Filed 4/17/18

                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                  E065757

v.                                                 (Super.Ct.No. FMB800402)

PATRICK LOWELL JACKSON,                            OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,

Judge. Reversed.

        Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Kristine

A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       Patrick Jackson appeals his conviction and sentence for one count of lewd contact

with a minor, arguing the trial court erroneously found him competent to stand trial

before taking his guilty plea and again before sentencing him. After the trial court

acknowledged a doubt about his competency and committed him to Patton State Hospital,

numerous psychologists found him incompetent to stand trial and unlikely to be restored

to competency because he suffers from a stable developmental disability—mild mental

retardation—which limits his capacity for understanding and communication.

       However, in early 2010, hospital staff changed their minds after drilling Jackson

until he could answer simple, concrete questions about the judicial system. In February

2010, the trial court found Jackson competent based on their new report and then

accepted his guilty plea. Before he could be sentenced, though, new psychological

evaluations reported Jackson denied his guilt and did not understand he had pled guilty,

and questioned the basis of the report finding him competent. In June 2010, the trial

court found substantial evidence Jackson was incompetent.

       Over a year later, and in the face of additional evaluations finding Jackson

incompetent and unlikely to improve, the trial court again found Jackson was competent

and sentenced him to three years in state prison. This time, the court based the

competency finding on the contents of an evaluation Patton State Hospital staff had

prepared nearly nine months earlier which simply copied the analysis from its early 2010

report and failed to address any of the concerns raised thereafter.




                                             2
       On appeal, Jackson argues neither his conviction nor his sentence can stand

because neither competency finding was based on substantial evidence. We agree and

therefore reverse the judgment.1

                                             I

                              FACTUAL BACKGROUND

       This case arose out of incidents in early August 2008 between Jackson and the 13-

year-old grandson of a family friend. Jackson was swimming with the child in a pool at

the mobile home park in Yucca Valley where he lived with his elderly mother. Jackson

was giving the child a piggyback ride and asked the child to “hump his back.” The two

then went to the bathroom by the pool, and Jackson touched the victim’s penis with his

hand and said, “It’s not growing. It’s not growing.” Later in the week, Jackson touched

the victim’s penis through his clothing while they were alone in a vehicle at a shopping

center, and Jackson again mentioned the boy’s penis was not “growing.” On August 8,

2008, the victim told his grandmother, who reported the abuse to police.

       A. The Charges and First Finding of Incompetency

       The San Bernardino County District Attorney charged Jackson with two counts of

lewd acts on a child. (Pen. Code, § 288, unlabeled statutory citations refer to this code.)

On August 20, 2008, based on a request from the public defender, the court declared



       1  Jackson also appeals the court’s restitution order and argues his counsel was
ineffective. We need not reach those issues because we reverse his conviction and
sentence on the ground the competency finding was not supported.


                                             3
there was reason to doubt Jackson’s competency and suspended criminal proceedings.

(§ 1368.) The court ordered further proceedings to evaluate Jackson’s competency,

appointed Dr. Michael J. Perrotti to examine him, and set a hearing for September 17,

2008. (§ 1369, subd. (a).)

       On the date of the hearing, defense counsel informed the court Dr. Perrotti had not

yet examined Jackson and suggested substituting a June 20, 2008 competency report

prepared by Dr. William H. Jones for proceedings in the Riverside County Superior

Court. Dr. Jones found Jackson mildly mentally retarded, saying, “[i]ntellectually, he is

at the level of a very young child, comparable to that of a 5 year old.” Dr. Jones

concluded, “[b]ecause of his very limited intelligence including very limited

comprehension [Jackson] is not able to understand current proceedings and is not able to

cooperate in a rational manner. Because of the developmental nature of his problems,

treatment with antipsychotic medication is not going to help him, and his lack of mental

competence is not changeable.” Defense counsel provided the report to the court and the

prosecutor and they discussed using it in the proceedings in San Bernardino. Ultimately,

the prosecutor refused to stipulate to Dr. Jones’s report and insisted on obtaining a report

from Dr. Perrotti.

       Dr. Perrotti too found Jackson had serious cognitive deficits. “He is unable to

explain the process of a trial. He is unclear as to the roles of the principals, especially the

district attorney. He is unaware of legal entities and their meanings, such as juries.” Dr.

Perrotti did find Jackson “is able to assist in his defense,” because he is “able to


                                               4
understand the nature of the charges against him.” However, he found his cognitive

deficits rendered him “unable to weigh legal options and the best legal options for

himself. He is also unable to make prudent trial-related decisions. His thinking is

concrete and primitive.”

       Dr. Perrotti concluded Jackson is “an intellectually limited man with a limited

knowledge of the principals in the proceedings as well as the nature and process of a

trial” and therefore “not competent to participate in legal proceedings at this time.” He

recommended placing Jackson in “special instruction” to ensure “the vocabulary and

terminology is broken down into terms he can understand” using “repetitive audiovisual

video material” because Jackson “does not possess the ability to understand complex

concepts [or] retain complex bits of information.”

       Based on Dr. Perrotti’s report, the trial court found Jackson to be incompetent to

stand trial and referred him to the County Mental Health Director for a placement

recommendation. On October 22, 2008, the trial court accepted the director’s

recommendation and sent Jackson to Patton State Hospital (Patton) for 180 days. The

court ordered the director of Patton to make periodic written reports, the first due March

31, 2009.

       B. Attempts to Restore Competency at Patton State Hospital

       On March 9, 2009, Patton staff submitted a progress report. They wrote, “Since

admission to Patton State Hospital, Mr. Jackson has received treatment consisting of a

structured, supportive environment, individual therapy, medication regimen, and


                                             5
treatment activities aimed at restoring him to competency and reduction of symptoms.

