

relied only on his personal interaction with defendant, his assessment of defendant’s

mental status, his findings based upon his assessment during the examination, and results

of the three tests he administered during his evaluation of defendant. According to

Dr. Longwith, Dr. Haddock’s report was not material to his opinion, but he reviewed the

report for consistencies or inconsistences, noting only two inconsistencies in defendant’s

statements that were not material to his findings.

Defendant argued that Dr. Longwith’s review of the report was a violation of

defendant’s Fifth Amendment privilege. The trial court rejected such a broad reading of

the law and, noting that Dr. Longwith relied only upon his own evaluation of defendant

and police reports, found that Dr. Longwith’s opinion did not rely upon anything

contained within Dr. Haddock’s competency evaluation.

5. Sanity Phase—The Prosecution’s Evidence

The prosecution called Dr. Gary Longwith who testified that he examined

defendant on December 12, 2017, to evaluate whether defendant was sane at the time he

committed the offense. Dr. Longwith initially introduced himself to defendant and

explained the reason for the examination and the limited confidentiality to be given to

defendant’s statements. Thereafter, Dr. Longwith conducted a mental status examination

that he described as an assessment of defendant’s current cognitivity, including

defendant’s awareness of his surroundings and the current date and time, and whether

defendant was under the influence of medication or drugs, suffering from any mental or

20.

physical distress, or responding to internal stimuli. Dr. Longwith described defendant’s

mental status as benign, although he seemed unusually happy. They also discussed

defendant’s mental history and medications.

Regarding the offense, Dr. Longwith noted that defendant claimed he told officers

when arrested that he was experiencing auditory hallucinations, but that it was not

reflected in the police reports. Dr. Longwith conducted several tests with defendant,

including the M-FAST that assists with determining if a defendant is malingering.

Defendant’s score of nine placed him in a category of suspicion for malingering.

Dr. Longwith also conducted a second test designed to further assess malingering, the

malingering section of the Evaluation of Competency to Stand Trial-Revised (ECST-R),

because defendant’s score of nine on the M-FAST was close to the cut off and required

additional testing. Dr. Longwith explained that an M-FAST score of over six is

considered malingering but that an expert cannot rely on that test alone.

The ECST-R test assessed points for categories including realistic presentation,

psychotic presentation, nonpsychotic presentation, impairment, and presentation style.

Defendant’s responses to the testing placed him in the suspected malingering range for

each category, as did a totaling of points for all the categories. The results of this test

caused Dr. Longwith to conclude defendant’s score on the M-FAST was accurate and

defendant was malingering.

Dr. Longwith next conducted the Wechsler Abbreviated Scale of Intelligence Test

that indicated defendant was in the low-average range but also observed that defendant

was not trying to answer the questions and could have scored higher. Dr. Longwith also

used the Montreal Cognitive Assessment, a kind of rapid screening instrument for

cognitive status, that measures attention, concentration, memory, language, orientation,

executive functions, and orientation. Defendant’s score of 19 placed him in the impaired

range, causing Dr. Longwith to believe he was deliberately not answering the questions

correctly. Dr. Longwith also conducted the Saint Louis University Mental Status

21.

Examination. Defendant’s score on this exam was so low as to indicate defendant

suffered from dementia or Alzheimer’s disease, however, as neither defendant’s medical

history nor presentation supported such a diagnosis, Dr. Longwith concluded that

defendant intentionally depressed his performance.

Based upon a reading of the police reports, defendant’s statements to

Dr. Longwith, the malingering scales, and test results, Dr. Longwith concluded that

defendant was probably sane during the commission of the crime. Dr. Longwith later

explained that when he used the term “probably,” he meant “more likely than not.” In

response to questioning by the court, Dr. Longwith clarified that he used the term “sane”

to mean that defendant appreciated the consequences of his behavior and knew the

difference between right and wrong. Dr. Longwith acknowledged defendant told him

that he experienced auditory hallucinations that caused him to commit the offense, but

Dr. Longwith discounted those statements because the testing showed that defendant was

malingering and not telling the truth.

Dr. Longwith reviewed Dr. Middleton’s report and noted similarities in the mental

history, statements of defendant, and M-FAST scores but noted that Dr. Longwith did not

agree with Dr. Middleton’s conclusion that defendant was insane at the time of the

offense.

The prosecution called an officer who apprehended defendant after the robbery.

