Filed 5/2/2019
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                        2d Crim. No. B289385
                                                (Super. Ct. No. 2014021172)
     Plaintiff and Respondent,                       (Ventura County)

v.

RUBEN MATTHEW GONZALES,

     Defendant and Appellant.



       A person charged with crime may not stand trial if he is
mentally incompetent. Once defense counsel declares a doubt as
to competence, it may not be withdrawn. The issue can only be
resolved upon a trial court finding of competence vel non.
       Ruben Matthew Gonzales appeals his conviction by jury of
first degree murder with personal use of a deadly weapon.
(Count 1; Pen. Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1).)1

        1
            All further statutory references are to the Penal Code.

      Before jury selection, appellant entered a guilty plea to four
unrelated counts in a consolidated third amended felony
information for assault with a deadly weapon (count 2; § 245,
subd. (a)(1)), assault with force likely to produce great bodily
He was sentenced to state prison for an aggregate term of 33
years and eight months to life.
       He contends that his due process rights were violated
because the trial court failed to conduct a competency hearing
after defense counsel declared a doubt as to appellant’s
competency and the proceedings were suspended pursuant to
section 1368. We conditionally reverse the judgment of
conviction and remand with directions to determine whether a
retrospective competency hearing is feasible and, if so, to conduct
a competency hearing. (People v. Ary (2011) 51 Cal.4th 510, 515,
fn. 1 (Ary); People v. Robinson (2007) 151 Cal.App.4th 606, 619
(Robinson).)
                                Facts
       On the morning of July 8, 2014, the victim, Emeterio
Gonzalez (Tio) hosted a World Cup soccer game party at his
apartment with Tracy Siquiedo (Tracy), Phillip Williams
(Phillip), and Tio’s nephew, Mario Gonzalez (Mario). Tio was 61
years old and disabled. He lived in an apartment complex for the
elderly and disabled.
       During the soccer game, Tracy and Phillip left to buy beer.
When they returned, they saw appellant in Tio’s apartment. Tio
had met appellant a couple of weeks earlier. Tio said that he was
a nice guy and “cool.”
       Appellant became angry and confrontational when Phillip
touched appellant’s backpack while cleaning. Phillip felt


injury (count 3; § 245, subd. (a)(4)), possession of a shank in jail
(count 4; § 4502, subd. (a)), and possession of alcohol in jail (count
5; § 4573.8). Appellant admitted a prior prison term
enhancement. (§ 667.5, subd. (b).)




                                  2
uncomfortable and left the apartment at 9:00 a.m. A few minutes
later, appellant told Tracy that they had to go buy Tio some food.
As Tracy prepared to leave, appellant showed her a large knife
under his shirt. Appellant went over to Tio who was lying on a
bed and appeared to hug him. Instead he fatally stabbed Tio in
the neck.
       Tracy ran outside and called 911. In a recorded call, Tracy
said she just saw a man she barely knew stab Tio with a knife.
Tracy said the man was Hispanic, 28 to 29 years old, clean-
shaven, and wearing a white T-shirt and long blue shorts.
       After the police arrived, Tracy was shown a surveillance
video and identified appellant leaving the apartment at 9:16 a.m.
Appellant had changed clothing and then wore brown khaki
pants, a dark sweatshirt, and sunglasses. Appellant used the
stairs to avoid the other surveillance cameras.
       Mario told the police that appellant was angry and
aggressive. He saw appellant go into the bathroom. Then he saw
appellant come out of the bathroom, quickly “scuffle” with Tio on
the bed, and leave the apartment, trying to conceal a six to eight-
inch knife under his clothing. Mario chased after appellant but
returned when Tio screamed, “Nephew, help me!” Tio was
holding his neck. There was blood on his collar. Mario, like
Tracy, identified appellant in a six-pack photo line-up.
       The murder weapon was never found but appellant’s white
T-shirt and blue shorts were found inside a purple bucket in Tio’s
apartment. Appellant’s blood and DNA were on the clothes. Tio’s
blood was on the side of the bucket.
              Failure to Conduct Competency Hearing
       Appellant contends the trial court erred in not conducting a
competency hearing after it suspended proceedings pursuant to