Mr. Jackson’[s] initial response to treatment has been slow. His difficulties with written

language have been ameliorated with more individual attention by staff members to help

him learn verbally. Once his cognitive deficits have been ascertained and strategies to

implement learning techniques are implemented, it is hoped that his response to treatment

will optimize.” They reported Jackson’s “cognitive deficits obviously remain significant,

and will be explored by neuropsychology consultants to ascertain the best methods of

coping with them to facilitate learning of necessary court information.”

       The progress report concluded Jackson was not able to assist his attorney and did

not adequately understand legal proceedings. The problem assisting his attorney

stemmed from the fact that his “responses to questions and direction are not always

consistent and coherent; he has a difficult time organizing complex concepts and

evidences memory difficulties.” Regarding court procedures, Jackson “has not correctly

identified the four pleas available to him[,] . . . [has] not yet expressed a correct

understanding of the possible consequences of each of the pleas[,] . . . has not correctly

explained the nature of a plea bargain, and required prompting to identify the names and

roles of the major courtroom participants.” The report concluded, “it is the consensus of

the Wellness and Recovery Team that [Jackson] is not yet competent to stand trial and

should be retained for further treatment.”

       Defense counsel asked the court to order an updated progress report from Patton

because the March 2009 report did not “appropriately address[] his issue of [Jackson’s]


                                               6
developmentally disabled condition.” The trial court agreed, ordered Patton to submit a

new competency report, and set a hearing for June 24, 2009. Patton’s updated report

said, “Psychological testing results suggest that Mr. Jackson suffers from significant

intellectual deficits. He has demonstrated numerous weaknesses in comprehending and

learning information presented both verbally and visually, as his test scores fall within the

mild retardation range of adult intellectual functioning . . . He is unable to accurately

complete even simple tasks, such as reciting the alphabet or solving basic mathematic

calculations . . . He has a limited ability to memorize and recall information that is

spoken to him, though he slightly benefits from repetition of information. His abstract

reasoning is also poor, meaning that his thinking is concrete and simplistic.”

       The report also addressed whether Jackson’s disability left room for him to

become competent through treatment. The examiner concluded he “will likely have

difficulty in gaining competency to stand trial,” because his “cognitive limitations . . .

may be a result of a biologically inherited intellectual disability . . . [meaning] he will

have a limited ability to acquire and retain a factual understanding of court processes. In

addition, he will have difficulty communicating with his attorney to assist in preparing

and presenting his defense.” The report noted Patton staff had given Jackson significant

individual attention to help him overcome his cognitive deficit, to no avail. The report

concluded, “there is no substantial likelihood that Mr. Jackson will regain competency in

the foreseeable future.”




                                               7
       On July 29, defense counsel said he was not willing to stipulate to the report’s

evaluation of Jackson and requested a competency trial. The court set a trial date for

September, but later continued trial to December at defense counsel’s request.

       On September 16, 2009, the Patton staff submitted another status report, which

reached the same conclusions. The report said Jackson still could not work with his

attorney, noting he “continues to exhibit impoverished thinking and a childlike demeanor.

He seems unable to effectively weigh options in problem solving or make an

independent, well-informed decision.” The report also discussed Jackson’s continuing

inability to understand the charges and legal proceedings he faced. “Mr. Jackson has

been provided with more individual treatment sessions to increase his knowledge of court

processes. When asked even basic questions about court he is easily confused and often

replies, ‘I don’t know.’ He demonstrates significant difficultly simply repeating

information immediately after it is presented to him or remembering it over a period of

time . . . Upon extensive guidance and prompting, he is unable to identify the specific

charge against him, but he has given a basic description of the events related to the

accusation.” Though he showed “very small improvement” in understanding the roles of

court officials and his plea options, “he is unable to identify specific terms, including

public defender and district attorney. He continues to show no understanding [of] more

complex concepts such as no contest, not guilty by reason of insanity, and plea

bargaining . . . [and] has difficulty understanding different sentencing outcomes, such as




                                              8
probation, a prison term or commitment to a hospital.” The report concluded Jackson

was not yet competent to stand trial and should be retained for further treatment.

       C. Delay for Competency Proceedings in Riverside County Superior Court

       All along, Jackson was enmeshed in similar proceedings in Riverside County,

where he also faced charges of sexual misconduct. (See Jackson v. Superior Court

(2017) 4 Cal.5th 96, 102 (Jackson I).) Jackson was never found competent in the

Riverside case. (Id. at pp. 102-103.) Of most immediate relevance to this case, Jackson

was being evaluated for competency in late 2009 and early 2010, and the San Bernardino

trial court repeatedly delayed proceedings to await the outcome in Riverside.

       At a status hearing on December 4, 2009, defense counsel informed the court

Jackson would soon have competency proceedings in Riverside County and requested a

continuance. “I don’t know whether or not that will assist us in our case or not, but it is

my request to continue this matter to the week after that so we can see if anything

happens in that Riverside County case that may assist us in this case.” The prosecution

said, “I have no objection to that, your Honor. I think it would be in the best interest of

both sides to know more.” The court agreed and continued the hearing to December 18.

The parties reconvened twice more and agreed to continue the hearing because

proceedings in Riverside had been delayed.




                                              9
       Psychologist Michael E. Kania, Ph.D., examined Jackson on January 14, 2010 and

submitted a report to the Riverside County Superior Court on January 22, 2010.2 Dr.

Kania’s evaluation is consistent with the recent reports submitted in the San Bernardino

case. “Mr. Jackson appears to be functioning within the range of mild mental retardation,

which is consistent with the formal psychological testing completed by Dr. Jones in

August 2008 and with the diagnosis at Patton Hospital at the present time . . . He is

unable to name the President and he states that there are ‘thirty-one and sometimes thirty’

months in a year. He does not know how many days are in a week. He cannot complete

simple addition or subtraction problems . . . His memory for distant and recent events is

somewhat confused and simplified. Insight is absent. [¶] Diagnostically, Mr. Jackson is

suffering primarily from mild mental retardation, which is a chronic condition.”