He testified that witnesses showed him the general area where the robber had fled, and

the officer found him in that area. When ordered to stop, defendant fled. The officer’s

partner chased defendant while the officer drove his vehicle in an area to cut off

defendant’s avenue of escape. When the officer determined defendant never made it out

of the area, he joined his partner who was attempting to apprehend defendant while

defendant was trying to hide inside a drainage pipe. Defendant resisted and was subdued

when the officer grabbed him and placed him on the ground. Defendant continued to

resist arrest and the officer struck defendant in the back of the head and in the area of his

22.

nose and face. After defendant’s arrest, the officers searched defendant and his route of

flight and located a BB gun, a mask made from a shirt, socks, scattered currency, and a

motel key.

Defendant never advised the officer that he committed the robbery because he had

been hearing voices.

Detective Sporer also testified that he participated in a search of defendant’s motel

room, finding defendant’s identification and a shirt that had been cut in half, matching the

portion of the shirt defendant had used as a mask.

6. The Trial Court Rejected Defendant’s Insanity Defense

The trial court concluded that while defendant might have suffered from a

diagnosable mental illness, that mental illness did not necessarily meet the standard of

legal insanity. The court noted that Drs. Middleton and Longwith agreed on the history

and ultimate diagnosis of defendant but disagreed on whether to believe defendant’s

explanation that a voice told him to rob the bank or he and his family would be killed.

Concluding that resolution of the issue depended upon defendant’s credibility, the trial

court discounted the credibility of defendant’s expert because he failed to follow up the

M-FAST malingering test with additional testing, and failed to consider the significance

of the video and jail call evidence in which defendant never mentioned he was

hallucinating during the conversations. As both experts concluded that defendant knew

his conduct was illegal, attempted to disguise himself during the crime, and fled after, the

trial court concluded that defendant understood the difference between right and wrong

and was, therefore, sane during the commission of the crime.

B. Legal Principles and Standard of Review

The Fifth Amendment privilege against self-incrimination is generally applicable

to custodial mental competency examinations. (Estelle v. Smith (1981) 451 U.S. 454,

468.) To compel a defendant to submit to a competency examination, the examination

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must be conditioned upon only using the statements and examination results for a

competency determination. (Ibid.) Defendants who are examined pursuant to

section 1368 for a competency determination receive judicial immunity for their

statements that is implied from the statute to protect their Fifth Amendment privilege.

(People v. Arcega (1982) 32 Cal.3d 504, 520 [confirming judicial immunity against use,

in prosecution’s case-in-chief, of accused’s compelled statements to court-ordered

competency examiners through testimony of competency examiner]; Tarantino v.

Superior Court (1975) 48 Cal.App.3d 465, 469 [in reviewing contempt order as to

defendant who refused to participate in competency examination, recognizing that rule of

immunity for competency examinations is necessary to ensure that an accused is not

convicted using his own statements made at a court-compelled examination and will

necessitate different psychiatrists be appointed for addressing insanity defense].) The

scope of the privilege against self-incrimination requires that neither statements so

compelled, nor any information directly or indirectly derived from such statements, may

be used against the defendant. (Kastigar v. United States (1972) 406 U.S. 441, 453

(Kastigar) [in the context of the federal immunity statute, describing use and derivative

use immunity as coextensive with the scope of the privilege against self-incrimination,

and therefore sufficient to compel testimony over a claim of the privilege].)

Once the defendant establishes that his statements have been compelled, the

prosecuting authorities “ ‘ “have the burden of showing that their evidence is not

tainted.” ’ ” (People v. Singleton (2010) 182 Cal.App.4th 1, 12–13 (Singleton) [analyzing

use of the defendant police officer’s statements compelled during administrative

investigation during criminal trial], citing Kastigar, supra, 406 U.S. at p. 460.) The

prosecution must establish by a preponderance of evidence that the evidence it proposes

to use is derived from a legitimate source wholly independent of the compelled

testimony. (Singleton, at pp. 12–13.)

24.

“Provided that the trial court has applied correct legal principles, we review a

finding that the prosecution has carried its burden for the existence of substantial

evidence. (See U.S. v. Koon (9th Cir. 1994) 34 F.3d 1416, 1433, rvd. in part on another

ground sub. nom. Koon v. United States (1996) 518 U.S. 81, 100 [findings reviewed for

clear error]; U.S. v. Gallo (2d Cir. 1988) 859 F.2d 1078, 1091 [same]; People v. Jackson

(1992) 10 Cal.App.4th 13, 22 [‘[T]here is no practical difference between the federal

“clearly erroneous” test and a substantial evidence standard of review.’].)” (Singleton,

supra, 182 Cal.App.4th at pp. 13–14.)

