       Filed: 12/3/19
                             CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SIXTH APPELLATE DISTRICT


 THE PEOPLE,                                      H045703
                                                 (Santa Clara County
        Plaintiff and Respondent                  Super. Ct. Nos. B1795335, C1779663)

        v.

 CHARLETE LEELU,

        Defendant and Appellant.



       Appellant Charlete Leelu appeals an order committing her to the Department of
State Hospitals based on a finding under Penal Code section 1368 et seq. that she was
incompetent to stand trial on criminal charges. Although Leelu has subsequently been
deemed restored to competency and has returned to the trial court for criminal
proceedings, we conclude her appeal is not moot. We further determine that any error the
trial court may have made in failing to appoint a second mental health expert to evaluate
her competency was not prejudicial in light of the overwhelming evidence that Leelu was
not competent to stand trial.
                        I. FACTS AND PROCEDURAL BACKGROUND
       The facts of Leelu’s alleged crimes are not relevant to this appeal. On December
12, 2017, Leelu was charged by complaint with misdemeanor trespass, in violation of
Penal Code section 602, subdivision (m) in docket B1795335.1 That same day, the trial
court granted Leelu’s motion to represent herself.
       On December 15, 2017, in docket C1779663, Leelu was charged by complaint
with stalking, in violation of section 646.9, subdivision (a). On December 28, 2017,
Leelu made her first appearance in the case. Leelu told the public defender and the trial
court that she wanted to represent herself. Leelu asserted to the court, “I know my rights.
I can have jury trial representing myself. [¶] . . . [¶] All psychiatry. And they arrest me
so many times in the past couple years, but now I want to be candidate of U.S. senator.
We need to change to make a difference, as Donald Trump said.” The trial court stated,
“I had some experience with Ms. Leelu [in another department]. She is scheduled to be
in my department on Tuesday for trial. Based on her behavior here, which included a
very aggressive and physical demeanor in terms of speaking to the Court and acting out
at the podium, and the way she’s addressing the Court and talking about her case, I
believe that I have a doubt, and so pursuant to [section] 1368, criminal proceedings are
suspended.” Leelu stated, “I will let all 32 million people know this judge use police to
harass me and my husband and always do things, keeping asking money from me, no jury
trial at all. And the police chief right to hire and --.”
       On January 4, 2018, the trial court suspended proceedings against Leelu in docket
B1795335 pursuant to section 1368. That same day, the trial court appointed a doctor to
conduct a competency evaluation of Leelu.2
       Dr. D. Ashley Cohen filed a report with the trial court on February 6, 2018, after
having interviewed Leelu. In the report, Dr. Cohen opined that Leelu was exhibiting
symptoms of paranoid schizophrenia and was not “able to comprehend the nature of the

       1
        Unspecified statutory references are to the Penal Code.
       2
        The trial court later added docket C1779663 to the order for a competency
evaluation. The trial court also appears to have appointed the public defender to
represent Leelu in both matters. The record does not contain a reporter’s transcript of the
January 4, 2018 hearing.
                                                   2
legal proceedings in which she is involved, and her psychiatric symptoms are present to
such an extent that they render her incapable of assisting counsel in pursuing a defense in
a rational manner.” Dr. Cohen stated, “[i]t is believed that [Leelu] has been exhibiting
these disordered behaviors and thoughts for a lengthy time, and they have gradually
grown worse, in the absence of any therapeutic intervention.”
       Dr. Cohen opined Leelu “is not rational or coherent in conversation, she cannot
express herself such that others can understand her meaning, and she misperceives, or
cannot comprehend what others are saying to her. She is confused and misinformed
about her legal case, and gets facts intertwined with her delusions.” For example, Leelu
“insists that her attorney is ‘The Senior Minister of the Interior,’ from Canada, and he
would be defending her except he lost his Canadian driver’s license, and must return
home to get a replacement.” Dr. Cohen observed Leelu “spoke in a rapid, pressured
manner. . . . Much of her speech was repetitious, involving favored paranoid themes of
individuals, government and religious organizations planning to harm her, the police
harassing her, and her ability to discern ‘hidden’ meanings and messages that escaped the
notice of everyone else. She was almost never able to speak in a manner that was
rational, coherent, or logical. For example, when asked how she remembers things that
may be important to her in the future, she replied, ‘I have a diamond ring with an iPad
inside it.’ ” Leelu “strenuously denie[d] any present or past mental health symptoms or
treatment.”
       On February 15, 2018, the parties appeared before the trial court for a
determination of competency. Leelu was apparently removed from the courtroom
following statements she made to the court and her counsel.3 The court noted that Dr.
Cohen had opined that Leelu was not competent to stand trial. The trial court stated,