       Regarding his understanding of the case against him, Dr. Kania wrote, “Mr.

Jackson is not clear about the present charge and only with pointed questioning is he able

to give any indication of an awareness of this charge. He cannot state if the charge is

serious or what the consequences might be. [¶] . . . [H]e is unable to define the role of his

attorney, except that his attorney ‘listens to what I got to say.’ He cannot identify his

attorney by name. He does not know the role of the district attorney or the jury. He is

able to state that the judge would determine guilt or innocence and an appropriate

       2  We grant Jackson’s request that we take judicial notice of Dr. Kania’s report
submitted to the Riverside County Superior Court (case No. INF061963), as well as our
opinion in Jackson v. Superior Court (2016) 247 Cal.App.4th 767. (Evid. Code, §§ 451,
subd. (a); 452, subd. (d).) Otherwise, we exercise our discretion and deny Jackson’s
motion.

                                             10
sentence. [¶] When asked what he might do should a witness lie in court, Mr. Jackson

states that he would ‘sit there and listen.’ It is only with prompting that he states he

would inform his attorney. He is of the opinion that only the judge can advise him to

testify in his own behalf.”

       Dr. Kania concluded “Mr. Jackson meets the legal criteria to be considered not

trial competent at the present time, as a result of his developmental disability.” Dr. Kania

also concluded “it is unlikely that he will ever be restored to competency, given that his

incompetency is the result of a longstanding and significant intellectual deficit.” Dr.

Kania noted, “This appears to be the opinion reached by Patton State Hospital staff with

regard to the present charges in San Bernardino County.”

       The Riverside trial court apparently credited Dr. Kania’s opinion, because it found

Jackson incompetent to stand trial on February 3, 2010. (Jackson v. Superior Court,

supra, 247 Cal.App.4th at p. 770 & fn. 2, affd. Jackson I, supra, 4 Cal.5th 96 [noting the

Riverside court found Jackson incompetent twice—on February 3, 2010 and again

December 7, 2011].) After waiting nearly two months to learn of this determination,

however, the parties and the San Bernardino court ignored it entirely.

       D. First Competency Finding

       Instead, the trial court found Jackson competent to stand trial exactly a week after

the Riverside trial court found him incompetent. The shift traces to a change of heart

among the staff at Patton, for the day after the Riverside court found Jackson

incompetent, the Patton medical director certified to the San Bernardino court that he had


                                              11
regained competency and submitted a report recommending Jackson “be returned to court

as competent to stand trial.” (§1372, subd. (e).) Though filed February 4, 2010, the

report is dated January 13, 2010 and it indicates Patton staff reached their conclusion

after a consultation on December 16, 2009.

       In the report, they wrote Jackson’s “treatment program consists of a structured

supportive environment, individual and group therapy, a psychotropic medication

regimen, court preparation classes, and rehabilitation therapy activities.” The report

endorsed an evaluator’s conclusions from an October 1, 2009 examination that Jackson

“‘has a poor understanding of the factual information regarding the adversarial nature of

the courtroom. . . . does not appear to have a rational appreciation of the charges against

him. . . . [but] appears to have the capacity to cooperate with his lawyer if he chooses to

do so and understands proper courtroom behavior.’” The evaluator opined “[m]entally

retarded individuals can learn information albeit at a much slower rate and depending

o[n] the level of intellectual deficits,” and recommended Jackson receive “individual

assistance to solidify his knowledge of court concepts and procedures.”

       Consistent with that recommendation, Patton staff drilled Jackson in “intense

individual and group treatment sessions to increase his knowledge of judicial terminology

and procedures.” According to the report, “when he is asked direct, open-ended

questions about his legal situation, he is prone to immediately reply, ‘I don’t know.’

However, when his legal situation is discussed in a more indirect manner (e.g., yes-no

questions, in a game scenario, or referencing a hypothetical situation), he is able to


                                             12
demonstrate basic knowledge required to assist in his defense. He is able to identify the

charge against him and give a description of the events related to the accusation . . . He is

not able to articulately describe the process of plea bargaining, but he believes it is ‘when

the court helps you to get a better charge so you go home, or not jail for a long time.’

With further explanation by the treatment team, he shows a basic understanding of the

purpose and outcome of plea bargaining . . . [H]e describes the judge’s role as ‘the boss

of the court. He says if you spend more time or less time at jail.’ He acknowledges that

the prosecutor calls witnesses to ‘talk against’ him. He is aware that ‘a witness talking

and a camera’ are forms of evidence. He is more knowledgeable about the possible

sentencing outcomes, such as possible time in prison.”

       Overall, though, the report indicates Jackson made only limited advances between

October and December 2009. Treatment group notes from that period indicate “he

attends many of his groups but does not participate. He makes comments irrelevant to

group discussion, such as complaining about the room temperature. He has also been

noted to rarely talk in group and appear as though he may not be paying attention or

learning the material. He often gives negative responses that are not objective when

contributing to group discussions. Finally, in a group with this writer he was observed to

be sleeping and making physical complaints. Despite his lack of focus in treatment, his

inappropriate behaviors and anxiety have improved. Also, with much encouragement he

is able to offer accurate responses when describing court processes.”




                                             13
       The report says the Wellness and Recovery Treatment Team met with Jackson on

December 16, 2009 to evaluate his progress. It noted the previous determination he was

not competent was based on his “very concrete and primitive thinking” and his

“intellectual limitations.” The report concludes “[d]espite cognitive weaknesses,” he has

now “demonstrated adequate though rudimentary understanding of court processes . . .

[and] is likely able to navigate the court process with increased support from his lawyer.”

The report also notes “his current intellectual ability is his baseline level of functioning

and is not likely to improve with further treatment at a mental health facility such as

[Patton].” Based on these facts, Patton staff recommended Jackson be returned to court

as competent to stand trial.