C. Dr. Longwith Did Not Use Defendant’s Immunized Competency

Statements

Relying on In Re Hernandez (2006) 143 Cal.App.4th 459 (Hernandez), defendant

argues that Dr. Longwith’s testimony was inadmissible because he considered

Dr. Haddock’s report on defendant’s competency during preparation of his report

regarding defendant’s sanity. For the reasons set forth below, we disagree. For accuracy,

we define the fruit of defendant’s statements during the competency evaluation as the

competency expert’s impressions and testing results—information contained within the

report but not the report itself. (See id., at p. 477.) This defines the operative analysis as

whether the prosecution’s sanity expert used defendant’s statements to the competency

expert or the competency’s expert impressions and testing results as a basis for his

opinion when testifying, not whether the sanity expert reviewed the competency report.

We note that a mere review of defendant’s compelled statements is not a “use” of them

that violates the Fifth Amendment.6

6 We disagree with Hernandez to the extent it concludes that the expert’s review of the

competency evaluations, as opposed to use of them in forming an opinion as to sanity, is an

impermissible use of the fruits of defendant’s competency evaluation for the reasons we discuss.

(See Hernandez, supra, 143 Cal.App.4th at p. 477.)

25.

The Fifth Amendment is only violated when there is a use of the immunized

statements, or evidence derived therefrom, in the sanity phase. “[T]he Fifth Amendment

does not directly prohibit the government from eliciting self-incriminating disclosures

despite the declarant’s invocation of the Fifth Amendment privilege. Absent a valid

waiver of Fifth Amendment rights, this constitutional provision simply bars the direct or

derivative use of such officially compelled disclosures to convict or criminally punish the

person from whom they were obtained.” (Maldonado v. Superior Court (2012)

53 Cal.4th 1112, 1127 [reviewing the Fifth Amendment implications of pretrial discovery

where the defendant’s mental state to be an issue at trial].)

Dr. Longwith’s review of defendant’s compelled statements during the

competency proceeding, by itself, does not require exclusion of his testimony. “ ‘[A]

witness’s exposure to immunized testimony does not constitute “an incurable disease .…

[T]he defendant[’s] Fifth Amendment rights are not infringed if a witness hears

immunized testimony and yet testifies solely to facts personally known to the

witness.” ’ ” (Singleton, supra, 182 Cal.App.4th at p. 14.) Ensuring the witness’s

knowledge is based on personal knowledge meets the Kastigar requirement that

compelled statements not be used against the defendant. (Ibid., citing People v. Gwillim

(1990) 223 Cal.App.3d 1254, 1272; U.S. v. Koon, supra, 34 F.3d at pp. 1432–1433.)

Our analysis begins with an examination of whether the prosecution’s expert used

defendant’s statements, made during the competency examination, as a basis for his

testimony. (See Singleton, supra, 182 Cal.App.4th at pp. 13–15.) In Singleton, an expert

testified at trial regarding his opinion as to whether the defendant (a police officer) had

control of a suspect. The expert, however, had also previously reviewed the defendant’s

immunized statements during the administrative investigation of the defendant’s conduct.

(Id. at p. 15.) The expert testified that he was asked to view the recording of the incident,

interpret it solely based on his own experience, and provide an opinion without relying

upon the defendant’s statements. (Ibid.) During his testimony, the expert viewed the

26.

video, explained to the jury what they were seeing, and provided an opinion based upon

the video images. (Id. at p. 16.) “As the images and [the expert’s] experience are

independent of the compelled statement, they satisfy the requirements enunciated in

Kastigar and its progeny. We have carefully reviewed the video recording and [the

expert’s] testimony addressing it, and we discern nothing in the testimony that is not

traceable to these independent sources.” (Id. at p. 17.) Rather than just relying upon the

witnesses’ assurances, the independence of the testimony was confirmed because the

expert described images from a video recording and relied on his training and experience

acquired before being exposed to the defendant’s compelled statements. (Ibid.)