       3
           These statements are not reflected in the reporter’s transcript.
                                                    3
“either side, of course, can request a second doctor or, if it’s submitted on the report of
Dr. Cohen, I can refer it to the South Bay Conditional Release Program.”
        Leelu’s attorney stated that she had advised Leelu of Dr. Cohen’s opinion which,
according to Leelu’s attorney, “prompted [Leelu] to address the Court in a loud, angry
voice, which can be described as yelling. And her discourse was not linear to the
conversation I was having or to any conversation that was happening in court. But as her
appointed attorney, I do believe I have to equate that with an objection. But I do think
the Court did see evidence before it to make a decision based on Dr. Cohen’s report. And
I can submit on the report, preserve Ms. Leelu’s objection, and waive her right to have [a]
jury trial, waive her right to confront and cross-examine her accusers, her right to present
evidence in her defense, and submit the issues of competency to the Court.”
        The prosecutor stated, “the People are also willing to submit.” The prosecutor
also asked the trial court to instruct Leelu at the next court appearance that she should not
contact one of the victims. The trial court replied that it would “make a note.” The court
said it had “no expectation that [Leelu] will listen or understand,” but it would “certainly
try.”
        The court stated “based on the submission, I’ll find—and my own observations—
I’ll find that Ms. Leelu is not competent and she lacks capacity to make independent
decisions regarding her medications.” The trial court referred the matter to the South Bay
Conditional Release Program. On March 2, 2018, the South Bay Conditional Release
Program submitted a report to the court stating, “there is significant evidence that
suggests [Leelu] is inappropriate for community outpatient treatment to reach trial
competency. Currently, Ms. Leelu is so severely decompensated that she would be
unable to function and/or cooperate with any outpatient treatment.” The report
recommended that Leelu be “committed to the Department of State Hospitals for
placement in a trial competency program.” On March 8, 2018, the trial court conducted a


                                                  4
hearing and ordered Leelu committed to the Department of State Hospitals (DSH).4
Leelu filed in both dockets a timely notice of appeal of the March 8 commitment order.
       On July 24, 2019, Leelu’s appellate counsel filed a request for judicial notice with
this court in which counsel requested we take judicial notice of records that show that
Leelu was returned to the superior court from DSH in December 2018, and proceedings
related to both cases are currently pending in the trial court.5
       Leelu argues the trial court erred in the competency hearing when it failed to
appoint a second psychiatrist or psychologist pursuant to section 1369, subdivision (a)
(hereafter section 1369(a)). Leelu acknowledges that she has completed restoration
proceedings but argues this court should not dismiss her appeal as moot for two reasons.
First, Leelu contends that her case presents a legal issue of continuing public interest,
because the lengthy timeline of an appeal makes it difficult to address any trial court error
before the end of a section 1368 commitment. In addition, Leelu argues her case is not
moot because she will not receive “good time” credits under section 4019 for time during
which she was committed to DSH, and she would have received such credits had she
been confined in the county jail. (See §§ 1375.5, 4019.) Finally, Leelu maintains she
suffered prejudice because “there is no way to be sure of the results of a second opinion,”
and one can have a mental illness and still be competent to stand trial. Leelu requests that
her case be reversed and remanded for a second evaluation to determine the accuracy of
the “initial determination” that Leelu was incompetent.
       The Attorney General contends that, because Leelu has been restored to
competency, any error the trial court may have committed in its competency
determination “has no lingering consequences.” The Attorney General does not address


       4
          On March 15, 2018, the trial court filed an order for transportation and placement
and, on March 21, 2018, an order of commitment pursuant to section 1370, subdivision
(a)(2).
        5
          We grant the request for judicial notice.
                                                  5
Leelu’s argument about custody credits. The Attorney General also argues that defense
counsel’s statement with respect to Leelu’s objection “fell short of a statement that
[Leelu] was not seeking a finding of mental incompetence” that would trigger the
appointment of a second psychologist or psychiatrist. Finally, the Attorney General
maintains that Leelu has not established prejudice under the standard set out in People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson) but provides no authority or argument why
Watson supplies the appropriate standard of prejudice.
       Leelu replies that Chapman v. California (1967) 386 U.S. 18 (Chapman) sets out
the appropriate prejudice standard because the trial court’s failure to appoint a second
evaluator violated her due process rights under the Fourteenth Amendment to the United
States Constitution. Leelu does not cite any authority for the application of the Chapman
standard to error under section 1369, subdivision (a)(1).
                                    II. DISCUSSION
       Turning first to the question of mootness, we agree that Leelu’s potential custody
credits continue to be affected by her commitment to DHS. (§ 4019; People v. Sage
(1980) 26 Cal.3d 498, 502–503 [“[S]ection 4019 . . . does not authorize credit for time in
such nonpenal institutions such as state hospitals.”]; see also People v. Waterman (1986)
42 Cal.3d 565, 571, fn. 4 [finding no equal protection violation in the denial of “the
limited work-and-conduct-credit system available to persons confined in jail prior to
trial” to an individual serving “pretrial confinement for treatment of incompetence”].)
Because Leelu’s criminal proceedings are ongoing, the trial court may impose a jail term
upon her. “ ‘A case becomes moot when a court ruling can have no practical impact or
cannot provide the parties with effective relief.’ ” (In re Stephon L. (2010) 181
Cal.App.4th 1227, 1231.) At sentencing, the court will be required to calculate her
custody credits, which will be affected by her commitment to DSH. (§§ 2900.5, 4019.)
Because our consideration of Leelu’s appeal may have a “practical impact” in her case,