                                3
section 1368. The day of the preliminary hearing, appellant’s
trial attorney declared a doubt as to appellant’s competency
pursuant to section 1368. The trial court suspended the criminal
proceedings, appointed a doctor to examine appellant and
prepare a section 1368 report, and set the matter for a
competency hearing. The competency hearing was continued 14
times from October 16, 2014 to November 9, 2015. The
prosecution offered to stipulate to the contents of Doctor Ronald
Thurston’s report and waived jury trial. Defense counsel,
however, refused to agree and the competency hearing was
continued to November 17, 2015 for jury trial.
       On the day set for jury trial as to competency, appellant’s
trial attorney stated: “Matter comes on in a status where
criminal proceedings have been suspended after a doubt declared
pursuant to 1368. [¶] That doubt was declared by Defense
initially, and at this point in time, counsel has agreed that – with
the Court’s permission – what I would like to do is withdraw that
declaration of doubt and simply reinstate the criminal
proceedings without prejudice to that being raised at any later
date.”
       The trial court asked: “You are just withdrawing that? I
don’t need to make a finding?
        Defense counsel responded “That’s correct.” (Italics
added.)
         2




        As we explain, this was erroneous advice. Inexplicably,
      2


the prosecutor agreed. The trial court’s question shows that it, at
least, recognized that there might be a problem. This should
have been a time for pause, reflection, a recess and research.




                                 4
       After the prosecutor agreed to the procedure, the trial court
ordered that “[c]riminal proceedings are now reinstated.” The
case proceeded to preliminary hearing and then jury trial.
       Appellant correctly contends that the trial court was
without jurisdiction to proceed to trial without first finding that
appellant was competent to stand trial. (See People v.
Pennington (1967) 66 Cal.2d 508, 521.) This is so because the
trial court’s “authority is constitutionally and statutorily
restricted to holding a competency hearing before proceeding
with any other matters. When the court fails to discharge this
obligation, the resultant denial of due process is ‘so fundamental
and persuasive that [it] require[s] reversal without regard to the
facts or circumstances of the particular case. [Citations.]’
[Citations.]” (People v. Superior Court (Marks) (1991) 1 Cal.4th
56, 70.)
       Section 1368 provides in pertinent part: “If during the
pendency of an action and prior to judgment, . . . a doubt arises in
the mind of the judge as to the mental competence of the
defendant, he or she shall state that doubt in the record and
inquire of the attorney for the defendant whether, in the opinion
of the attorney, the defendant is mentally competent. . . . [¶] If
counsel informs the court that he or she believes the defendant is
or may be mentally incompetent, the court shall order that the
question of the defendant’s mental competence is to be
determined in a hearing which is held pursuant to Sections
1368.1 and 1369. . . . [¶] Except as provided in Section 1368.1,
when an order for a hearing into the present mental competence
of the defendant has been issued, all proceedings in the criminal
prosecution shall be suspended until the question of the present




                                 5
mental competence of the defendant has been determined.”
(Italics added.)
       Relying on People v. Johnson (1991) 235 Cal.App.3d 1157
(Johnson), the respondent argues that the trial court never
expressed a doubt as to appellant’s competency. In Johnson, the
trial court granted defense counsel’s section 1368 request,
suspended proceedings, and appointed two doctors to examine
defendant. (Id. at p. 1160.) After the doctors reported that
defendant was competent to stand trial, the trial court granted
counsel’s motion to withdraw the section 1368 request.
Defendant entered a change of plea and was sentenced to state
prison. (Id. at pp. 1160-1161.) On appeal, the Johnson court
rejected the argument that the trial court lacked jurisdiction to
sentence defendant. “At no time in these proceedings did the
trial court ever express doubt about defendant’s competency; nor
was there any evidence presented that defendant was
incompetent. Thus the trial court did not abuse its discretion in
granting defendant’s motion to withdraw her request for a
competency hearing. [Citation.]” (Id. at p. 1166.)
       Here, the trial court did not expressly declare a doubt about
appellant’s competency. But it impliedly did so by suspending
the criminal proceedings. When it set the matter for a section
1368 competency hearing, the prosecutor asked about a time
waiver for the preliminary hearing. The trial court responded
that no time waiver was required because “we suspended the
proceedings when a doubt was declared.”
       The initial order setting a competency hearing was followed
by 14 continuances of the hearing. This is tantamount to a
finding that the trial court declared a doubt as to appellant’s
competency. Johnson is distinguishable because, in that case,