       On February 10, 2010, when the parties reconvened in the San Bernardino case,

they made no reference to the proceedings in Riverside, Dr. Kania’s evaluation, or the

trial court’s determination there that Jackson was incompetent. Instead, they simply took

up Patton’s new competency finding. The trial court said, “we are back because we do

have a certification of mental competence for Mr. Jackson.” The prosecutor said, “Your

Honor, it does seem to indicate that he is now competent, and the People would submit

on that.” Defense counsel said, “I am prepared to submit on the doctor’s

recommendations,” but noted “the doctors are indicating that they feel that his current

intellectual ability is limited, but not likely to ever improve.” The prosecutor responded,

“for the record, that was my assessment, frankly, as well. I just don’t think it rises to the




                                              14
legal level.” Based on the February 4, 2010 report, the trial court found Jackson had

become competent and reinstated criminal proceedings.

      E. Jackson’s Guilty Plea

      On February 24, 2010, Jackson entered a guilty plea to one count of violating

section 288, with a promise of probation if he were found a suitable candidate for

supervised release.

      In taking his guilty plea, the trial court engaged Jackson in the following colloquy:

      The Court:      In order to enter a plea, you have to give up certain rights.
      Defendant:      If I’m still living – I’m not living at West Valley Detention Center.
      The Court:      Okay. We’re going to figure all that out. I’m going to order you to
                      go back to Patton till we sentence, all right. . . . First thing is I’m
                      going to talk to you about the rights that you’re going to give up.
                      You do have a right to a preliminary hearing and the right to a trial
                      by jury. At both of those proceedings you would be represented by
                      an attorney, either one that you pick if you could afford it. In the
                      event you couldn’t afford an attorney, we would assign you one, an
                      attorney like Mr. George. Then it doesn’t cost you anything, okay.
                      Through Mr. George you’d be able to confront and cross-examin[e]
                      witnesses against you. He would be able to ask anybody that was
                      accusing you of anything, any questions. He would be able to
                      present evidence on your behalf. And subpoena witnesses to court.
                      And you would have the right to either testify on your own behalf if
                      you wanted to or just to remain silent. Do you give up those rights
                      so that I can enter your plea today?
      Defendant:      Yes.
      The Court:      My understanding of the agreement in your case is that you’re going
                      to be pleading guilty to a violation of Penal Code Section 288(a),
                      lewd act upon a child. That is punishable by up to a year in county
                      jail, three, six, or eight years in state prison. You’re doing that


                                              15
                     because the agreement is you’re going to be placed on probation and
                     serve 365 days in jail. . . .
       Defendant:    Yes, 365.
                     [¶] . . . [¶]
       The Court:    Did anybody promise you anything other than what’s on this form to
                     get you to plead today?
       Defendant:    No.
       The Court:    Anybody threaten you, beat you up, use any violence against you to
                     get you to plead today?
       Defendant:    No.
       The Court:    Okay. Are you under the influence of any alcohol, any drugs, any
                     medications you’re taking that you think affect your ability to
                     understand what is happening?
       Defendant:    A lot of medicine has.
       The Court:    I’m sorry, what?
       Defendant:    A lot of medicine has.
       The Court:    Okay. Do you feel like you understand what’s going on today?
       Defendant:    Yeah.
       The Court:    Okay. Do you feel like you’ve had enough time to talk to Mr.
                     George about your case so that you know what you want to do?
       Defendant:    Yeah.

       Based on these responses, the trial court found Jackson understood the plea form,

the nature of the charge, the consequences of punishment, and his constitutional rights, as

well as that he knowingly, intelligently, freely, and voluntarily waived his constitutional

rights. The court then asked Jackson for his plea, and Jackson pled guilty. The court

accepted the plea and found Jackson entered his plea freely, voluntarily, knowingly, and

intelligently, and found there was a factual basis for the guilty plea.


                                              16
       Finally, the court ordered the preparation of a psychological report evaluating the

suitability of suspending Jackson’s sentence despite his conviction for committing a lewd

and lascivious act on a child under 14 years old (section 288.1 report).3 The court told

Jackson the acceptance of his guilty plea was “contingent upon the Court . . . refer[ring]

your case for a report about you. And as long as there is a favorable report about you,

then the Court will go along with that agreement. If the report is not favorable that you

would be a suitable candidate that would be good for you to be on probation then I’ll let

you withdraw this plea, meaning we will take all this back if you don’t have a good

report, all right. If you do have a good report then the Court will put you on probation.

You don’t have to go to prison then.”

       F. Reports on the Suitability of Supervised Release

       Jackson did not receive encouraging section 288.1 reports. One report found

Jackson not suitable for parole. Another report found him suitable with supervision, but

questioned his competence as well as Patton’s approach to “restoring” competency. Both

reports said Jackson denied his guilt.

       Psychologist Jody A. Ward, Ph.D., emphasized Jackson’s “complete lack of

insight into his behavior.” She wrote she asked him to share his side of the story about

       3  Section 288.1 provides, “Any person convicted of committing any lewd or
lascivious act including any of the acts constituting other crimes provided for in Part 1 of
this code upon or with the body, or any part or member thereof, of a child under the age
of 14 years shall not have his or her sentence suspended until the court obtains a report
from a reputable psychiatrist, from a reputable psychologist who meets the standards set
forth in Section 1027, as to the mental condition of that person.”


                                             17
the accusations against him, and he responded “he never touched the boy.” She “asked

about riding the boy piggy back on his back and he would not answer. He was asked

about the statements that he made to the boy about ‘it’s not growing.’ He said, ‘Eeeww!

You’re gross. I didn’t say it.’ He said he never knew this boy and did not know why he

was being accused of this. He said the boy was not a boy and was 16 years old. The

defendant stated that he was not guilty, and he did not plead guilty to this case the last

time he was in court. He said, ‘I didn’t say nothing. I want to go home. I’m so upset

right now.’” Dr. Ward indicated his lack of insight and the fact that he had acted in a

sexually aggressive fashion on occasion at Patton made it likely he would re-offend. She

concluded Jackson was not a good candidate for supervised release.