                                                 6
her appeal is not moot. (See Stephon L., at p. 1231 [finding an appeal involving custody
credit not moot].)
       We now turn to the merits of Leelu’s contention that the trial court erred in failing
to appoint a second mental health evaluator. Section 1369(a) provides in relevant part “If
the defendant or the defendant’s counsel informs the court that the defendant is not
seeking a finding of mental incompetence, the court shall appoint two psychiatrists,
licensed psychologists, or a combination thereof.” (§ 1369, subd. (a)(1).) “The
appointment of two experts in such circumstances provides a minimum protection for the
defendant against being incorrectly found incompetent to stand trial.” (People v. Harris
(1993) 14 Cal.App.4th 984, 996 (Harris).)
       Leelu’s defense counsel “submit[ted] on the report” opining that Leelu was
incompetent. However, Leelu’s counsel also stated that she believed she had to “equate”
Leelu’s nonlinear statement upon being informed about the doctor’s opinion of Leelu’s
incompetence to “an objection.” Defense counsel specifically noted that she was
“preserv[ing] Ms. Leelu’s objection” to the finding in the report. Nevertheless, defense
counsel did not object when the trial court found that Leelu was not competent without
having appointed a second evaluator. The Attorney General argues “the court could
reasonably conclude that [Leelu’s] non-linear statement did not evidence a claim by
[Leelu] that she believed she was competent to stand trial.”
       Under section 1369(a), either a defendant or her or his counsel must “expressly
inform[] the court during the competency hearing that [the] defendant [is] not seeking a
finding of incompetence” to trigger the requirement that the trial court appoint a second
mental health expert. (People v. D'Arcy (2010) 48 Cal.4th 257, 281.) Although Leelu’s
counsel did not request that the trial court appoint a second expert on Leelu’s behalf,
counsel did communicate Leelu’s objection to the first evaluator’s finding that she was
incompetent. In addition to the objection communicated by defense counsel, Dr. Cohen’s
report noted that Leelu “strenuously denie[d] any present or past mental health symptoms
                                                 7
or treatment.” On this record, it is difficult to conclude that Leelu herself was “seeking a
finding of incompetence.” (Ibid.) Nevertheless, to the extent that the trial court erred in
not appointing a second mental health evaluator under section 1369(a), we conclude for
the reasons set out below that Leelu suffered no prejudice.
       The parties do not agree on the relevant standard. The Attorney General asserts,
without any citation to supporting authority, that Watson, supra, 46 Cal.2d 818 provides
the appropriate analysis. Leelu counters that the error should be reviewed under
Chapman, supra, 386 U.S. 18 because she has a due process right “to be prosecuted in
accordance with the state’s rules” and a “liberty interest against arbitrary deprivation by
the State.” Leelu cites no case holding that the federal due process clause mandates
section 1369(a)’s requirement that the trial court appoint a second mental health evaluator
if the defendant asserts she is competent.
       It is true that the statutory scheme of section 1368 et seq. “implements the due
process guarantee not to be tried while mentally incompetent.” (People v. Lightsey
(2012) 54 Cal.4th 668, 705 (Lightsey).) Furthermore, some violations of the competency
procedures, such as failing to appoint counsel for an incompetent defendant, can result in
structural error requiring reversal, even under state law. (Id. at p. 699.) However, Leelu
does not argue that the trial court’s failure to appoint a second expert constitutes
structural error, and she fails to explain why the federal due process clause mandates the
aspect of the competency procedures at issue here.
       The California Supreme Court has stated “[t]he federal Constitution requires the
states to ‘observe procedures adequate to protect a defendant’s right not to be tried or
convicted while incompetent to stand trial.’ ” (People v. Leonard (2007) 40 Cal.4th
1370, 1391.) As the trial court found Leelu to be incompetent, her right “ ‘not to be tried
or convicted while incompetent to stand trial’ ” was not threatened by the trial court’s
decision.