Here, Dr. Longwith testified that he did not review the competency report until

after he had examined defendant and formed his own opinion on sanity. Dr. Longwith

testified that nothing in Dr. Haddock’s report affected his own opinion or findings in the

case. In formulating his opinion as to defendant’s sanity, Dr. Longwith relied only on his

personal interaction with defendant, his assessment of defendant’s mental status, findings

based upon his assessment during the examination, results of the tests he administered

during his evaluation of defendant, and police reports. According to Dr. Longwith,

Dr. Haddock’s report was not material to his opinion, but he reviewed the report for

consistencies or inconsistences, noting only two inconsistencies that were not material to

his findings.

After a careful review of the record, we find that Dr. Longwith’s testimony was

based upon the statements he obtained directly from his own evaluation of defendant, the

numerous tests he himself conducted of defendant, and his own review of police reports.

We find that Dr. Longwith had an independent basis for his opinion, based on his own

personal interaction with defendant. His sanity phase testimony described percipient

observations of defendant, five tests administered to defendant, and some of defendant’s

statements to him. He did not include Dr. Haddock’s report as a basis for his opinion.

27.

While Dr. Longwith testified at the section 402 hearing that he did not rely upon

anything in the competency evaluation report, a comparison of Dr. Haddock’s report to

both Dr. Longwith’s report and testimony confirms the independence of his opinion.

Defendant made a lengthy statement to Dr. Longwith that, while more detailed, included

the same statements defendant made to Dr. Haddock. Dr. Longwith’s report indicates

that he obtained defendant’s medical history directly from defendant, not relying upon

Dr. Haddock’s report. Dr. Longwith’s report describes the various tests he conducted.

Nothing in Dr. Longwith’s summary, finding, or diagnosis sections of his report indicate

any reliance on the competency evaluation or statements therein as a basis for his opinion

or testimony.

Defendant argues that Dr. Longwith testified he considered the report and used it

to bolster his opinion. Although Dr. Longwith reviewed the competency report, his

testimony establishes that because defendant’s statements were consistent with those

statements defendant also made to him, the contents of the report did not factor into his

opinion. We find that Dr. Longwith’s own interview of defendant is an independent

source for his opinion.

The record confirms that Dr. Longwith’s own testing of defendant was an

independent source for his testimony as well. Dr. Longwith testified as to the several

tests he conducted and his conclusion that defendant was malingering (not truthful in

describing his mental state at the time of the offense) based only upon tests Dr. Longwith

conducted. Since Dr. Haddock had concluded that defendant was not malingering during

the competency examination and conducted different tests at a different point in time, we

cannot see how Dr. Longwith could have used Dr. Haddock’s testing or mental

impressions in reaching his conclusion.

Defendant argues that our decision should be governed by Hernandez, but we find

that case distinguishable on its facts. (See Hernandez, supra, 143 Cal.App.4th 459.) In

Hernandez, the prosecution called three experts to testify at the defendant’s sanity trial.

28.

Two of the experts had either examined or treated the defendant in relation to

competency proceedings. (Id. at pp. 473–474.) The third expert was appointed to

examine the defendant regarding his insanity plea but testified that she obtained and used

“ ‘every bit of information gathered by all the other doctors’ ” and, in her testimony,

frequently referred to observations and conclusions of the competency evaluators. (Id. at

p. 474) That did not occur in this case.

We find that Dr. Longwith did not use defendant’s statements to the competency

evaluator, or the opinions and testing that resulted from the competency examination, in

formulating his opinion. Thus, Dr. Longwith’s testimony did not rely on the mental

competency evaluation, and accordingly, it was not inadmissible under the rule of

immunity. As such, the trial court did not err in in denying defendant’s motion to

exclude Dr. Longwith’s testimony.

III. The trial court erred in imposing three 5-year prior serious felony conviction

enhancements where the three felonies were not brought and tried separately.

The trial court imposed four 5-year prior serious felony conviction enhancements

based on defendant’s convictions in 1991 and 1993. One of the robbery convictions was

rendered in Kern Superior Court case No. SC046648A.7 However, three of the 1993

convictions—assault with intent to commit forcible rape, first degree robbery, and oral

copulation with a minor—were rendered in Kern Superior Court case No. SC053863A.