       In a later report, Dr. Kania, who had evaluated Jackson for competency in the

Riverside case, concluded Jackson’s mother could supervise him and he was unlikely to

re-offend. However, Dr. Kania raised significant problems with the finding that Jackson

was competent in the first place. Dr. Kania wrote, “He appears to not understand that he

has, in fact, pled guilty and he asks the examiner ‘What do you mean, guilty? What does

that mean?’ With regard to the present charge, he states ‘I didn’t do it.’” Asked about

the accusations against him, Jackson responded only, “That’s nasty.” Dr. Kania wrote,

“Although you did not ask that I evaluate Mr. Jackson’s trial competency, it became very

clear during the course of the evaluation that he is, in my opinion, not trial competent.

He seems to indicate a lack of understanding of the fact that he has pled guilty and the

consequences of this plea.”


                                             18
       Dr. Kania took issue with Patton’s treatment plan for Jackson and its finding that

he was competent. “At one point, the Hospital indicates that he is not likely to regain his

competency as a result of his mild mental retardation and communication problems, but

six months later the Hospital [finds] that he has, in fact, regained his competency, even

though there had been no change in the aforementioned conditions. I also note that

Patton gave Mr. Jackson a GAF [Global Assessment of Functioning score] of 35 [out of

100], suggesting an impairment in reality testing or communication (i.e., speech at times

is illogical, obscure or irrelevant) or major impairment in several areas such as work or

school, family relations, judgment, thinking, or mood. All of this would seem to

significantly impair one’s trial competency. Additionally, even though Patton opined that

Mr. Jackson was trial competent, they also noted that he requires assistance to effectively

weigh options and problem-solving and make well-informed decisions, that he responds

to simplistic and concrete communication that is repeated to him numerous times. This

would certainly suggest that he is not trial competent, and it is only when information is

repeated ‘numerous times’ that he might be expected to learn this material. Whether he

could understand it is another question.”

       G. A Second Round of Competency Proceedings

       On June 28, 2010, the trial court held a status hearing and the court raised Dr.

Kania’s opinion that Jackson was not competent. The court concluded there was

substantial evidence he was not competent, and again suspended criminal proceedings.

The court also indicated it was concerned about Jackson’s status in competency


                                            19
proceedings in the Riverside case and referred the matter out for another competency

report.

          On July 28, 2010, the court received the new evaluation, this time from

psychologist Chuck Leeb, Ph.D. Among other things, Dr. Leeb concluded Jackson “is

not mentally competent enough to (A) understand the nature of the criminal proceedings

which (B) makes him unable to assist counsel in a rational manner. [¶] . . . Mr. Jackson’s

incompetence is caused by a developmental disorder. By Patton’s own testing, Mr.

Jackson’s IQ is 53. This places him in the extremely low range of intellectual

functioning and in the bottom 1% of the population.”

          Dr. Leeb also concluded no intervention would make Jackson competent to stand

trial. He concluded, “[t]here are no effective treatments. Mr. Jackson can never have his

competency restored as he has never been competent to begin with. There is no way

possible to restore something that one never had. [¶] Mr. Jackson’s condition is

permanent and stable . . . He will never be competent.”

          At a status hearing on July 11, 2010, the trial court asked the parties how they

wanted to proceed. Defense counsel said Jackson was willing to stipulate to the report.

However, the prosecutor refused and requested a competency trial. The court set a trial

date for September 13, 2010.

          However, before trial and with the consent of defense counsel and the prosecutor,

the court referred Jackson to the Inland Regional Center (IRC) under section 1369,

subdivision (a), which provides, “[i]f it is suspected the defendant is developmentally


                                               20
disabled, the court shall appoint the director of the regional center for the

developmentally disabled . . . to examine the defendant.”

       The referral to IRC ended up delaying the competency proceedings considerably.

The court was forced to continue numerous scheduled hearings because of problems

obtaining reports from the IRC. Ultimately, a psychological assessment from IRC

determined Jackson did not qualify for services because, though he scored within the

range of mental retardation, there was no evidence he had similarly low scores before age

18, a statutory prerequisite to obtaining services.

       H. Racing the Clock on the Maximum 3-Year Term of Commitment

       Finally, at a hearing on June 13, 2011, defense counsel argued Jackson had

completed serving the maximum three-year term of commitment available under Penal

Code section 1370, subdivision (c). The prosecution argued Jackson had been committed

to Patton as incompetent for only 26 months because his commitment did not begin

immediately on his arrest and he was declared competent for a period of a few months.

The trial court agreed with defense counsel, but referred Jackson to be evaluated for a

Murphy Conservatorship (Welf. & Inst. Code, § 5008, subd. (h)(1)(B)) on the ground he

remained a danger to others.

       On July 11, 2011, the court found Jackson did not qualify for a Murphy

Conservatorship. But the court also reconsidered its determination Jackson already had

completed the full three-year commitment. Relying on this court’s recent decision in

People v. Reynolds (2011) 196 Cal.App.4th 801, the court found the three-year limitation


                                              21
on such commitments began running on the date of his transfer to Patton, January 2,

2009, could not be reduced by pre-commitment custody credits, and would therefore end

on January 2, 2012. At defense counsel’s request, the court then set a competency trial

date for August 29, 2011.

          On that day, the parties returned to court and stipulated Jackson had been restored

to competency. They did so based on a Patton certification and report finding him

competent from December 2, 2010—nearly nine months before the hearing.4 The

December report reached the same conclusion as the earlier report submitted February 4,

2010 and supported its conclusion with evidence copied nearly entirely from the earlier

report.

          The new report duplicates almost verbatim the February 4, 2010 discussion of

Jackson’s knowledge and understanding of the charges and legal proceedings. It even

repeats the exact same quotations attributed to Jackson, which purported to demonstrate

he had gained understanding despite his documented intellectual limitations.

