PEOPLE v. RODASAppellant’s Petition for ReviewCal.September 22, 2016$237379 IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) Court of Appeal No. B255598 ) Plaintiff and Respondent, ) ) Superior Court No. BA360125 vs. ); SUPREME COURT Domingo Rodas ) FILED Defendant and Appellant. ) ) SEP 2 2 2016 Frank A. McGuire Clerk Petition From A Judgment Of The Court Of Deputy Appeal, State Of California, Second Appellate District, Division Three PETITION FOR REVIEW Joanna McKim, Esq. SB#144315 P.O. Box 19493 San Diego, CA 92159 (619) 303-6897 Attorney for Appellant/Defendant IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) Court ofAppeal No. B255598 | ) Plaintiff and Respondent, Superior Court No. BA360125 ) ) VS. ) Domingo Rodas ) ) ) ) Defendant and Appellant. Petition From A Judgment Of The Court Of Appeal, State Of California, Second Appellate District, Division Three PETITION FOR REVIEW Joanna McKim, Esq. SB#144315 P.O. Box 19493 San Diego, CA 92159 (619) 303-6897 Attomey for Appellant/Defendant TOPICAL INDEX TABLE OF AUTHORITIES 1 ISSUES PRESENTED FOR REVIEW 1 GROUNDS FOR REVIEW 2 INTRODUCTION 2 RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 2 NECESSITY FOR REVIEW 3 I. REVIEW IS NECESSARY TO DECIDEIF A CRIMINAL DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL IS VIOLATED WHEN THE COURT PROCEEDS WITH THE TRIAL WITHOUT A PROPER COMPETENCY HEARING UNDER PENAL CODE SECTION 1368 WHEN THE RECORD DID NOT SUPPORT A FINDING OF COMPETENCY 3 Il. REVIEW IS NECESSARY TO DECIDE WHETHER A CRIMINAL DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESSIS VIOLATED WHEN A TRIAL COURTFAILS TO SUSPEND PROCEEDINGS UNDER PENAL CODE SECTION 1368 AND CONTINUES WITH THE TRIAL AFTER DEFENSE COUNSEL EXPRESSED DOUBT ON THE DEFENDANT’S COMPETENCY 5 IT. REVIEW IS NECESSARY TO DETERMINEIF A CRIMINAL DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL IS VIOLATED WHEN THE TRIAL COURT ALLOWS THE PROSECUTION TO ELICIT EXPERT TESTIMONY THAT ESSENTIALLY PROVIDES AN OPINION THAT THE DEFENDANT PREMEDITATED AND DELIBERATED THE CRIMES 8 CONCLUSION 10 TABLE OF AUTHORITIES Cases Bruton vy. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476) oo... eecccesececeeeeseeeeeesececaeeseeeeeceeteneeeeeree 8 Drope v. Missouri (1975) 420 U.S. 162 [95 S. Ct. 896, 43 L. Ed. 2d 103)...ccc eeccecececceseeeceseeeeneceneeseseaeenavenrersaeees 3 Dusky v. United States (1960) 362 U.S. 402 [80 S. Ct. 788, 4 L. Ed. 2d 824). ooo. eceessecssneeceennneeceneteneeeeeeessaeenreeenaes 6 McKinneyv. Rees (9" Cir. 1993) 993 F.2d 1378 ...cccecccecsessececsscecssecesstsceceseeeceeseneeeecesstaeecscauevsssesssessseaenesesececseeseeeeaaeseseeteseees 8 O'Sullivan v. Boerckel (1999) 526 U.S. 838 [119 S. Ct 1728, 144 L.Ed.2d 1)...cecececeseecseeceeeeeeaeeceaeeaaceceseeseeenseeneea 2 Pate v. Robinson (1966) 383 U.S. 375 [86 S. Ct. 836, 15 L. Ed. 2d 815)...ccc ccccceseeeceeeneeeeeceeeeeeceeeeeeaeeenetens 3,5,6 People v. Bordelon (2008) 162 Cal. App. 4th 1311cececeeeeceeeceee cess ceseersnseseceaeeseaeseasaeegeeaasaseaeeeeaeaeeeeseeeeens 9 People v. Hale (1988) AMA Cal. 3d S31 eececcesccccssscecesscesscsenseseecsnscecssecessiecessareseaaeceaecaaecsaeseenesceneseaeqececseaueevereneeneetes 3 People v. Lowe (2012) 211 Cal.App.4th 678 oo... cccecsceeeccsseeesseseeceeeeercesessacesessaseecsevsecaesseseaesaeeecsevaeeeesnsesssisnesseees 9 People v. Mai (2013) ST Cal4986 oo.cccccceccessecsecsseseceessssesssseessseessecsevsesssvassccesssvscaseccsssessssecsseaessiseseasaceasseeesees 5.6 People v. Murdoch (2011) 194 Cal. App. 4th 230...ceecece eceeececneeseeeececeseeectesaeceaeeseauesesaeaeseeneesieeeesenasenees 4,6,7 People v. Pearson (2013) 56 Cal. 4th 393occcecscssessesseeseereecsecereessaeecscecesneseeerecevsecsuescassaeseeaesasesecaeesaeseneenereseneeey 9 People v. Rogers (2006) 39 Cal. 4826 ooocecccececcccccsesesesesesescsesenenseessesesssesesecsenenssssseussssesesssessesnstsnenssieeseastssssnsessecees 4 Statutes Penal Code, § 29 o...ciccc ccc ccccccsccessscssessssessssesececcceceaeeeseeeeseceeseeseseceeesssececeecceeeseceeessuauseeeceseeeeas 9 Constitutional Provisions California Constitution At. 1, 87ccccccecccccnssevsssecsccessssrsssrseusesaaassessusesseseesentcenseaseaaeasesussssessanaseeeseeens 3,5,6,8 United States Constitution Amend. Vou... ccececcecesesessseceessesseecenseecccessesessececessssecsssecsesasesuesuauaaaaececenscstseverreseseens 3,5,6,8 AMend. XIV... .ccccsescessnssesssscsceessuscssssccescecscucucessucesesenscsaasccsceseeeseccessasersueussesesenens 3,5,6,8 al : TO: THE HONORABLECHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT FOR THE STATE OF CALIFORNIA: Domingo Rodas,petitioner and defendant, through counsel, respectfully petitions this Honorable Court for review in the above-entitled matter after decision affirming the conviction rendered by the Court ofAppeal of the State of California, Second Appellate District, Division Three, filed on August 15, 2016. A copy ofthe opinion of the Court of Appeal is attached as an appendix. ISSUES PRESENTED FOR REVIEW 1. Did The Court OfAppeal Err In Finding No Error In The Court Proceeding With The Trial Without A Proper Competency Hearing Under Penal Code Section 1368, Violating Petitioner’s Constitutional Right To Due Process, A Fair Trial? 2. Did The Court OfAppeal Err In Finding No Error In The Trial Court Failing To Suspend Proceedings Under Penal Code Section 1368 And Continuing With The Trial After Defense Counsel Expressed Doubt On Petitioner’s Competency, Violating Petitioner’s Constitutional Right To Due Process, A Fair Trial? 