Defendant contends the trial court erred by imposing three prior serious felony

conviction enhancements for his convictions in Kern Superior Court case

No. SC053863A because those convictions were not the result of “charges brought and

tried separately” within the meaning of section 667, subdivision (a)(1). The People

concede the error and we agree. To satisfy the “ ‘brought and tried separately’ ”

requirement, prior proceedings must be formally distinct from filing to adjudication of

7 Defendant does not challenge this prior serious felony conviction enhancement.

29.

guilt. (In re Harris (1989) 49 Cal.3d 131, 136.) In accord with Harris, defendant’s three

convictions in Kern Superior Court case No. SC053863A were not based on charges

brought and tried separately. Consequently, the trial court erred in imposing three 5-year

enhancements based on a single conviction, and two of the enhancements must be

stricken.

IV. We remand for the trial court to consider Senate Bill No. 1393.

Senate Bill No. 1393 (2017–2018 Reg. Sess.), signed into law on September 30,

2018, amended sections 667 and 1385 to provide the trial court with discretion to strike,

in furtherance of justice, five-year enhancements imposed pursuant to section 667,

subdivision (a)(1) (Stats. 2018, ch. 1013, §§ 1, 2). The new law took effect on January 1,

2019. The law is applicable to those parties, like defendant, whose appeals were not final

on the law’s effective date. (See In re Estrada (1965) 63 Cal.2d 740, 748.)

Defendant was sentenced in this case on November 28, 2018, after Senate Bill

No. 1393 was passed but before it took effect. At sentencing, the court imposed four

5-year section 667, subdivision (a) enhancements without further comment.

Defendant contends his case should be remanded to permit the trial court to

exercise its newfound discretion and consider whether to strike the remaining prior

serious felony conviction enhancements imposed pursuant to section 667,

subdivision (a)(1). The People concede remand is necessary on this basis.

We accept the People’s concession and remand to the trial court for it to determine

whether to exercise its discretion to strike the two remaining prior serious felony

enhancements.

V. The trial court did not err in ordering defendant to pay fines, fees, and

assessments without determining his ability to pay.

As part of defendant’s sentence, the trial court ordered that defendant pay a

robbery fine in the amount of $10 (§ 1202.5), a minimum restitution fine of $300

(§ 1202.4 subd. (b)), court operations assessments totaling $120 (§ 1465.8), and court

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facilities assessments totaling $90 (Gov. Code, § 70373). Defendant argues the court

violated his due process rights by imposing these fines, fees, and assessments without

determining whether he had the ability to pay these amounts. Defendant’s due process

argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which

was decided after defendant was sentenced and while his current appeal was pending.

Dueñas held that “due process of law requires the trial court to conduct an ability to pay

hearing and ascertain a defendant’s present ability to pay before it imposes” certain fines

or fees. (Id. at p. 1164; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488–

489.) Relying on Dueñas, defendant asks this court to “order the fine under

section 1202.5, the court security fee, and the conviction assessment be stricken, and the

restitution fine stayed unless and until the trial court holds an ability to pay hearing and

concludes that [defendant] has the present ability to pay the restitution fine.” The People

agree that since the case will be remanded for resentencing on other grounds, that

defendant also be permitted to request that the trial court consider his ability to pay the

various fines, fees, and assessments—with the proviso that any challenge to punitive

fines must be evaluated under Eighth Amendment standards, rather than due process

principles.

We find defendant’s assertions unpersuasive and decline to stay or vacate the

imposed fines and fees or to remand on this basis. In Dueñas, the defendant lost her

driver’s license because she was financially unable to pay her juvenile citations.

(Dueñas, supra, 30 Cal.App.5th at p. 1161.) She continued to reoffend for driving with a

suspended license because the aggregating criminal conviction assessments and fines

prevented her from recovering her license. (Ibid.) The Dueñas court described this as

“cascading consequences” stemming from “a series of criminal proceedings driven by,

and contributing to, [the defendant’s] poverty.” (Id. at pp. 1163, 1164.) The Dueñas

court concluded the defendant faced ongoing unintended punitive consequences because

of the imposed financial obligations. (Id. at p. 1168.) Dueñas determined those

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unintended consequences were “fundamentally unfair” for an indigent defendant under

principles of due process. (Ibid.)