                                 6
defense counsel never represented to the court that defendant
may be incompetent and the trial court “consistently declined to
set a formal hearing on competency until further evidence was
presented . . . .” (Johnson, supra, 235 Cal.App.3d at p. 1166.)
       In People v. Marks (1988) 45 Cal.3d 1335 (Marks) our
Supreme Court held that a competency hearing must be
conducted when the trial court relies on defense counsel’s
representation that there is a doubt as to defendant’s
competency. (Id. at p. 1344.) Respondent argues that the trial
court merely acceded to defense counsel’s request to suspend the
proceedings. But that would elevate form over substance where
the trial court orders a competency hearing, continues the
competency hearing more than ten times, and sets the
competency hearing for jury trial. Respondent’s “argument, if
followed, would require us to ‘second guess’ the trial court’s
finding that a [competency] hearing was required. Such result
would be contrary to our holding in Hale [People v. Hale (1988) 44
Cal.3d 531 (Hale)] that, once the hearing was ordered, it ha[s] to
be held. We again conclude, as we recently did in Hale, that, ‘The
sub silentio disposition of the section 1368 proceedings without a
full competency hearing rendered the subsequent trial
proceedings void because the court had been divested of
jurisdiction to proceed pending express determination of the
competency issue.’ [Citation.]” (Marks, supra, at p. 1344.)
                  Retrospective Competency Hearing
       We follow Marks and Hale. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) “[O]nce a doubt has
arisen as to the competence of the defendant to stand trial, the
trial court has no jurisdiction to proceed with the case against the
defendant without first determining his competence in a section




                                 7
1368 hearing, and the matter cannot be waived by defendant or
his counsel. [Citations.]” (Hale, supra, 44 Cal.3d at p. 541, italics
added.) This is known as Pate error (Pate v. Robinson (1966) 383
U.S. 375) and is a due process violation where the trial court
orders a competency hearing but never determines defendant’s
competency to stand trial. (See People v. Rodas (2018) 6 Cal.5th
219, 238 (Rodas).) The fair import of Hale, supra, that neither
the defendant nor his counsel may withdraw a previously
expressed doubt is clear and forms the basis of our holding: A
person charged with crime may not stand trial if he is mentally
incompetent. Once defense counsel declares a doubt as to
competence, it may not be withdrawn. The issue can only be
resolved upon a trial court finding of competence vel non.
       Remanding the case to determine whether appellant was
competent to stand trial (i.e., a retrospective competency hearing)
is appropriate “in cases involving unusual circumstances where
reliable evidence of the defendant’s mental condition at the time
of trial would be available at the hearing. [Citations.]” (Rodas,
supra, 6 Cal.5th at p. 241, citing People v. Ary (2004) 118
Cal.App.4th 1016, 1028 (Ary I); see Drope v. Missouri (1975) 420
U.S. 162, 182-183 [accepting possibility of constitutionally
adequate postappeal evaluation of defendant’s pretrial
competence]; People v. Superior Court (Marks), supra, 1 Cal.4th
at p. 67 [citing reference in Drope v. Missouri about possibility of
constitutionally adequate postappeal competency evaluation].)
       “‘Four factors are considered in assessing whether a
meaningful retrospective competency determination can be made
consistent with a defendant’s due process rights: “(1) The
passage of time, (2) the availability of contemporaneous medical
evidence, including medical records and prior competency