3. Did The Court Of Appeal Err In Finding No Error In The Trial Court Allowing The Prosecution To Elicit Expert Testimony That Essentially Provided An Opinion That Petitioner Premeditated And Deliberated The Crimes, Implicating Petitioner’s Constitutional Right To A Fair Trial? — GROUNDSFORREVIEW Review is necessary to settle important questions of law and to secure uniformity of decision. (Cal. Rules of Court, 8.500 (b).) Review is also necessary because petitioner must exhaust his claims in state court prior to seeking federal relief. (O'Sullivan v. Boerckel (1999) 526 US. 838, 840-42 [119 S. Ct 1728, 144 L.Ed.2d 1].) INTRODUCTION In his appeal, petitioner argued the court erred in proceeding with thetrial without a proper competency hearing under Penal Code section 1368 andthetrial court later erred in not suspending proceedings under Penal Code section 1368 after defense counsel expressed a doubt on petitioner’s competency. Also,the trial court prejudicially erred in allowing the prosecution to elicit improper expert opinion testimony. Other than modifying the judgment for sentencing errors, the Court of Appeal found noerror and affirmed the judgment. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Petitioner adopts the statement of facts and procedural background in the Court of Appeal’s opinion attached hereafter as an appendix. NECESSITY FOR REVIEW I. REVIEW IS NECESSARY TO DECIDEIF A CRIMINAL DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIAL IS VIOLATED WHEN THE COURT PROCEEDS WITH THE TRIAL WITHOUT A PROPER COMPETENCY HEARING UNDER PENAL CODE SECTION 1368 WHEN THE RECORD DID NOT SUPPORTA FINDING OF COMPETENCY On this issue, the Court ofAppeal found noerror. It concluded a stipulation was not required and absent a request for further hearing, the court could summarily approvepriorcertification that his competency was restored. According to the Court of Appeal, Judge Olmedo did make comments that could be interpreted as referring to a competency hearing held before another bench officer that defense counsel was unaware of; but this interpretation was “strained” and the record showed the only other competency hearing was the one before Judge Schnegg on February 3, 2012. There was no showingthat petitioner’s counsel at the May 10 hearing was confused on the issue. (Ct App. Opn. p. 12.) Further, asto petitioner’s claim that evidence that he was not taking his medication constituted substantial evidence he was not competent, there was no showing of mental decompensation that he was no longer competent. (Ct. App. Opn. pp. 12-13.) Petitioner disagrees. A trial court’s failure to employ procedures to protect against trial of an incompetent defendant deprives that defendant of his or her due process right to a fair trial and requires reversal of the conviction. (Pate v. Robinson (1966) 383 U.S. 375, 377-78 [86 S. Ct. 836, 15 L. Ed. 2d 815]; Drope v. Missouri (1975) 420 US. 162, 171-72 [95 S. Ct. 896, 43 L. Ed. 2d 103]; People v. Hale (1988) 44 Cal. 3d 531, 539; U.S. Const. Amend. V, XIV; Cal. Const. Art. 1, § 7.) The court's duty to conduct a competency hearing mayarise at any timepriorto Judgment. Due process and state law requirea trial judge to suspendtrial proceedings and conduct a competency hearing wheneverthe court is presented with substantial evidence of incompetence, i1.e., evidence that raises a reasonable or bona fide doubt concerning the defendant's competenceto stand trial. Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. (People v. Rogers (2006) 39 Cal. 4" 826, 846-47; People v. Murdoch (2011) 194 Cal. App. 4th 230, 236; Pen. Code, § 1368.) Here, contrary to the Court of Appeal’s opinion, the court erred in proceeding with the trial without a proper hearing on petitioner’s competency. There was no agreementthat the matter would be submitted based on the doctor reports without a hearing and noindication in the record that the attorney standing in for petitioner during the May 10, 2013 proceeding knew that a prior hearing on competency had not been held. (Supp. RT 6, 10.) Further, the medical reports and evidence that petitioner was currently not taking his medication supported the conclusion that he was not competent to stand trial. Contrary to what the Court of Appeal decided, the doctor reports did condition petitioner’s competency on him taking his medication. According to the medical reports, without his medication, petitioner would decompensate. (2 CT 209, 202, 205.) At the May 10, 2013 proceeding, counsel appearing for petitioner sought a medical orderasto petitioner’s medication and stated: “he’s not getting his medication; which would certainly affect this case.” (2 RT C3.) Additionally, as reflected in the medical reports, petitioner had a long history of mental illness, multiple hospitalizations, and had been found incompetent to stand trial beginning back in the 1980’s based on the same mentalillness and symptoms, e.g., paranoid schizophrenia, delusional thinking, “thought disordered with 4 evidence of word salad and incoherence.” (E.g., 2 CT 193, 201, 204, 205, 209.) The current proceedings, appellant suffering from mental illness and exhibiting signs of decompensation and incompetency, were no different. In short, the court erred in proceeding with the trial and the Court of Appeal erred in deciding otherwise. Theerror violated petitioner’s constitutional right to due process. (Pate v. Robinson, supra, 383 U.S. 375, 377-78; U.S. Const. Amend. V, XIV; Cal. Const. Art. 1, § 7.) This court should grant review, examine the decision and reverse. Il. REVIEW IS NECESSARY TO DECIDE WHETHERA CRIMINAL DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESSIS VIOLATED WHEN A TRIAL COURTFAILS TO SUSPEND PROCEEDINGS UNDER PENAL CODE SECTION 1368 AND CONTINUES WITH THE