We decline to expand Dueñas’s holding beyond the unique facts found in that

case. Unlike the Dueñas defendant, here, defendant does not establish the violation of a

fundamental liberty interest. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1056

(Lowery).) His incarceration was not a consequence of prior criminal assessments and

fines. He was not deprived of liberty because of his indigency. Accordingly, as we

recently explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe an

Eighth Amendment analysis, as opposed to a due process analysis, is more appropriate to

determine whether restitution fines, fees, and assessments in a particular case are grossly

disproportionate and thus excessive. (Id. at pp. 1069–1072; accord, Lowery, at pp. 1056–

1057 [due process not violated when defendants are not denied access to the courts, not

prohibited from presenting a defense, not incarcerated due to an inability to pay prior

fees, fines, or assessments, do not face ongoing unintended punitive consequences, or do

not suffer a violation of a fundamental liberty interest]; People v. Son (2020)

49 Cal.App.5th 565, 599–601 (conc. & dis. opn. of Franson, J.) [no violation of

fundamental liberty interest where trial court imposed disputed fees, fines, and

assessments without first conducting an ability to pay hearing; case did not present

unique concerns addressed in Dueñas—defendant was not incarcerated because of his

indigency, but for his continuing violent criminal acts while serving a life prison term];

but see id. at pp. 577–579 (lead opn. of Smith, J.) [nonpunitive court facilities and court

operations assessments may not be imposed on a defendant who is unable to pay because

these charges are imposed on court users for use of the court, burdening their exercise of

the fundamental right of access to the criminal courts].) Under that standard, we cannot

conclude the $300 minimum restitution fine and $220 in fines, fees, and assessments

imposed in this case are grossly disproportionate to defendant’s level of culpability; thus,

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they are not excessive under the Eighth Amendment. (Aviles, at p. 1072; accord, Lowery,

at p. 1058.)

In any event, even if we agreed with Dueñas, we would still reject defendant’s

constitutional claims and find any error arising from the court’s failure to make an ability

to pay finding was harmless beyond a reasonable doubt since defendant has the ability to

pay the fine and fees imposed in this case. (Chapman v. California (1967) 386 U.S. 18,

24; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031, 1035; Aviles, supra,

39 Cal.App.5th at pp. 1075–1077.)

“ ‘ “Ability to pay does not necessarily require existing employment or cash on

hand.” [Citation.] “[I]n determining whether a defendant has the ability to pay a

restitution fine, the court is not limited to considering a defendant’s present ability but

may consider a defendant’s ability to pay in the future.” [Citation.] This include[s] the

defendant’s ability to obtain prison wages and to earn money after his release from

custody.” (Aviles, supra, 39 Cal.App.5th at p. 1076.)

We can infer from the instant record that defendant has the ability to pay the

aggregate amount of fine and fees from probable future wages, including prison wages.

(Aviles, supra, 39 Cal.App.5th at p. 1076; Lowery, supra, 43 Cal.App.5th at pp. 1060–

1061; accord, People v. Douglas (1995) 39 Cal.App.4th 1385, 1397.) The court

sentenced defendant to 50 years’ imprisonment and there is nothing in the record that

shows defendant would be unable to satisfy the fines and fees imposed by the court while

serving his prison term. While it may take defendant some time to pay the amounts

imposed in this case, that circumstance does not support his inability to make payments

on these amounts from prison wages during his prison sentence. (See, e.g., People v.

Jones, supra, 36 Cal.App.5th at p. 1035 [“Given that the restitution fine is $300 and the

assessments are $70, [the defendant] will have sufficient time to earn these amounts

during his sentence, even assuming [he] earns nothing more than the minimum”]; see also

People v. Lewis (2009) 46 Cal.4th 1255, 1321 [concluding large restitution fine which

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would be deducted from portion of any funds given to the defendant by his family was

not inappropriate]; People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [court did not

abuse its discretion in imposing maximum fine although it may be difficult for the

defendant to pay it].)

We thus conclude, based on the record before us, that defendant is able to pay the

statutory minimum restitution fine and the mandatory assessments he was ordered to pay.

He is not entitled to remand for a hearing on the subject.

VI. Defendant failed to raise the issue of mental health diversion at the trial court

level and has forfeited the issue on appeal.

On June 27, 2018, the Legislature enacted section 1001.36, which took effect

immediately. (Stats. 2018, ch. 34, §§ 24, 37.) Under this provision, certain defendants

suffering from qualifying mental disorders may be eligible for pretrial diversion

(§ 1001.36, subd. (a)), defined as “the postponement of prosecution, either temporarily or

permanently, at any point in the judicial process from the point at which the accused is

charged until adjudication, to allow the defendant to undergo mental health treatment”

(id., subd. (c)). “If the defendant has performed satisfactorily in diversion, at the end of

the period of diversion, the court shall dismiss the defendant’s criminal charges that were

the subject of the criminal proceedings at the time of the initial diversion.” (Id.,

subd. (e).) The defendant is the one who must raise the issue of diversion. (See id.,

subd. (b)(1)(A) [“Evidence of the defendant’s mental disorder shall be provided by the

defense and shall include a recent diagnosis by a qualified mental health expert”].)