                                  8
determinations, (3) any statements by the defendant in the trial
record, and (4) the availability of individuals and trial witnesses,
both experts and non-experts, who were in a position to interact
with defendant before and during trial.”’ [Citation.]” (Robinson,
supra, 151 Cal.App.4th at pp. 617-618.)
       These factors weigh in favor of a retrospective competency
hearing. After Dr. Thurston examined appellant and reported
that appellant was competent to stand trial, defense counsel
withdrew the section 1368 request. Appellant later addressed
the trial court at an in-camera Marsden hearing (People v.
Marsden (1970) 2 Cal.3d 118) and, on the first day of trial,
entered a change of plea to the assault, weapon and alcohol
charges (counts 2-5). Before sentencing, the probation
department reported that appellant had accumulated 101 pages
of disciplinary reports in jail for “causing disturbances,
contraband, hoarding medicine, possession of ‘rat-lines,’
unauthorized communications, failure to obey directives,
possession of ‘pruno,’ tampering with and destruction of County
property, battery of an inmate, security tampering, disrespecting
staff, refusal to ‘lock-down,’ and deception.” Dr. Thurston’s
report, counsel’s statements, and appellant’s statements and
conduct are relevant in determining whether a retrospective
competency hearing is feasible. (See, e.g., Cal. Rules of Court,
rule 4.130, subd. (d)(2)(F); Medina v. California (1992) 505 U.S.
437, 450 [“defense counsel will often have the best-informed view
of defendant’s ability to participate in his defense”]; People v.
Lewis (2008) 43 Cal.4th 415, 525 [counsel’s declarations entitled
to some weight, though not determinative], disapproved on
another point in People v. Black (2014) 58 Cal.4th 912, 919-920;
People v. Rogers (2006) 39 Cal.4th 826, 847 [defendant’s




                                 9
demeanor, irrational behavior, and prior mental evaluations may
be circumstantial evidence of incompetence].)
       Because this appears to be a case in which a retrospective
competency hearing could be held, we remand to the trial court
with directions, as detailed in the disposition.
              Medical Examiner’s Autopsy Testimony
        Dr. Jon Smith conducted the autopsy of Tio and prepared
an autopsy report but no longer worked for the Ventura County
Medical Examiner’s Office at time of trial. Relying on
photographs, documents, and the autopsy report, Ventura County
Assistant Chief Medical Examiner Dr. Othon Mena, opined that
the manner of death was homicide and caused by a stab wound to
the neck with a knife. Appellant argues that the trial court erred
in overruling his Sanchez objection (People v. Sanchez (2016) 63
Cal.4th 665) with respect to Dr. Mena’s testimony about the
victim’s height and weight, and the depth of the knife wound, as
reported in the autopsy report. An expert witness, however, may
“rely on hearsay in forming an opinion, and may tell the jury in
general terms that he did so.” (Sanchez, at p. 685.) “[S]tatements
describing the pathologist’s anatomical and physiological
observations about the condition of the body” are not testimonial
in nature because they “merely record objective facts [and] are
less formal than statements setting forth a pathologist’s expert
conclusions.” (People v. Dungo (2012) 55 Cal.4th 608, 619
[pathologist relied on report of a nontestifying pathologist to
describe hemorrhages in the victim’s eyes and neck, and the
absence of any natural cause of death].)
       Relying on People v. Perez (2018) 4 Cal.5th 421, appellant
argues that Dr. Mena’s description of the victim’s wounds and
postmortem condition, taken directly from Dr. Smith’s autopsy




                               10
report, is case-specific testimonial hearsay and violates the
confrontation clause. The Perez court held: “While [the testifying
pathologist] relied on hearsay forming his opinion, he is
permitted to do so under Sanchez and Evidence Code section 802.
[Citation.] The jury would have thus heard [his] opinion about
the cause of death even if the trial court had denied admission of
the challenged hearsay statements. So we conclude that any
error was harmless beyond a reasonable doubt.” (Id. at p. 457.)
      Appellant argues that his right to confrontation was
violated because the prosecution told the jury that the depth of
the knife wound was strong evidence of premeditation and
deliberation. The depth of the knife wound was documented by
the autopsy photos which showed metal probes inside the wound.
But the “admission of autopsy photographs, and competent
testimony based on such photographs, does not violate the
confrontation clause.” (People v. Leon (2015) 61 Cal.4th 569, 603
(Leon); accord, People v. Garton (2018) 4 Cal.5th 485, 506
[pathologist’s testimony premised explicitly on photographs and
X-rays do not constitute hearsay].)
              Exclusion of Defense Witness Testimony
      Appellant’s claims that his due process right to present a
defense was violated because the trial court excluded the
testimony of Joseph Siquido, Tracy’s brother. At an Evidence
Code section 402 hearing, Joseph stated that Tracy had the mind
of a 10-year old child and had been in and out of the Hillmont
Psychiatric facility. Joseph “believed” that Tracy was an
alcoholic, used methamphetamine and might be bipolar or
delusional.
      The trial court found that “everything [the] witness
[Joseph] said, in my opinion, is speculation. . . . [¶] I don’t find