TRIAL AFTER DEFENSE COUNSEL EXPRESSED DOUBT ON THE DEFENDANT’S COMPETENCY Here, citing People v. Mai (2013) 57 Cal.4™986, the Court of Appeal decided there was no substantial evidence petitioner was incompetent and proceedings should have been adjourned. Although counsel’s description of her client’s note and behavior suggested mental illness, this was not substantial evidence. Instead, petitioner’s responses to Judge Perry suggested he was competent. He knew he wasin a jury trial and recited the charges. He knew counsel was defending him and was willing to help. He also apologized for his obstructive behavior. (Ct. App. Opn.p. 13.) Asto petitioner’s failure to take his medication,he still showed some understanding of the nature of the criminal proceedings. There was no current medical report from 2014 describing the effect of Rodas’s failure to take his medication. (Ct. App. Opn.p. 14.) Petitioner disagrees. The conviction of an accused person whois legally incompetent violates due process. (Pate v. Robinson, supra, 383 U.S. 375, 377-78; U.S. Const. Amend.V, XIV; Cal. Const. Art. 1, § 7.) A defendant is incompetentto standtrial 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 ofthe proceedings. (People v. Rogers, supra, 39 Cal.4™ at pp. 846-47; Dusky v. United States (1960) 362 U.S. 402 [80 S. Ct. 788, 4 L. Ed. 2d 824].) Here, contrary to what the Court ofAppeal concluded,the trial court erred in failing to suspend proceedings under Penal Code section 1368 and continuing with the trial, violating petitioner’s constitutional due process rights. (Pate v. Robinson, supra, 383 U.S. 375, 377-78; People v. Murdoch (2011) 194 Cal. App. 4th 230, 237-39; U.S. Const. Amend. V, XIV; Cal. Const. Art. 1, § 7.) The psychiatric reports for the Penal Code section 1368 proceeding the year before did condition petitioner’s competency on him continuing to take his medication. At the time the reports were written, April of 2013, petitioner was found compliant in taking his medication. (2 CT 202, 205, 206, 209.) Almost a year later when counsel expressed her concern aboutpetitioner’s competency, he wasnot taking his medication and his behavior was exactly as that described in the competency reports that manifested his mental illness. (E.g., 2 CT 204.) Although the Court in People v. Mai, supra, 57 Cal. 4" 986, stated that counsel’s assertion that his or her client is or may be incompetent doesnot, in the absence of substantial evidence to that effect, require the court to hold a competency hearing (id. at p. 1033), it also stated that “[cJounsel's assertion of a belief in a client's incompetenceis entitled to some weight.” (/d.) In any respect, counsel also described notes appellant made which showedhis incompetence to proceed with the trial. Appellant had written down: “playing record Hollywood Department westside honor ranch L.A. County. Two police officers visiting. Four records. Call to testify in court. Statement you 6 are the one that murdereda series of persons in a tunnel.” (2 RT 305.) The second page had written: “has transcriptures (sic) of acquittal of execution, transcriptures of the advance of the court date. . . and transcriptures of the name Plake Rodas, Domingo to Doudley Brown.” (2 RT 305.) Appellant had referred to the videos as assimilations. (2 RT 306.) Onthis issue, the Court ofAppeal found People v. Murdoch, supra, 194 Cal. App.4th 230 not relevant as in that case the defendant had already stopped taking the medication at the time the report was made and was showingsigns of decompensation. (Ct. App. Opn. p. 14.) Petitioner disagrees; the case is relevant. In People v. Murdoch, supra, 194 Cal. App. 4th 230, the defendant was known to be mentally ill. The experts concluded that while the defendant was competentat the time he was examined, competence was dependent upon medication compliance. Additionally, one doctor’s report stated the defendant had stopped taking his medication. The defendant told another doctor the medication did not help him,he did not like taking it, and only took it sometimes. (/d. at pp. 237-39.) Similarly, here, the medical reports consistently reflected the doctors’ opinions that petitioner had to be on his medication in order to retain competency to stand trial. Further, there was evidencepetitioner had stopped taking his medication. Counsel at the May 10, 2013 hearing sought an order for petitioner to take his medication. (2 RT C3.) Almost a year later, defense counsel informedthetrial court petitioner told her he was not taking his medication. He told the trial court the same thing. His behavior, despite an ability to recite the general charges, reflected nonsensical statements and delusions. (2 RT 306-07, 311.) He did not show a logical understanding of the current proceedings. His counsel could not ascertain what he wanted. His behavior was the sameasthat described for his prior competency proceedings, beginning decades ago. He could not have consulted with his counsel with any rational understanding. (2 CT 202, 204, 205, 206, 209; 2 RT 311.) In sum,the trial court erred in failing to suspend proceedings under Penal Code section 1368, violating petitioner’s constitutional due process rights. In his condition, he was unable to consult with his lawyer with any degree of logical understanding and failed to demonstrate he understood the import of the proceedings. (Pate, supra, 383 U.S. 375, 377-78; U.S. Const. Amend. V, XIV; Cal. Const. Art. 1, § 7.) The Court of Appeal erred in deciding otherwise. This court should grant review, examine the decision and reverse. Ill. REVIEW IS NECESSARY TO DETERMINEIF A CRIMINAL DEFENDANT’S CONSTITUTIONAL RIGHT