Filed 8/17/20 P. v. Reyes CA2/7
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN

 THE PEOPLE,                                                     B295323

           Plaintiff and Respondent,                             (Los Angeles County
                                                                 Super. Ct. No. ZM012732)
          v.

 AURELIO REYES,

           Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert S. Harrison, Judge. Reversed with
directions.
      Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Colleen M. Tiedemann and William H.
Shin, Deputy Attorneys General, for Plaintiff and Respondent.
                         INTRODUCTION

      Aurelio Reyes appeals from the judgment extending his
commitment to a state hospital under Penal Code section 1026.5,
subdivision (b), following a court trial. Reyes, who represented himself
at the trial, contends several of the trial court’s rulings violated his due
process rights. We conclude that the trial court violated Reyes’s due
process rights by denying his requests to call witnesses and to testify
and that these errors were not harmless beyond a reasonable doubt.
Therefore, we reverse with directions for a new trial.

      FACTUAL AND PROCEDURAL BACKGROUND

       A.    The People Petition To Extend Reyes’s Commitment
       In the late 1990s Reyes was found not guilty of
manslaughter by reason of insanity, and the court committed
Reyes to a state hospital for treatment under Penal Code section
1026.1 Section 1026.5, subdivision (a)(1), provides a person
committed to a state hospital under section 1026 “may not be
kept in actual custody longer than the maximum term of
commitment,” which is defined as the “longest term of
imprisonment which could have been imposed for the offense or
offenses of which the person was convicted . . . .” However,
section 1026.5, subdivision (b), provides a court may extend the
person’s commitment for a period of two years upon the petition
of the prosecuting attorney if the person has been committed for
a felony and “by reason of a mental disease, defect, or disorder
represents a substantial danger of physical harm to others.”
(§ 1026.5, subds. (b)(1), (b)(2), (b)(8); see People v. Martinez (2016)

1     Statutory references are to the Penal Code.




                                   2
246 Cal.App.4th 1226, 1239.) The People have filed multiple
successful petitions under section 1026.5, subdivision (b), to
extend Reyes’s commitment for additional two-year terms. On
April 13, 2018 the People filed a new petition to extend Reyes’s
commitment for two years. Reyes waived his right to a jury trial.

       B.      The People Present Their Case
       On the first day of trial Reyes asked to represent himself
under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525]
(Faretta). The People did not object to the request, but asked
that, before the court granted a continuance, the court allow
them to call two witnesses, Remeishia Mims and Dr. Silvia
Torrez, that day. Reyes stated that he had asked his attorney to
request a 30-day continuance, but that the attorney refused.
Reyes also said his attorney would not call the witnesses Reyes
wanted to call. Reyes made clear, however, he was not trying to
delay the proceedings. The trial court allowed the People to call
the two witnesses they wanted to call that day, stating: “There’s
a concern that these [Faretta] motions are made for the purpose
of delay. . . . I don’t see a need to stop today’s proceedings. We
have to continue the proceedings anyway and we’re going to—and
we’ll continue for your witnesses when they’re available.”
       Before the trial court relieved him, counsel for Reyes stated
that he had received a police report that day from Patton State
Hospital where Reyes was committed and that the prosecutor
would have to give Reyes a copy of the report so Reyes would
have it to cross-examine witnesses. The trial court arranged with
the prosecutor to send a copy of the report by fax to Reyes at the
hospital.