                                11
anything he said credible and certainly not relevant and not
admissible, because it lacks foundation of personal
knowledge. . . . [¶] That does not mean that you don’t have the
right to call a witness to question the truthfulness or veracity of
[Tracy] or provide evidence . . . concerning her credibility . . . or
her honesty as a witness.”
       It is settled that the exclusion of irrelevant evidence does
not violate the confrontation clause or impair an accused’s due
process right to present a defense. (United States v. Scheffer
(1998) 523 U.S. 303, 308; People v. Fudge (1994) 7 Cal.4th 1075,
1102-1103; People v. Jennings (1991) 53 Cal.3d 334, 372
[confrontation clause not implicated where excluded evidence has
slight relevance].) Appellant argues that the Joseph’s testimony
was relevant to show Tracy’s inability to perceive, recall, or
describe what happened. Tracy’s preliminary hearing testimony
                                                                      3



was corroborated by Mario who witnessed the stabbing, by
Tracy’s 911 call, by Tracy’s statements to the police, and by the
surveillance video of appellant leaving the apartment in disguise.
Joseph had no personal knowledge that Tracy lacked the capacity
to perceive and accurately recount what she saw on the day of the
homicide.
                               Disposition
       The judgment is conditionally reversed and remanded to
the trial court with directions to decide whether a retrospective
competency hearing should be held to determine whether
appellant was competent to stand trial in January 2018. (Ary,
supra, 51 Cal.4th at p. 515, fn. 1; People v. Lightsey (2012) 54
Cal.4th 668, 710.) “Because of the inherent difficulties in

      3
       Tracy died before trial. Her preliminary hearing
testimony was videotaped and played for the jury.




                                  12
attempting to look back to [appellant’s] past mental state
[citation], the burden of persuasion will be on the People to
convince the trial court by a preponderance of the evidence that a
retrospective competency hearing is feasible in this case.
[Citations.]” (Id. at pp. 710-711.)
       If the trial court finds that the prosecution has failed to
carry its burden of proving that a retrospective competency
hearing is feasible, a new trial shall be granted and appellant
may bring a motion to withdraw his plea on the assault, weapon,
and alcohol counts (counts 2-5). (People v. Kaplan (2007) 149
Cal.App.4th 372, 390.) If the trial court decides that a
retrospective competency hearing is feasible and should be held,
appellant has the burden of proving, by a preponderance of the
evidence, that he was mentally incompetent to stand trial in
January 2018. (§ 1369, subd. (f); Cal. Rules of Court, rule 4.130,
subd. (e)(2); Ary, supra, 51 Cal.4th at pp. 520-521.) Appellant
must show “as a result of mental disorder or developmental
disability, [he was] unable to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a
defense in a rational manner.” (§ 1367, subd. (a).)
       If appellant is found to have been competent to stand trial
in January 2018, the trial court shall reinstate the judgment.
       CERTIFIED FOR PUBLICATION.


                                     YEGAN, Acting P. J.
We concur:
             PERREN, J.


             TANGEMAN, J.




                                13
          Jeffrey G. Bennett and Ryan Wright, Judges

               Superior Court County of Ventura
                ______________________________


     Mark D. Lenenberg, under appointment by the Court of
Appeal for Defendant and Appellant.

       Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Ryan M. Smith, Deputy Attorney General, for
Plaintiff and Respondent.