TO A FAIR TRIALIS VIOLATED WHEN THE TRIAL COURT ALLOWS THE PROSECUTION TO ELICIT EXPERT TESTIMONY THAT ESSENTIALLY PROVIDES AN OPINION THAT THE DEFENDANT PREMEDITATED AND DELIBERATED THE CRIMES Forthis issue, the Court of Appeal rejected petitioner’s argument, finding the hypotheticals were appropriate tools of impeachmentto attack Dr. Morris’s suggestion on direct examination that a schizophrenic is impulsive and lacks reasoning and logic. The prosecution countered this with questions designed to show that a schizophrenic can be goal oriented and plan. The prosecutor stopped short of asking whether the hypothetical person premeditated and deliberated. (Ct. App. Opn.p. 18.) Petitioner disagrees. An important elementof a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. (Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6 [88 S.Ct. 1620, 20 L.Ed.2d 476]; McKinney v. Rees cg" Cir. 1993) 993 F.2d 1378, 1384; U.S. Const. Amend. V, XIV;Cal. Const. Art. 1, § 7, 15.) Any expert testifying about a defendant's mental illness, 8 th mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mentalstates; this is a question to be decided by the jury. (Pen. Code, § 29.) Expert testimony may not invade the province of the jury to decide a case. (People v. Lowe (2012) 211 Cal.App.4th 678, 684.) Here, contrary to what the Court of Appeal decided, the prosecution’s question, asking Dr. Morris whether “that person not only conceal[ing] the knife, but looks for an opportunity where nobody’s around before the person takes the act in killing . . . [was] thinking methodically, planning out his course of action, goal oriented” (3 RT 924), sought Dr. Morris’s opinion on whetherpetitioner premeditated and deliberated the crimes. This was improper. The jury, not Dr. Morris, had to decide petitioner’s intent. “Counsel was simply planning by means of the hypothetical to do indirectly what he could not do directly underthestatute, namely, elicit an opinion from [Dr. Morris] regarding defendant's specific intent.” (People v. Bordelon (2008) 162 Cal. App. 4th 1311, 1327; People v. Pearson (2013) 56 Cal. 4th 393, 444.) The error wasalso prejudicial. Testimony on the subject was harmful for the defense. The expert’s responses to hypotheticals based on the circumstances of these crimes focused on whetherthe particular conduct showed planning and goal oriented behavior. Given the lack of other witnessesto testify on the subject, the jurors likely used the testimony to conclude petitioner premeditated and deliberated the crimes. Also, the prosecution lacked an overwhelmingcase against petitioner on the question of premeditation and deliberation. Although evidence showed possession of a weapon, there was no evidence ofplanning activity or motive. In short, the trial court erred in overruling the defense’s objectionsto the prosecution’s questions to Dr. Morris, seeking an opinion on whetherpetitioner premeditated and deliberated the crimes. The resulting testimony was improper 9 and impinged on the jury’s function. The error implicated petitioner’s constitutionalrightto a fair trial. (U.S. Const. Amend. V, XIV: Cal. Const. Art.I, § 7.) The Court of Appeal erred in deciding otherwise. This court should grant review, examine the decision and reverse. CONCLUSION This case involves important constitutional issues, including an accused’s federal constitutionalrights to due process,a fair trial. The Court of Appeal's decision, finding noerroror constitutional violation, conflicts with established law pertaining to this right and thereby justifies this court's review of petitioner's case. Should this court grant review, petitioner submits that the case be resolved in petitioner's favor. For these and the foregoing reasons, petitioner requests that this court grant his petition for review. DATED: , 2016 Respectfully Submitted, Joanna McKim California Bar No. 144315 Attorney for Petitioner 10 Certification Regarding Petition For Rehearing And Word Count A petition for rehearing wasnotfiled in the appellate court for this defendant. Further, the word count is 2694 words according to my Microsoft Word program. (Cal. Rules of Court, Rule 8.504.) I declare under penalty of perjury that this statementis true. Executed on 2016, at San Diego, California, Signature: , Name: Joanna McKim - 144315 P.O. Box 19493 San Diego, CA 92159 (619) 303-6897 Attorney for Appellant/Petitioner APPENDIX NOT TO BE PUBLISHEDIN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinions notcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposesof rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, . B255598 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA360125) Vv. COURT OF APPEAL - SECGND List 0 DOMINGO RODAS, iP i Il 2 ig | AUG 15 2016 Defendant and Appellant. JOSEPH A. LANE clerk ae Sana APPEALfrom a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Modified and, as modified, affirmed. Joanna McKim,under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D.Harris, Attorney General, Gerald A. Engler, ChiefAssistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Domingo Rodas was charged with multiple counts of murder and attempted murder. He was found incompetent to stand trial. Criminal proceedings were adjourned, and Rodas was remanded to a treatmentfacility. After the trial court found that Rodas’s competency had been restored, he wastried by a jury and found guilty. Rodas’s primary contention on appeal is there was substantial evidence he was not competent to stand trial. We conclude, however, that there was insufficient evidence he was incompetent, and therefore the trial court did not err by refusing to hold further competency proceedings. Although wereject this and Rodas’s other contentions, we modify the judgmentto correct sentencing errors. The judgmentis affirmed as modified. BACKGROUND L Factual background A. The murder ofFrederick Lombardo on July 19, 2009 Onthe evening of July 19, 2009, officers responded to a report of a “man down”at 6174 Santa Monica Boulevard near El] Centro. The man,identified as Lombardo, died from a chest stab wound. 