                                 3
       Before the People called their first witness, and in response
to the trial court’s inquiry, Reyes told the court he intended to
call several witnesses, including a psychiatrist named
Dr. Panadero and a clinician named Dr. Ronowaski. Reyes also
provided the address of the prison where the two doctors worked.
When the prosecutor asked Reyes to make an offer of proof, Reyes
stated that both Dr. Panadero, who treated Reyes for six months
earlier that year (2018), and Dr. Ronowaski would testify he did
not have a mental illness.
       The People’s first witness was Mims, a psychiatric
technician at Patton State Hospital. Mims described an incident
in September 2017 where Reyes attacked another psychiatric
technician, for which the police arrested Reyes. During Mims’s
testimony the prosecutor introduced two photographs showing
the psychiatric technician’s injuries from the attack.
       The People’s second witness was Dr. Torrez, a psychologist
with the Department of Corrections and Rehabilitation who
interviewed Reyes in October 2018 for approximately two and a
half hours. Dr. Torrez opined, based on her observations during
the interview and Reyes’s documented mental health history,
Reyes had schizoaffective disorder, bipolar type, and antisocial
personality disorder. Dr. Torrez further testified that Reyes had
no insight into his mental illnesses and that Reyes denied his
illness for reasons “border[ing] on delusional,” such as believing
Patton State Hospital lied about his condition to make money.
Dr. Torrez also testified Reyes posed a “significant danger to
others.”
       The prosecutor did not finish her direct examination of
Dr. Torrez on the first day of trial, and the People called her on
the second day of trial, which occurred 12 days later. Before




                                 4
Dr. Torrez testified the second day, however, Reyes stated he had
not received a copy of a report Dr. Torrez submitted in support of
the People’s petition. The court asked Dr. Torrez to arrange to
have someone provide Reyes with a copy of the report. Reyes did
not request a continuance to review the report and proceeded to
cross-examine Dr. Torrez after the prosecutor finished her
examination.
       On the third day of trial (which was two days later), the
People called Dr. Jannavie Hickman, a clinical psychologist, and
Dr. Gordon Plotkin, an expert in psychiatry. Dr. Hickman had
six or seven therapy sessions with Reyes, beginning in September
2018. Like Dr. Torrez, Dr. Hickman opined, based on her
sessions with Reyes, that Reyes suffered from schizoaffective
disorder, bipolar type. Dr. Hickman also testified Reyes denied
having a mental illness.
       Dr. Plotkin interviewed Reyes for an hour and a half in
September 2018. As had Dr. Torrez and Dr. Hickman,
Dr. Plotkin concluded Reyes suffered from schizoaffective
disorder. Dr. Plotkin also opined Reyes had “methamphetamine
use disorder” and antisocial personality disorder. Dr. Plotkin
also stated Reyes had no insight into his mental illnesses, had no
intention of treating his mental illnesses, and posed a
“substantial danger of physical harm to others.”
       Before the end of the third day of trial, Reyes asked the
court to recall Dr. Torrez, claiming that he “did not receive her
report” and “barely had time to go over” it and that he “was not
prepared to cross-examine her.” The court said it would “take
that up at another proceeding” because trial had already gone
longer than scheduled that day. During the fourth and final day




                                5
of trial, over a month later, Reyes did not ask the court to recall
Dr. Torrez.

       C.    Reyes’s Attempts To Testify and Call Witnesses
       The People rested after Dr. Plotkin completed his
testimony on the fourth day of trial.2 Reyes and the trial court
had the following exchange:
       “The Court: It is your opportunity to call witnesses. If you
choose to testify then you have waived your right to not testify.
That means . . . the People will be able to cross-examine you fully.
       “[Reyes]: That’s fine. I will testify, Your Honor. I will
testify.
       “The Court: So then we’ll have to resume this matter.
We’re going to have to transfer you down to Los Angeles to finish
the case.
       “[Reyes]: That’s fine with me.”
       Reyes asked about the logistics for calling witnesses. The
court responded: “You did not furnish the court with the
information to issue a subpoena . . . . You didn’t give us the
correct names. That was the problem.” When Reyes said he
would “do it now,” the trial court interrupted and asked him
(again) for an offer of proof for his witnesses. Reyes stated that
Dr. Panadero would testify Reyes did not have a psychiatric
illness of any kind and that his treating psychologist