          So, the report repeats:

           “[W]hen he is asked direct, open-ended questions about his legal situation, he
            is prone to immediately reply, ‘I don’t know.’”

           He believes plea bargaining is “‘when the court helps you to get a better charge
            so you go home, or not jail for a long time.’”


          4
         Patton had submitted another, nearly identical report on November 4, 2010. We
find no explanation in the record for why the parties and the court did not take these
reports under consideration until August 29, 2011.


                                               22
        He describes the judge’s role as “‘the boss of the court. He says if you spend
         more time or less time at jail.’”

        He says the prosecutor calls witnesses to “‘talk against’ him.”

        He is aware that “‘a witness talking and a camera’ are forms of evidence.”

These are the only pieces of evidence the report provides as support for its conclusion.

The new report also repeats verbatim the earlier report’s conclusion Jackson “is more

knowledgeable about the possible sentencing outcomes, such as possible time in prison.”

       Like the earlier report, the new report said the Wellness and Recovery Treatment

Team met with Jackson to evaluate his progress. Like the earlier report, it noted the

previous determination Jackson was not competent was based on his “very concrete and

primitive thinking” and his “intellectual limitations.” And like the earlier report, the new

report concludes “[d]espite cognitive weaknesses,” Jackson has “demonstrated adequate

though rudimentary understanding of court processes . . . [and] is likely able to navigate

the court process with increased support from his lawyer,” but notes “his current

intellectual ability is his baseline level of functioning and is not likely to improve with

further treatment at a mental health facility such as [Patton].” Based on these

assertions—all copied from a report prepared 11 months earlier—Patton staff

recommended Jackson be returned to court as competent to stand trial.

       The December 2010 report did not address the fact that every other evaluation of

Jackson found him to be incompetent. It did not address objections to the earlier report

by Dr. Kania and Dr. Ward. Nor did it acknowledge Jackson had been found




                                              23
incompetent in the Riverside trial court. The report simply duplicated its prior evidence,

analysis, and conclusion.

       Despite these deficiencies, the parties stipulated to the report’s conclusion Jackson

was competent. The court indicated it had read the December 2010 report, accepted the

parties’ stipulation, and found Jackson to be competent. “[T]he Court finds that the

defendant is presently able to stand trial and that he is able to understand the nature of the

cause and purpose of the proceedings, able to assist Counsel in his defense in a rational

matter [sic]. Criminal proceedings are resumed.” The court delayed sentencing,

however, because the probation department did not accept the plea bargain’s

recommended sentence of 365 days in county jail and probation conditioned on a

favorable section 288.1 report. Instead, they recommended Jackson be sentenced to six

years in state prison.

       At the sentencing hearing on September 9, 2011, the court told Jackson the section

288.1 reports were not favorable and the court would not follow the plea bargain. The

court indicated it “would be okay with” a mitigated term as an alternative, “given what I

know about the facts of the case and the significant mental issues with the case.” The

court said, “Mr. Jackson, you did have a plea agreement in this case that called for

probation. It was contingent upon the 288.1 reports being favorable to you. [¶] As I

interpret those, I don’t necessarily see those as favorable for you. So you do have a right

to withdraw your plea entirely and start over again if you want to. Or, the other option is

that I can go ahead and sentence you to the mitigated term of three years. [¶] . . . So do


                                             24
you want to go ahead and do that?” Jackson responded, “Yes,” and the court imposed a

three-year term in state prison, followed by a three or four year term of parole. Because

Jackson had already served more than three years in custody, the court ordered his release

and ordered him to report to parole, though with the understanding he may face a warrant

in the Riverside case.

       On December 9, 2016, Jackson filed an amended notice of appeal, seeking a

certificate of probable cause to challenge his competency to plead guilty, which the trial

court granted the same day.

                                             II

                                      DISCUSSION

       Jackson challenges the trial court’s orders finding him competent to stand trial.

On February 10, 2010, the trial court found Jackson competent based on the contents of a

psychological evaluation dated January 13, 2010 and filed February 4, 2010. After

making the competency finding, the court accepted Jackson’s guilty plea. On August 29,

2011, after having suspended criminal proceedings again, the trial court determined

Jackson was competent based on the contents of a psychological evaluation dated

December 2, 2010. Jackson argues neither his conviction nor his sentence can stand

because neither competency determination was based on substantial evidence. We agree.

       The due process clause of the Fourteenth Amendment to the United States

Constitution and state statutory law prohibit the state from trying or sentencing a criminal

defendant who is mentally incompetent. (§ 1367 [“A person cannot be tried or adjudged


                                            25
to punishment or have his or her probation, mandatory supervision, postrelease

community supervision, or parole revoked while that person is mentally incompetent”];

Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966) 383 U.S. 375, 384-

386; People v. Ramos (2004) 34 Cal.4th 494, 507.) “A defendant is incompetent to stand

trial if he or she lacks a ‘“sufficient present ability to consult with his [or her] lawyer with

a reasonable degree of rational understanding—and . . . a rational as well as a factual

understanding of the proceedings against him.”’” (People v. Rogers (2006) 39 Cal.4th

826, 846-847.)

       “Both federal due process and state law require a trial judge to suspend trial

proceedings and conduct a competency hearing whenever the court is presented with

substantial evidence of incompetence, that is, evidence that raises a reasonable or bona

fide doubt concerning the defendant’s competence to stand trial. [Citations.] The court’s

duty to conduct a competency hearing may arise at any time prior to judgment.” (People

v. Rogers, supra, 39 Cal.4th at p. 847; see also § 1368.)

       Once a defendant’s competence has been called into question, “[t]he court shall

appoint a psychiatrist or licensed psychologist . . . to examine the defendant,” who “shall

evaluate the nature of the defendant’s mental disorder, if any, the defendant’s ability or

inability to understand the nature of the criminal proceedings or assist counsel in the

conduct of a defense in a rational manner as a result of a mental disorder.” (§ 1369, subd.