Defendant contends that the case should be remanded to allow the court to conduct

a mental health diversion eligibility hearing, arguing that section 1001.36 is retroactive.

Our Supreme Court has held that defendants who were tried before the effective date of

section 1001.36 could seek pretrial diversion even after the adjudication of guilt so long

as their convictions were not yet final. (People v. Frahs (2020) 9 Cal.5th 618, 632.)

Frahs was careful to limit its analysis to the availability of section 1001.36 to these

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pipeline defendants, and to note that its holding involved a “quite different” question

from how the “statute normally will apply going forward” as to defendants who had had

the opportunity seek pretrial diversion from the very beginning. (Frahs, at p. 633.)

Defendant’s entire retroactivity argument is misplaced. The record shows that

defendant stipulated to the amended information on October 9, 2018, the court trial on

sanity concluded on October 17, 2018, and the sentencing hearing took place on

November 28, 2018. In other words, this all occurred after June 27, 2018, the effective

date of section 1001.36, which had already been in effect for almost four months before

defendant was convicted and then sentenced. Thus, the option of seeking pretrial

diversion was available to defendant. For reasons not apparent from the record, however,

he failed to avail himself of it.8

Generally, “a party may forfeit a right to present a claim of error to the appellate

court if he did not do enough to ‘prevent[]’ or ‘correct[]’ the claimed error in the trial

court.” (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) In his brief, defendant

recognizes that section 1001.36 was in effect as of June 2018 and that he was sentenced

several months after that time. Defendant’s failure to raise the issue of mental health

diversion has forfeited the issue on appeal. (See People v. Graham (2021)

64 Cal.App.5th 827, 835 [alternatively holding that defendant forfeited right to invoke

section 1001.36 by not requesting it before jury returned its verdict].)9

8 Defendant did move for the trial court to continue his sentencing hearing and refer him to

Sustained Treatment and Recovery Court (STAR). The court acknowledged receipt of the

motion and implicitly denied it when sentencing defendant. Defendant acknowledges his motion

was not a request for mental health diversion pursuant to section 1001.36, and that STAR is a

separate program.

9 The People have brought to our attention cases addressing the timeliness of a defendant’s

request for pretrial diversion. Because defendant failed to request pretrial diversion, we do not

address the issue. (See People v. Braden (2021) 63 Cal.App.5th 330, review granted July 14,

2021, S268925 [request for pretrial diversion timely if made before trial begins]; People v. Curry

(2021) 62 Cal.App.5th 314, review granted July 14, 2021, S267394 [request for pretrial diversion

timely if made prior to sentencing]; People v. Graham, supra, 64 Cal.App.5th 827, review

granted Sept. 1, 2021, S269509 [request for pretrial diversion made for first time on appeal

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In passing, defendant asks us to “exercise [our] discretion to consider the issue in

light of the fact that the statute was recent, the record shows that [defendant] is eligible

for diversion, and the issue affects [defendant]’s substantial rights.” We acknowledge

that “[a]n appellate court is generally not prohibited from reaching a question that has not

been preserved for review by a party.” (People v. Williams, supra, 17 Cal.4th at p. 161,

fn. 6.) “Whether or not it should do so is entrusted to its discretion.” (Ibid.) Given

defendant’s opportunity to raise the issue below, we decline his request.

Recognizing the flaw in his retroactivity argument, defendant urges us to

nevertheless remand his case, arguing that his counsel’s failure to seek pretrial diversion

below should not preclude remand to allow him to now seek diversion.

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

must show that his or her counsel’s performance was deficient, and that the defendant

suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016)

2 Cal.5th 181, 198 (Mickel), citing Strickland v. Washington (1984) 466 U.S. 668, 687–

692.) “To demonstrate deficient performance, defendant bears the burden of showing

that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness …

under prevailing professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice,

defendant bears the burden of showing a reasonable probability that, but for counsel’s

deficient performance, the outcome of the proceeding would have been different.”