7 B. The murders ofRoger Cota and Keith Fallin and attempted murders of Ronald Vaughan and Kenneth McFetridge on August 6, 2009 Less than a month after Lombardo’s murder, four similar incidents occurred on August 6, 2009 in the Hollywood area, within a mile to half-mile of each other. _ At approximately 1:15 p.m., Wilford Tiu was in a parking lot on Sunset Boulevard. A man wholooked homeless and waslater identified as Roger Cota walked slowly toward Tiu. Cota said he’d been shot, but he didn’t know whodid it. Cota had been stabbed, not shot, and he died from his wound. Ashli Hughes was working at the Fonda Theatre, near Hollywood and Gower. While she was outside, Hughes noticed Rodas, who had been “hanging out” for 20-to-30 minutes. Another man, Keith Fallin, was sleeping on the street. At just before 2:00 p.m., al Hughesbriefly went back into the theatre. When she camebackout, Fallin had been stabbed in the chest.’ He died from his wound. Kenneth McFetridge was homeless. While on Yucca, between Wilcox and Cahuenga, he took a nap on the sidewalk about midafternoon. When he awokeit was “coming on evening” and he hadsevere chest pain. At approximately 4:00 p.m., firefighters responded, but McFetridge refused to be taken to the hospital without his belongings. McFetridge eventually went to the hospital, where he wastreated for a stab wound. Ronald Vaughan was homeless. While walking on Yucca Avenueat approximately 5:45 p.m., he noticed a Black man behind him. When Vaughan stepped aside to let the man pass, the man “hit” Vaughan,or so he thought. In fact, Vaughan had been stabbed. He survived. C. The investigation Officers investigating the crimes on August 6, 2009 received a description of the suspect as a “male Black” wearing a black and white long sleeved shirt with black pants — and a green backpack. Whenofficers searched the area around Yucca and Argyle, they saw Rodas on Gowerand detained him. In his sleeve, he had a knife with a black handle wrapped in a homemade sheath. A DNAmixture of three individuals, including victims Lombardo and Fallin, was on the knife handle. A DNA mixture ofat least two individuals was on the knife’s blade, and the majority profile matched Lombardo. A DNA mixtureofat least three individuals was onthe knife sheath, and the major profile matched Fallin. A swab from red stain on the sheath matched Lombardo’s DNAprofile. McFetridge’s DNA was on Rodas’s shirt. The incident was captured by surveillance cameras. 3 D. Rodas’s testimony Rodastestified in his defense. He asked the court to “order the three video record exhibition and report for video filming in the nature exhibited, the copy from the Hollywood Police Department, the copy that Carole Telfer [his public defender] showed me at Wayside Honor Ranch,and the copyin the nature that is being exhibited here at the courtroom ....” He also said that officers “committed” him to “the statements to the four video record copies that you are the one that committed a serious ofmurders in a tunnel.” Rodas’s testimony was stricken and the jury was ordered not to considerit. E. Defense expert testimony Dr. Raphael Morris, a psychiatrist, was asked to form an opinion on whether Rodashas a mental illness. Based on his review of Rodas’spolice records, military records, psychiatric evaluations, and state hospital records, Dr. Morris diagnosed Rodas with “schizophrenia, undifferentiated type, subtype.” il. Procedural background In 2011, an information wasfiled alleging three counts of murder and two counts of attempted murder, with special circumstances and weaponsallegations, against Rodas. In 2012, Rodas was found incompetentto stand trial. Proceedings were adjourned but resumedin 2013 after a certification of restoration of mental competency wasfiled. Rodas was then tried by a jury, which rendered its verdict on March 24, 2014. The jury found Rodasguilty of count 1, the first degree murder by lying in wait ofFallin (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15)),” and of counts 2 and 4, the willful, deliberate and premeditated attempted murders of Vaughan and of McFetridge (§§ 187, subd. (a), 664)). Asto all counts, the jury found true weaponallegations (§ 12022, subd. (b)(1)). As to counts 2 and 4, the jury foundtrue personalinfliction of great bodily injury allegations (§ 12022.7, subd. (a)). The jury found Rodasnotguilty of count3, the murder of Cota, and of count 5, the murder of Lombardo. , All further undesignated statutory references are to the Penal Code. 4 On April 14, 2014, Rodas was sentenced, on count1, to life without the possibility ofparole, plus one year for the use of a weapon. The court imposed a five-year term for a prior conviction foundtrue by the court. On count 2, the court sentenced Rodasto a consecutive life term, one year for the use ofa weapon, and three years for the personal infliction of great bodily injury enhancement. On count 4, Rodas wassentenced to a consecutive life term, one year for the use of a weapon, three years for the personal infliction of great bodily injury enhancement,andfive years for a prior conviction that the court found true. CONTENTIONS Rodas contends I. there was substantial evidence he was incompetentto stand trial, If. the