(a).) “If it is suspected the defendant is developmentally disabled, the court shall appoint

the director of the regional center for the developmentally disabled . . . to examine the


                                              26
defendant. The court may order the developmentally disabled defendant to be confined

for examination in a residential facility or state hospital.” (Ibid.) “The regional center

director shall recommend to the court a suitable residential facility or state hospital. Prior

to issuing an order pursuant to this section, the court shall consider the recommendation

of the regional center director. While the person is confined pursuant to order of the

court under this section, he or she shall be provided with necessary care and treatment.”

(Ibid.)

          Someone found to be incompetent may be involuntarily committed to determine if

they are likely to regain competence. (§ 1370, subd. (a)(1)(B).) However, as our

Supreme Court recently recognized in the case against Jackson in Riverside, “the

duration of commitment may not exceed ‘“the reasonable period of time necessary to

determine whether there is a substantial probability [they] will attain that capacity in the

foreseeable future.”’” (Jackson I, supra, 4 Cal.5th at p. 100.) The Legislature enforced

that restriction by setting the maximum period of commitment at three years. (§ 1370,

subd. (c); Jackson I, at p. 100.) “If at that point the defendant does not regain

competence and is shown to be ‘gravely disabled’ within the meaning of the Landerman-

Petris-Short Act [citation], then the court must order conservatorship proceedings . . . .

[Citation.] Otherwise, the defendant is released.” (Jackson I, at p. 100.)

          Ultimately, the question of the defendant’s competency shall be decided at a trial

“by court or jury” and if by jury, it must be decided by unanimous verdict. (§ 1369,

subds. (a) & (f).) The factfinder must presume “the defendant is mentally competent


                                               27
unless it is proved by a preponderance of the evidence that the defendant is mentally

incompetent.” (§ 1369, subd. (f); see also People v. Rells (2000) 22 Cal.4th 860, 867.)

We review the trial court’s findings that Jackson was competent to stand trial for support

by substantial evidence in the record—that is, for evidence that is reasonable, credible,

and of solid value. (People v. Marshall (1997) 15 Cal.4th 1, 31.)

       Here, substantial evidence does not support the trial court’s findings Jackson was

competent to plead guilty or to accept his sentence. We begin with the court’s finding

Jackson was competent at the time of his sentencing. We conclude, for several reasons,

the basis for that ruling was essentially nil.

       First, the hearing occurred on August 29, 2011 but staff at Patton prepared the

supporting psychological evaluation nearly nine months earlier, on December 2, 2010.

Every single evaluation of Jackson in this case concluded he was mildly mentally

retarded, had extremely limited intellectual abilities, and had great difficulty grasping and

retaining the legal concepts necessary for him to understand his legal circumstances and

assist his attorney in his defense. Even the two reports in which Patton staff found

Jackson had “regained” competency emphasized that he had a limited intellect, learned

legal concepts only by rote, and responded accurately only if prompted with simple,

targeted questions. For that reason, even if we were inclined to credit the December 2,

2010 report, it does not provide a sound basis for concluding Jackson retained any

understanding he may have gained when he stood before the court nine months later to

decide whether to maintain his guilty plea and accept a three-year sentence followed by a


                                                 28
period of parole. Given the unanimous opinion that Jackson had a chronic developmental

disability that limited his ability to grasp and retain information, a report finding he

understood his legal situation well enough to stand trial is not substantial evidence that he

retained that understanding nine months later. Relying on it was error.

       Second, the analysis of the December 2, 2010 report is even less relevant to the

issue of competency in August 2011, because it actually came directly out of a report

prepared 11 months previously. Recall the court found Jackson had regained competence

on February 10, 2010 based on a Patton report filed February 4, 2010. Within a few

months, however, the trial court found there was substantial evidence to conclude he was

not (or no longer) competent. The December 2, 2010 report purported to provide reasons

for finding he had since regained competence. However, the bulk of that report simply

repeated the analysis contained in the February 4, 2010 report, which was prepared 11

months earlier. Thus, the trial court’s evidentiary basis for finding Jackson competent in

August 2011 came from an analysis prepared nearly 20 months earlier. As a result,

Patton staff failed to provide the trial court with solid, reliable evidence of Jackson’s

competence as of August 2011.

       Third, setting aside the issue of delay, Patton staff also failed to provide the trial

court an evidentiary basis for finding anything had changed from when Dr. Kania (in

June) and Dr. Leeb (in July) evaluated Jackson and found he was not competent.

Patton’s December 2, 2010 report does not mention the issues raised in those

psychological evaluations, which questioned Patton’s analysis and the prior competency


                                              29
finding. The reports by Dr. Ward and Dr. Kania discussed in detail Jackson’s denials of

guilt and denials that he had pled guilty, which came only a few months after the court

took his plea. Those reports at least raise the question whether Jackson in fact understood

what had happened when he pled guilty. Patton’s new evaluation should have addressed

those concerns directly and the trial court should have demanded that Patton do so.

       Moreover, the reports by Dr. Kania and Dr. Leeb specifically opined Jackson

would never “regain” competency because his incompetency stems from chronic and

stable mental retardation. To be “of solid value” and therefore constitute substantial

evidence, any report reaching a contrary conclusion would at minimum have to address

those criticisms and explain why hospital staff had come to a different result. The trial

court, which possessed those earlier reports, could reasonably have concluded Jackson

had regained competency only if presented with a report or other evidence that rebutted

those criticisms. As the record stood on August 29, 2011, the trial court had every reason

to conclude Jackson remained incompetent, and no solid basis for concluding otherwise.

We therefore conclude it was error for the trial court to find Jackson competent in August

2011 as well as to accept his decision to maintain his guilty plea and accept a prison

sentence.