2        Dr. Plotkin testified on both the third and fourth days of
trial.




                                    6
Dr. “Lowoski”3 would testify Reyes did “not suffer from a
diagnosis of mental illness” and did “not have schizoaffective
disorder.” Reyes then made a motion to dismiss the People’s
petition and a motion to disqualify the trial judge, both of which
the court denied.
        After Reyes began arguing about the trial judge’s decision
not to disqualify himself, the court asked Reyes whether he was
“waiving” (presumably, his right to testify) and resting, to which
Reyes responded, “No.” Eventually, Reyes stated, “Your Honor,
I’ll go ahead and I’ll transfer to Los Angeles and call my
witnesses.” The trial court stated: “At this point, all of the
witnesses you have are only . . . from 2008, well before the
assault on the staff member. . . . So at this point they’re not
relevant.” When Reyes reiterated that Dr. Panadero had recently
treated him and would testify Reyes did not “suffer from
psychosis,” the trial court said, “But that is not what the treating
psychologist said. Your treating psychologist . . . testified already
that you do have a mental disorder.”4 Ignoring Reyes’s request to
testify, the trial court stated: “Okay. The court deems the
matter submitted then. There are no witnesses. The court
believes that Dr. Panadero would not testify according to the way
the witnesses testified.” Reyes stated, “I have not had a chance
to call my witnesses, Your Honor.”




3     Reyes said Dr. Lowoski (or at least the court reporter
transcribed that name), but he probably meant Dr. Ronowaski.

4     The court apparently was referring to Dr. Hickman, who
said she was Reyes’s “assigned clinical psychologist.”




                                 7
      The trial court found beyond a reasonable doubt Reyes had
a mental illness that made him a substantial danger to others.
The court extended Reyes’s commitment to July 25, 2020. Reyes
timely filed a notice of appeal.

                         DISCUSSION

      A.     The Trial Court Violated Reyes’s Due Process Rights
             by Refusing To Allow Him To Call Witnesses
      The right “to call witnesses in one’s own behalf [has] long
been recognized as essential to due process.” (Chambers v.
Mississippi (1973) 410 U.S. 284, 294 [93 S.Ct. 1038]; accord,
People v. Aguilera (2020) 50 Cal.App.5th 894, 910; see People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 367 [Sixth
Amendment right “‘to have compulsory process for obtaining
witnesses’” in a criminal trial “is applicable to the states under
the Fourteenth Amendment’s due process clause”]; People v. Love
(1977) 75 Cal.App.3d 928, 939 [“the defendant’s right to present
witnesses in his own defense is one of his most fundamental
rights”].)5 “A defendant claiming a violation of this right must


5     Although “proceedings to extend commitments
under section 1026.5 are essentially civil in nature” (People v.
Dobson (2008) 161 Cal.App.4th 1422, 1435), section 1026.5,
subdivision (b)(7), provides that the defendant in a proceeding to
extend a commitment for a defendant found not guilty by reason
of insanity “shall be entitled to the rights guaranteed under the
federal and State Constitutions for criminal proceedings.” As the
Supreme Court explained in Hudec v. Superior Court (2015)
60 Cal.4th 815, “in providing broadly that . . . the individual
would have ‘the rights guaranteed under the federal and State




                                8
establish both that he was deprived of the opportunity to present
material and favorable evidence and that the deprivation was
arbitrary or disproportionate to any legitimate purpose.”
(Bryant, Smith, and Wheeler, at p. 367; accord, Aguilera, at
p. 911.)
       The trial court violated Reyes’s due process rights by,
suddenly and without notice, refusing to permit Reyes to
subpoena and call witnesses, deeming the matter submitted, and
ruling in favor of the People. There is no question that, had
Reyes’s witnesses testified he did not have a mental illness (as
Reyes twice said they would), the testimony would have been
highly material and favorable to Reyes’s defense. (See People v.
Cunningham (2001) 25 Cal.4th 926, 998-999 [defendant has a
right “to present all relevant evidence of significant probative
value to his or her defense”]; People v. Reardon (2018) 26
Cal.App.5th 727, 737 [same]; People v. Williams (1996) 46
Cal.App.4th 1767, 1777 [“a trial court’s authority to
exclude relevant evidence must yield to a defendant’s right to
a fair trial”]; People v. Burrell-Hart (1987) 192 Cal.App.3d 593,
599 [“all of [the defendant’s] pertinent evidence should be
considered by the trier of fact”]; People v. De Larco (1983) 142
Cal.App.3d 294, 305 [“Inclusion of relevant evidence is
tantamount to a fair trial.”].)