prosecutorelicited improper testimony from Dr. Morris that Rodas had the specific intent to committhe crimes, and III. the abstract ofjudgment mustbe corrected. DISCUSSION 1. Rodas’s competenceto standtrial A. Background regarding the competencyproceedings Defense counsel declared a doubt as to Rodas’s competency in September 2011. The court then appointed psychiatrists to examine Rodas. After the People’s and the defense’s doctors found Rodas to be incompetent, Judge Patricia Schnegg, on February 3, 2012, found that Rodas wasnot presently mentally competentto standtrial. Proceedings were adjourned, and Rodas was remanded to a treatmentfacility. A certification of Rodas’s restored mental competency wasfiled by the medical director of Atascadero State Hospital on May 10, 2013, and a hearing washeld that day before Judge Charlaine Olmedo. The report accompanyingthe certification recommendedthat Rodas be found competentto standtrial. It also recommended he remain on his medication regimen once returned to custody to prevent “mental decompensation” and to maintain competency-related abilities. At the May 10 hearing, Judge Olmedodid not have Rodas’s “case file”; she only had a “docket sheet.” Butit “6.wasthe court’s “understanding that he’s been found competent.” No objections to that understanding were raised by any counsel. Instead, the public defender assigned to the courtroom asked the court to sign a medical order, because “[a]pparently, he’s not getting his medication; which would certainly affect this case.” When Rodas’s public defenderarrived, the court repeated that Rodashad been found competent. Without objection, all counsel agreedto trial date. And whenthe court asked defense counselifthere was a medical order he wantedfilled out concerning Rodas’s medication, counselreplied, “I’m not quite certain I’m going to fill this out today, but I’! — can I let you know later?” The court told counselto “let me knoweither way on the record, or, if not, there’s an actual order form youfill out. If you chooseto do it and you want us to know, check the box that indicates that the court wants to be apprised of the results, and then you will get a court letter on whether or notheis getting his medication.” Because of ambiguities in the record, a hearing was held on December5, 2014 to settle the record from the May 10, 2013 proceeding.° Judge Olmedo had no independent recollection of the case. In reviewing the transcript and docketsheet, “it appears. . . I had a dummyfile, not the case file before me.” In the dummyfile was a letter from the doctor finding Rodas competent. The court said it had found Rodas was competent and that neither side objected to that finding, and defense counseldid not ask for a hearing on Rodas’s competency. Judge Olmedosaid, “So it is clear, in settling the record, I believe that I — if it’s not clear from my words,butthat I inferentially found him competent based upon the doctor’sletter, that both sides submitted based uponthat letter, and that there was no objection to the court relying uponit to resume the criminal proceedings andfind the defendant competent [to] go forward.’ 3 Weordered thetrial court to settle the record “with respect to the competency hearing held between April 18, 2013 .. . and May 10 of 2013.” 4 Carole Telfer, defendant’s trial counsel, was not present at the May 10, 2013 hearing and therefore could not help settle the record. 6 On March 18, 2014, after a jury had been sworn in, defense counsel again declared a doubt as to Rodas’s competency. During an in camera hearing,” defense counsel represented that although Rodashad previously said he wantedajury trial and did not wantto testify or to raise an insanity defense, Rodas now wassaying he wantedtotestify. He gave counsel a note that said, “playing record Hollywood Department Westside Honor Ranch L.A. County. Twopolice officers visiting. Four records. Call to testify in court. Statement you are the one that murdereda series ofpersons in a tunnel.” The note 396 had “transcriptures”” of “acquittal of execution, transcriptures of the advance of the court date from May 2nd, 2012 from April 6th, 2012, and transcriptures of the name Plake,. . Rodas, Domingo to Doudley Brown. . . .”” Whencounseltried to discuss the note with Rodas, it seemed to her “he was indicating something about the video, but was asserting that the video they had, all three ofthem were assimilations and were not the correct video.” She didn’t know what Rodas meant by “assimilations.” She also didn’t know whyhesaid officers visited him injail, because that was inaccurate. When she asked what he meantby “transcriptures of acquittal of execution,” he responded in a wordsalad,1-e., “using a lot of polysyllabic wordsthat go aroundin a circle and don’t really makesense.” Rodasalso talked about sentencing in a way that caused counsel to explain he was still in trial and had not yet been found guilty or innocent or been sentenced. Rodas talked about his commitment to Patton State Hospital, and “then regarding the name change, he got very angry at me and again started doing this word salad”andtalking about forgery, and how could they say he was Doudley Brown. Counsel couldn’t understand his point about forgery. Counsel said that whenever Rodas was “1368 [referring to incompetency] he used this word salad,”although in the past he’d usedit in The reporter’s transcript of the in camera hearing was unsealed. It is unclear if this was counsel’s or Rodas’s word. Rodas’s birth name was Dudley Kenneth Brown. 