       What of the trial court’s finding Jackson had regained competency as of February

10, 2010? Did Patton’s February 4, 2010 report supply the trial court with substantial

evidence to make that finding? Our answer again is no. It was the unanimous opinion of

all the professionals who evaluated Jackson that he suffers from mild mental retardation


                                            30
which severely limits his ability to understand the charges against him, the legal

proceedings he faced, and his capacity to rationally assist his attorney. The same

professionals, including staff at Patton, concluded repeatedly—over three years—that

Jackson’s condition was chronic and would not improve with treatment. So, in June

2008, Dr. Jones wrote “[b]ecause of the developmental nature of [Jackson’s] problems

. . . his lack of mental competence is not changeable.” In June 2009, Patton staff wrote

despite giving Jackson significant individual attention Jackson remained incompetent and

“there is no substantial likelihood that Jackson will regain competency in the foreseeable

future.” In January 2010, Dr. Kania wrote, “it is unlikely that [Jackson] will ever be

restored to competency, given that his incompetency is the result of a longstanding and

significant intellectual deficit.” And in July 2010, Dr. Leeb wrote “Jackson can never

have his competency restored as he has never been competent to begin with. . . . [¶] Mr.

Jackson’s condition is permanent and stable. . . . He will never be competent.”

       Patton staff did not directly address the substance of these opinions. Instead, they

decided to put Jackson through drills aimed at teaching him the rudiments of the judicial

system. They wrote that despite his “innate, biological intellectual ability,” “he has

demonstrated adequate though rudimentary understanding of court processes.” They

noted, however, that “he requires assistance to effectively weigh options in problem

solving and make well-informed decisions. He responds best to simplistic, concrete

communication that is repeated to him numerous times.” (Italics added.) They then point

to the answers he was able to give their repeated, simplistic questions about plea


                                             31
bargains, judges, prosecutors, and evidence as evidence that he had attained competency.

We conclude the evidence that Patton staff drilled Jackson in how to answer the most

basic questions about the judicial process and he learned to parrot the expected responses

after numerous repetitions did not provide substantial evidence Jackson was competent to

stand trial. As Dr. Kania opined, the fact Jackson could respond only to “simplistic and

concrete communication that is repeated to him numerous times . . . suggest[s] that he is

not trial competent,” rather than the opposite. (Italics added.)

       The People argue we should give weight to the fact that “[d]uring the plea

colloquy, appellant responded appropriately to all of the court’s questions and never said

anything that would have caused the court to doubt [Jackson’s] competency.” We take

no comfort from the colloquy. At the plea and sentencing hearings, the trial court treated

Jackson like an ordinary defendant with a normal ability to comprehend the proceedings.

The court posed stock explanations and questions to Jackson, which largely consisted of

paragraph-long statements describing the rights Jackson would be waiving and the

contents and consequences of his plea agreement followed by questions seeking his

assent or dissent. But Jackson is not a typical criminal defendant. Every report by every

professional who evaluated him concluded he had very limited abilities to comprehend

and communicate complex information. Patton staff concluded he had an IQ of 53 and

operated in the bottom one percent of the population, and found him competent to stand

trial only on the basis of his ability to respond appropriately to repeated, simplistic

questions. Faced with such a defendant, the trial court could not reasonably rely on


                                              32
Jackson’s responses to the standard plea colloquy as confirmation of his competency.

(See United States v. Masthers (D.C. Cir. 1976) 539 F.2d 721, 728-729, overruled on

another ground by Godinez v. Moran (1993) 509 U.S. 389 [“standard . . . colloquy may

prove an inadequate measure of the validity of a plea proffered by a defendant of

questionable mental competence”].)

       An example from the colloquy at sentencing is illustrative. The court explained to

Jackson his guilty plea had been “contingent upon the 288.1 reports being favorable to

you” and told him “I don’t necessarily see those as favorable for you.” The court then

explained he had “a right to withdraw [his] plea entirely and start over again if you want

to. Or, the other option is that I can go ahead and sentence you to the mitigated term of

three years. [¶] . . . So do you want to go ahead and do that?” Jackson responded, “Yes.”

But the trial court, having commented on Jackson’s “significant mental issues,” made no

effort to explain what a section 288.1 report was, what it meant for his guilty plea to be

“contingent” on a favorable report, or what it would mean for Jackson to “withdraw [his]

plea entirely and start over again.” It is unreasonable to think the man described in the

psychological evaluations prepared in this case—a man who barely understood the

concept of a plea bargain and has the intelligence of a five year old—could understand

the complicated choice the court presented to Jackson. Thus, we conclude the trial

court’s exchanges with Jackson do nothing to prop up the court’s competency findings.

       Jackson asks us to go further and hold the trial court erred by finding him

competent without obtaining the psychological evaluations and trial court rulings in the


                                             33
Riverside case. We are not prepared to take that step. The trial court was required to

base its competency determination on substantial evidence. If the report prepared and

submitted by Patton staff had supplied substantial evidence, we would not reverse just

because compelling contrary evidence existed. (E.g., GHK Associates v. Mayer Group,

Inc. (1990) 224 Cal.App.3d 856, 872 [“In determining whether there is any substantial

evidence to sustain the judgment, the appellate court will look only at the evidence

supporting the prevailing party and will disregard the contrary showing”].)

       We recognize obtaining additional information from the Riverside proceedings

may have assisted the San Bernardino court, providing additional support for refusing to

accept the Patton competency opinions. However, the bottom line is, the record in this

case already contained so much compelling evidence of Jackson’s incompetence and the

Patton reports provided so little value, that additional information from the Riverside

proceedings would have been cumulative.

                                            III

                                     DISPOSITION

       We reverse the judgment.

       CERTIFIED FOR PUBLICATION
                                                               SLOUGH
                                                                                           J.
We concur:

McKINSTER
                Acting P. J.

MILLER
                          J.
                                            34