                                                  8
       Other elements of section 1369 reflect statutory rather than constitutional rights.
For example, “[t]he right to a jury determination of competency is statutory . . . not
constitutional; thus, counsel may effectively waive it without a personal waiver from the
defendant.” (People v. Lawley (2002) 27 Cal.4th 102, 131.) We see no reason to apply a
different analysis to the right at issue here. We conclude that section 1369(a)’s
requirement that the trial court appoint a second mental health evaluator when the
defendant contests competency is a function of state law—not federal constitutional
command. To show prejudicial error justifying reversal, Leelu must “demonstrate there
is a reasonable probability that in the absence of the error he or she would have obtained
a more favorable result.” (Lightsey, supra, 54 Cal.4th at p. 699, citing Watson, supra, 46
Cal.2d at p. 836.)
       We turn now to whether Leelu has carried her burden of showing prejudice. The
requirement in section 1369(a) that two experts be appointed when the defendant or her
counsel asserts she is competent “provides a minimum protection for the defendant
against being incorrectly found incompetent to stand trial.” (Harris, supra, 14
Cal.App.4th at p. 996.) The relevant question we confront is whether there is a
reasonable probability that the trial court would have found Leelu competent to stand trial
had the trial court appointed a second mental health expert.
       “As a matter of due process, ‘[a] defendant may not be put to trial unless he “ ‘has
sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding . . . [and] a rational as well as factual understanding of the proceedings
against him.’ ” ’ ” (People v. Buenrostro (2018) 6 Cal.5th 367, 386.) “ ‘The applicable
state statutes essentially parallel the state and federal constitutional directives.’
[Citation.] Section 1367, subdivision (a), provides in pertinent part: ‘A person cannot be
tried or adjudged to punishment . . . while that person is mentally incompetent. A
defendant is mentally incompetent for purposes of this chapter if, as a result of mental
disorder or developmental disability, the defendant is unable to understand the nature of
                                                   9
the criminal proceedings or to assist counsel in the conduct of a defense in a rational
manner.’ ” (Ibid.)
       We see no evidence in the record to support a conclusion that appointment of a
second mental health expert would have affected the trial court’s finding that Leelu was
not competent to stand trial. Leelu’s comments reflected at her arraignment in docket
C1779663 were so disjointed that the trial court immediately suspended criminal
proceedings against her. The mental health expert appointed by the trial court related that
Leelu “insists that her attorney is ‘The Senior Minister of the Interior,’ from Canada, and
he would be defending her except he lost his Canadian driver’s license, and must return
home to get a replacement.” When informed about the expert’s opinion that she was
incompetent to stand trial, Leelu had an outburst and had to be removed from the
courtroom. Although Leelu’s own attorney could not understand what Leelu was telling
her, counsel felt she should object on Leelu’s behalf to the expert’s opinion that Leelu
was incompetent. The report from the South Bay Conditional Release Program described
“significant evidence that suggests [Leelu] is inappropriate for community outpatient
treatment to reach trial competency” because she “is so severely decompensated that she
would be unable to function and/or cooperate with any outpatient treatment.”
       After reviewing the record, we conclude it is not reasonably probable that Leelu
would have been found competent had the trial court appointed a second mental health
expert to evaluate her. We therefore affirm the trial court’s order committing Leelu to the
Department of State Hospitals.
                                   III. DISPOSITION
       The March 8, 2018 order committing Leelu to the Department of State Hospitals is
affirmed.




                                                10
                           ______________________________________
                           Danner, J.




WE CONCUR:




____________________________________
Elia, Acting P.J.




____________________________________
Grover, J.




H045703
People v. Leelu
Trial court:                  Santa Clara County Superior Court
                              Case Nos.: B1795335, C1779663

Trial judge:                  Hon. Michele McKay McCoy
Attorney for Defendant and    Gordon B. Scott
Appellant                     under appointment by the Court of Appeal for
CHARLETE LEELU:               Appellant


Attorneys for Plaintiff and   Xavier Becerra
Respondent                    Attorney General of California
THE PEOPLE:                   Jeffrey M. Laurence
                              Senior Assistant Attorney General
                              Catherine A. Rivlin
                              Supervising Deputy Attorney General
                              Allan Yannow
                              Deputy Attorney General




      H045703
      People v. Leelu