Constitutions for criminal proceedings[ ]’ [citations], the
Legislature chose not merely to codify . . . particular rights” but
“to state a broader rule that” not guilty by reason of insanity
“commitments call for procedural protections otherwise
applicable in criminal cases.” (Id. at p. 828.) The People do not
contend the due process rights Reyes argues the trial court
violated do not apply to such proceedings.




                                  9
       The trial court’s reason for refusing to allow Reyes to
subpoena his witnesses was that the court “believed” they either
would testify similarly to the People’s witnesses or would not
testify according to Reyes’s offer of proof. The court even
responded to Reyes’s offer by stating that Dr. Hickman already
testified Reyes had a mental disorder. That was not a legitimate
ground for refusing to allow Reyes to call his witnesses. While a
trial court has “‘discretion to control the admission of evidence in
the interests of orderly procedure and the avoidance of prejudice’”
(People v. Ghobrial (2018) 5 Cal.5th 250, 283), the court cannot
exclude evidence favorable to the defendant simply because “the
prosecution’s case is strong enough” (Holmes v. South Carolina
(2006) 547 U.S. 319, 329, 331 [126 S.Ct. 1727]; see id. at p. 331
[“by evaluating the strength of only one party’s evidence, no
logical conclusion can be reached regarding the strength of
contrary evidence offered by the other side to rebut or cast
doubt”]). Doing so “violates a criminal defendant’s right to have
‘“a meaningful opportunity to present a complete defense.”’”
(Ibid.; see Crane v. Kentucky (1986) 476 U.S. 683, 690
[106 S.Ct. 2142]; People v. Ahmed (2018) 25 Cal.App.5th 136,
144.) By assuming Reyes’s witnesses would not offer testimony
favorable to his defense, the trial court effectively precluded
Reyes from presenting any defense, let alone a complete one.
(See People v. Barquera (1957) 154 Cal.App.2d 513, 517-518 [trial
court denied the defendant a fair trial by stating “‘I don’t have to
let you offer any’” evidence and repeatedly stating defendant “had
no defense”].)
       The People do not argue it was proper for the trial court to
preclude Reyes from calling any witnesses simply because the
court did not believe Reyes’s offer of proof. Instead, they argue




                                10
the testimony of the witnesses Reyes wanted to call was not
relevant because Reyes’s witnesses treated him over “a decade
before the attack on the hospital employee.” The court did say
this, but the record does not support the court’s statement or the
People’s argument.6 In his offer of proof, Reyes stated Dr.
Panadero treated him “up until about a month and a half ago.”
Nor do the People cite evidence suggesting the witnesses had not
treated Reyes since 2008.
       The People also argue Reyes did not give the trial court
sufficient information to issue subpoenas for his witnesses. The
record does not support that argument either. The trial court
asked Reyes for the names and addresses of his proposed
witnesses so the court could issue subpoenas. Reyes provided
that information. The court did not tell Reyes the information he
provided was (purportedly) insufficient until after the People
rested on the last day of trial, and there is no evidence anyone
else informed Reyes the information he provided for the
subpoenas was insufficient. There certainly was no delay on
Reyes’s part in seeking to subpoena witnesses. At the very least,
the court should have given Reyes an opportunity to provide any
additional information the court may have needed to issue the
subpoenas.




6      It appears the trial court assumed Reyes’s witnesses
treated him in 2008 because Reyes submitted medical records
from 2008 that he contended showed he did not have a mental
illness. But the witnesses Reyes sought to call were not the
authors of, or mentioned in, those records.