(Mickel, at p. 198.)

“[C]ertain practical constraints make it more difficult to address ineffective

assistance claims on direct appeal rather than in the context of a habeas corpus

proceeding.” (Mickel, supra, 2 Cal.5th at p. 198.) “The record on appeal may not

explain why counsel chose to act as he or she did. Under those circumstances, a

untimely as required to be made at least before verdict but not deciding whether should also be

made before trial begins].)

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reviewing court has no basis on which to determine whether counsel had a legitimate

reason for making a particular decision, or whether counsel’s actions or failure to take

certain actions were objectively unreasonable.” (Ibid.) “Moreover, we begin with the

presumption that counsel’s actions fall within the broad range of reasonableness, and

afford ‘great deference to counsel’s tactical decisions.’ [Citation.] Accordingly, [the

California Supreme Court] ha[s] characterized defendant’s burden as ‘difficult to carry on

direct appeal,’ as a reviewing court will reverse a conviction based on ineffective

assistance of counsel on direct appeal only if there is affirmative evidence that counsel

had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.” (Ibid.)

The record before us does not reveal why defense counsel did not request a

hearing on defendant’s eligibility for mental health diversion. Absent any affirmative

evidence that there was no rational tactical purpose for counsel’s forbearance, “it would

be inappropriate for us to address defendant’s ineffectiveness claim on direct appeal.”

(Mickel, supra, 2 Cal.5th at p. 200.)

Defendant maintains that this court should entertain his ineffective assistance

claim on direct appeal where “ ‘there simply could be no satisfactory explanation’ related

to defense tactics or strategy for counsel’s failure to act.” We disagree. There could have

been legitimate reasons why defense counsel may have chosen not to pursue a mental

health diversion eligibility hearing on defendant’s behalf. For instance, counsel may

have concluded that any qualifying mental disorder did not play a significant role in the

commission of the charged offenses. Also, counsel could have discussed the matter with

defendant, but the latter refused to consent to diversion or comply with mental health

treatment. We once again emphasize that the record is silent on the matter. Having

found forfeiture, our analysis ends.

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VII. Defendant’s prior prison term enhancement for robbery must be stricken

considering Senate Bill No. 136.

Defendant argues one prior prison term enhancement, for a 1991 robbery

conviction, must be stricken based on the retroactive application of Senate Bill No. 136.

The People agree, as do we.

Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended

section 667.5, subdivision (b) to limit application of prior prison term enhancements to

only prior prison terms that were served for sexually violent offenses as defined by

Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as

amended by Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases

not yet final on Senate Bill No. 136’s effective date. (People v. Lopez (2019)

42 Cal.App.5th 337, 341–342, citing In re Estrada, supra, 63 Cal.2d 740 at p. 746.)

Here, the trial court imposed two 1-year section 667.5, subdivision (b) prior prison

term enhancements for (1) a prison term served for first degree robbery (§ 212.5,

subd. (b)) (1991 conviction) and (2) a prison term served for assault with intent to

commit rape (§§ 220, 261, subd. (a)(2)), first degree robbery (§ 212.5, subd. (b)), and oral

copulation with a minor (former § 288a, subd. (c)) (1993 conviction). Only the latter

prison term was served for a sexually violent offense as defined in Welfare and

Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant’s case

was not yet final. Therefore, as the parties agree, defendant is entitled to the ameliorative

benefit of Senate Bill No. 136’s amendment to section 667.5, subdivision (b).

Defendant’s prior prison term enhancement for his 1991 robbery conviction must

therefore be stricken. His remaining prior prison term enhancement is unaffected by the

amendment to section 667.5.

DISPOSITION

The case is remanded to the trial court with directions to (1) strike two of the five-

year prior serious felony conviction enhancements based on defendant’s 1993 conviction

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(§ 667, subd. (a)(1)), (2) strike the one-year prior prison term enhancement based on

defendant’s 1991 robbery conviction (§ 667.5, subd. (b)), and (3) determine whether to

exercise its discretion to strike the two remaining five-year prior serious felony

conviction enhancements (§ 667, subd. (a)(1)). The trial court is directed to prepare and

forward to the Department of Corrections and Rehabilitation an amended abstract of

judgment reflecting the modifications. In all other respects, the judgment is affirmed.

HILL, P. J.

WE CONCUR:

DETJEN, J.

FRANSON, J.

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