7 Spanish and was now usingit in English. Counsel said: “I don’t know what he’s saying, I don’t know whathe wants, and he wants — apparently wants to testify and I’m afraid to put him on the stand because I don’t know what’s going to comeout of his mouth.” Rodas had also told counsel he wasnot taking his medication. The court then addressed Rodas: “(The court]: Mr. Rodas how you doing? “[Rodas]: I’m fine, thank you, your Honor. Since I have returned from Atascadero Hospital, that ’ve been proved mentally competent to standtrial,it is the first time that I made those notes andI had a conversation with Carole Telfer just yesterday. AndI really didn’t mean to be obstructive to the person’s attention. I didn’t know that that was the person means. I wasbeing belligerent as how the — antagonistic as how the personsaid, and J didn’t knowthat I was being obstructive or confrontive, or con — “The court: Confrontational. “[Rodas]: Yeah, confrontational. And I didn’t know that I was being by anyone — being obstructive against the person. “The court: Well, how are you feeling today? “{Rodas}: I feel perfectly fine, your Honor. I don’t — I don’t consider — I only wanted to ask the person’s pardonif I possibility was being obstructive that I made up those notes, and I really don’t mind howtheperson to continue defending my case for me and I do meanto keep quiet. I didn’t know,at least the first time I spoke to the person admittedly, and I didn’t know that I was being — that the person was considering me to be confrontative [sic] or obstructive. “The court: Well, let’s slow down here. [{] You know what wehave a jury now? “TRodas]: Yes, your Honor. “The court: And we’reset to start the trial? “[Rodas]: Yes, your Honor. “The court: And do you understand that you’ve been charged with someserious crimes? “[Rodas]: Yes, your Honor. “The court: You’ve been — can youtell me what you’ve been charged with? “{Rodas]: Yes, I understood yesterday the proceedings were going over andthat] was being charged with three counts of murder and two counts of attempted murder. “The court: And you know Ms.Telfer is here to defend you on those charges? “[Rodas]: Yes, your Honor. “The court: And are you willing to help herto the best of your ability? “[Rodas]: Yes, your Honor.” . Thecourt said it was “impressed with his clarity of speech and apparentclarity of reasoning in addressing the court. He understands the charges.. He says he’s willing to help you.” The court then asked Rodasifhe wanted to proceed with trial, and Rodas said, “Yes, your Honor. Thatwill be properly fine, yes, your Honor.” The court confirmed that was Rodas’s “request.” When the court asked Rodasif he wastaking his medication, Rodasreplied, “No, your Honor, I’ve been doing without the medication. I’ve been doing fine. I’ve been getting along well. I’ve been there about a yearalready. I returned from Atascadero Hospital since Mayoflast year and I’ve been doingfine. I have been doing without my medications. It was just the notes that I made to Ms: Telfer and she thought I was being obstructive or confrontative.” Rodas said he understood what was going on and wouldtry to help his counsel with his defense. The court said,“I think we should go forward.” Counselreplied, “Fine. I just wanted to make a record.” Trial went forward. B. Proceedings to determine mental competency The due process clause of the Fourteenth Amendmentandstate law prohibit trying or convicting a defendant while heor she is mentally incompetent. (People v. Mai (2013) 57 Cal.4th 986, 1032; People v. Rogers (2006) 39 Cal.4th 826, 846; § 1367, subd. (a).) A defendant is mentally incompetentif, as a result of mental disorder or developmental disability, he or she is unable to understandthe nature of the criminal proceedings or to assist counselin the conduct of a defense in a rational manner. (§ 1367, subd.(a); Mai, at 9 p. 1032.) Competenceto standtrial requires a defendant’s sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understandingor a rational and factual understanding ofthe proceedings. (Dusky v. United States (1960) 362 U.S. 402.) Proceedings must be suspended and a competencyhearing held ifa trial court is presented with substantial evidence the defendant is incompetent. (Mai, at p. 1032.) ‘Substantial evidence of incompetence exists when a qualified mental health expert who has examined the defendantstates under oath, and ‘ “ ‘with particularity,’ ” ’ a professional opinion that because of mentalillness, the defendantis incapable of understanding the purposeornature of the criminal proceedings against him,or of cooperating with counsel. [Citations.] [J] The defendant’s demeanorandirrational behavior mayalso, in proper circumstances, constitute substantial evidence of incompetence.” (People v. Mai, supra, 57 Cal.4th at pp. 1032-1033.) Substantial evidence is evidence that raises a reasonable or bonafide doubt concerning the defendant’s competencetostandtrial. (People v. Rogers, supra, 39 Cal.4th at p. 847.) Although a counsel’s assertion of a belief in a client’s incompetenceis entitled to some weight, such an assertion, in the absence of substantial evidenceto that effect, does not require the court to hold a competency hearing. (Mai, at p. 1033.) Once the defendant comes forward with substantial evidence of mental incompetence, due process requires that a full competency hearing be held. (Peoplev. Stankewitz (1982) 32 Cal.3d 80, 92.) “In that event, the trial judge has no discretion to exercise. [Citation.] As we also have noted, substantial evidence of incompetenceis sufficient to require a full competence hearing even if the evidenceis in conflict.” (People v. Welch (1999) 20 Cal.4th 701, 738; see also People v. Young (2005) 34 Cal.4th 1149, 1216.) A failure to declare a doubt and conduct a hearing whenthereis substantial evidence of incompetencerequires reversal of the judgment of conviction. (People v. Rogers, supra, 39 Cal.4th at p. 847.) 