                                11
      B.     The Trial Court Violated Reyes’s Due Process Rights
             by Refusing To Allow Him To Testify
       “A defendant has a fundamental right to testify on his own
behalf.” (People v. Lancaster (2007) 41 Cal.4th 50, 100; see Rock
v. Arkansas (1987) 483 U.S. 44, 49 [107 S.Ct. 2704] [“it cannot be
doubted that a defendant in a criminal case has the right to take
the witness stand and to testify in his or her own defense”].) “It
is one of the rights that are ‘essential to due process of law in a
fair adversary process.’” (Rock, at p. 51; accord, People v.
Johnson (1998) 62 Cal.App.4th 608, 617.)
       Reyes unequivocally stated he wanted to testify. When the
trial court informed Reyes that if he chose to testify the People
could cross-examine him, Reyes stated: “That’s fine. I will
testify, Your Honor. I will testify.” When the trial court asked
Reyes whether he was waiving his right to testify and resting,
Reyes stated, “No.” By ignoring Reyes and deeming the matter
submitted, the trial court violated Reyes’s right to testify.
       Citing People v. Johnson (2018) 6 Cal.5th 541, the People
argue Reyes forfeited his right to testify by engaging in disorderly
and disruptive behavior. It is true the “right to testify . . . can be
forfeited by disorderly or disruptive behavior that causes the
defendant to be barred from the courtroom.” (Id. at p. 569.) For
example, in Johnson the trial court excluded the defendant from
the courtroom because of repeated disruptive behavior that
included “violently attack[ing] his attorney, in full view of the
court and the prospective jurors,” “cursing and spitting” at his
attorney, and banging and kicking on his cell door from “a lockup
adjacent to the courtroom” during hearings. (Id. at pp. 560-561.)
Nevertheless, the court initially intended to let the defendant
testify by video. However, after the trial court “repeatedly”




                                 12
informed the defendant “his testimony would proceed in a
question and answer format,” the defendant refused to comply
and stated, “I’m going to do what I think is best on my own
behalf.” (Id. at p. 570.) The trial court also allowed counsel for
the defendant to do a “dry run” outside of the presence of the jury
“to see how defendant was going to behave” during examination,
during which the defendant “offer[ed] unsupported legal
conclusions, referred to alleged facts not in evidence, and declined
to actually answer any questions . . . .” (Ibid.) Only then did the
court rule the defendant forfeited his right to testify.
       But the trial court here did not preclude Reyes from
testifying because he behaved disruptively. There is no evidence
Reyes was disruptive, and the trial court made no finding he was.
And the record shows Reyes’s conduct was not remotely similar to
the defendant’s conduct in Johnson. Reyes conducted himself in
an orderly and respectful manner throughout the trial. Reyes
argued with the trial judge’s decision not to disqualify himself
and stated he “want[ed] a new judge.” But when the trial court
indicated it was going to deem the matter submitted unless Reyes
sought to introduce evidence, Reyes moved on and said, “I’ll go
ahead and I’ll transfer to Los Angeles and call my witnesses.”
Reyes’s request for a new judge was, at worst, a minor irritation;
it certainly did not rise to the level of warranting a complete
denial of his fundamental rights to testify and call witnesses.
(See People v. Johnson, supra, 6 Cal.5th at pp. 555-556 [“What
justifies barring a defendant from the trial . . . is the defendant’s
insistence on misconduct ‘so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with
him in the courtroom.’”]; see also People v. Banks (2014) 59
Cal.4th 1113, 1180 [“‘Once lost, the right to be present can, of




                                 13
course, be reclaimed as soon as the defendant is willing to
conduct himself consistently with the decorum and respect
inherent in the concept of courts and judicial proceedings.’”],
disapproved on another ground in People v. Scott (2015) 61
Cal.4th 363, 391.)

      C.       The Trial Court’s Violations of Reyes’s Constitutional
               Rights Were Not Harmless Beyond a Reasonable
               Doubt
       The People argue that, even if the trial court violated
Reyes’s due process rights, Reyes did not suffer prejudice because
“there was overwhelming evidence that [Reyes] had no insight
into his mental illness and he posed a significant danger to other
people.” We review the trial court’s denial of a defendant’s right
to testify or call witnesses under the harmless error standard of
Chapman v. California (1967) 386 U.S. 18, 24. (See People v.
Allen (2008) 44 Cal.4th 843, 871 [applying the Chapman
standard to a violation of the defendant’s right to testify]; People
v. Gonzales (1994) 22 Cal.App.4th 1744, 1759 [applying the
Chapman standard to a “violation of the compulsory process
clause”].) “Under the Chapman harmless error standard, the
burden is on the People, not the defendant, to demonstrate that
the violation of the defendant’s federal constitutional right was
harmless beyond a reasonable doubt.” (People v. Cutting (2019)
42 Cal.App.5th 344, 349; see In re I.F. (2018) 20 Cal.App.5th 735,
781.)
       Because “issues of credibility are for the [factfinder] to
resolve . . . . ‘it is only the most extraordinary of trials in which a
denial of the defendant’s right to testify can be said to be
harmless beyond a reasonable doubt.’” (People v. Allen, supra, 44




                                  14
Cal.4th at p. 872.) Here, the People presented testimony from
several mental health professionals that Reyes suffered from
mental illness and was a substantial danger to others, and a
hospital employee testified Reyes recently attacked another
hospital employee. But even if Reyes’s testimony alone would not
have had much of an impact on the trial court’s ultimate finding
(and we cannot say Reyes’s testimony would not have had at least
some evidentiary value), the same cannot be said about the
testimony the court excluded from the witnesses Reyes intended
to call. Had a mental health professional who recently treated
Reyes testified Reyes did not have a mental illness, there would
have been conflicting testimony on the ultimate question the trial
court had to resolve—whether, “by reason of a mental disease,
defect, or disorder,” Reyes “represent[ed] a substantial danger of
physical harm to others.” (§ 1026.5, subd. (b).) The trial court
would have had to weigh the credibility of all the witnesses,
including the credibility of Reyes and his witnesses. In making
its ruling, the court said to Reyes, “The court doesn’t have any
proof on your side that you have no mental illness,” but that was
because the court did not allow Reyes to put on his side.
        The People’s argument that nothing Reyes or his witnesses
might have said or done in Reyes’s defense would have made any
difference reflects a cramped and cynical view of our
constitutional rights. (See People v. Hernandez (2009) 172
Cal.App.4th 715, 722 [the “‘right to be heard does not depend
upon an advance showing that one will surely prevail at the
hearing’”]; Fidelity Creditor Service, Inc. v. Browne (2001) 89
Cal.App.4th 195, 205 [“‘“it is no answer to say . . . due process of
law would have led to the same result”’”].) Because the trial
court did not allow Reyes to call even one of the witnesses he




                                15
anticipated (and twice represented in response to requests for an
offer of proof) would testify on highly probative issues, we cannot
say the constitutional violations here were harmless beyond a
reasonable doubt. Reyes is entitled to a retrial. (See, e.g., People
v. Force (2019) 39 Cal.App.5th 506, 521 [prosecutor’s interference
with the defendant’s right to testify and the trial court’s
erroneous exclusion of the defendant’s evidence required a
retrial]; People v. Cortes (2011) 192 Cal.App.4th 873, 912-913
[trial court’s improper exclusion of the defendant’s expert witness
testimony required a retrial].)7




7      Reyes argues the trial court erred in denying him a
continuance to allow him to review the police report of the
incident at Patton State Hospital and Dr. Torrez’s report before
cross-examining Mims and Dr. Torrez. If the prosecution elects
to call Mims and Dr. Torrez on retrial, Reyes will have an
opportunity to question them on these and any other relevant
topics.




                                16
                           DISPOSITION

      The judgment is reversed with directions for a new trial.
At the new trial, the trial court is to allow Reyes to subpoena
witnesses, call his witnesses to testify at trial, and testify in his
defense.




             SEGAL, J.



   We concur:




             PERLUSS, P. J.




             FEUER, J.




                                  17