10 El e But when“the evidence casting doubt on an accused’s present competenceis less than substantial”it is “within the discretion of the trial judge whetherto order a competence hearing. Whenthetrial court’s declaration of a doubt is discretionary,it is clear that ‘more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendantis incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense [citation].’ [Citation.]” (People v. Welch, supra, 20 Cal.4th at p. 742; see also People v. Panah (2005) 35 Cal.4th 395, 432 {“Absent substantial evidence of a defendant’s incompetence, ‘the decision to order such a hearing[is] left to the court’s discretion.’ ”]; People v. Mai, supra, 57 Cal.4th atp. 1033; People v. Rogers, supra, 39 Cal.4th at p. 847.) If the defendant is found to be incompetent after a competencyhearing, the defendant is committed to a treatment facility for restoration of competency. (§§ 1368, 1370, subd. (a)(1)(B).) When the facility’s director certifies that competency has been restored, the defendantis returned to court. (§§ 1370, subd. (a)(1)(C), 1372, subd. (a)(1).) Absent a request for a hearing, the court has authority to summarily approvethe certification without further hearing. (People v. Mixon (1990) 225 Cal.App.3d 1471, 1480.) C. The May 10, 2013 hearing At the May 10, 2013 hearing, Judge Olmedohada certificate of restoration of Rodas’s mental competency, which was accompanied by a medical report. The court accordingly found Rodas to be competent to stand trial. No party objected or requested further proceedings. No evidence waspresented that Rodas was incompetent. (See People v. Mixon, supra, 225 Cal.App.3d at p. 1480.) We therefore discern noerror. Rodas, however, assigns three errors to the hearing. First, there was “no stipulation the matter would be submitted based on the doctor reports without a hearing.” 11 A stipulation was not required.* Rather, Rodas had been found incompetentto standtrial at the hearing in 2012, and he was referred to treatment. His competency wasrestored, and he'was returned to court in May 2013, per the certification. Absent a requestfor a further hearing, the court could summarily approve that certification. (People v. Mixon, supra, 225 Cal.App.3d at p. 1480.) As we havesaid, there was no such request or other objection to the court accepting the certification. Second, Rodas argues that there was “no indication. . . that the attorney standing in [for defense counsel] during the May 10, 2013 proceeding knewthat a prior hearing on competency had not been held.” By this, Rodas appears to refer to an ambiguity in the record. At the May 10 hearing, Judge Olmedo made comments that could be interpreted as referring to a competency hearing held before another bench officer that Rodas’s counsel was unaware of. Although such aninterpretation is strained and the record showsthat the only other competency hearing was the one before Judge Schnegg on February 3, 2012, Judge Olmedo madeit clear in her settled statement that her comments referred to the doctor’s competence finding “not to another bench officer making a finding of competency.” There is no showing that Rodas’s counsel at the May 10 hearing wasconfused aboutthis issue. | Finally, Rodas argues that evidence he wasn’t taking his medication constituted substantial evidence he was incompetentto standtrial. But all the medical report stated was Rodasshould remain on his medication regimen “to maintain psychiatric stability and competency”and “to prevent mental decompensation and maintain competency related abilities.” Defense counsel at the May 10 hearing said that Rodas “apparently” wasn’t taking his medication and counsel might need a medical order. Even assuming 8 The cases Rodascites (People v. McPeters (1992) 2 Cal.4th 1148, superseded by statute as stated in People v. Boyce (2014) 59 Cal.4th 672, 707 & People v. Weaver (2001) 26 Cal.4th 876) to suggest that a stipulation was required before the court could proceed are inapposite. Those cases simply hold parties may stipulate to the court considering the issue of competency based on doctor reports, without violating a defendant’s due processrights. 12 Rodas stopped taking his medication, there was no showing of a consequent “mental decompensation”to the extent he was no longer competent. As wesaid, his defense counsel madenosuch representation or showing at the May 10, 2013 hearing. D. The March 18, 2014 hearing Rodas contends there was substantial evidence he was incompetentat the March 18, 2014 hearing, and proceedings should have been adjourned then. To the contrary, Judge Perry was not presented with substantial evidence of Rodas’s incompetence, and the court therefore had no duty to conduct a further competency hearing. The evidence before Judge Perry consisted of defense counsel’s statements about her client’s conduct and Rodas’s statements to the court. Counsel’s description of her client’s note and behavior certainly suggested mental illness. Counsel’s comments, however, did not necessarily constitute substantial evidence of defendant’s incompetence. (People v. Mai, supra, 57 Cal.4th at p. 1033.) Instead, Rodas’s responses to Judge Perry suggested competence: Rodas knew he wasinajury trial; he recited the charges against him with precision; he knew that Ms. Telfer was defending him; he waswilling to help her; he wanted to go forward with trial; and he apologized for his “obstructive” and “belligerent” behavior. The record therefore showsthat Rodas understoodthe nature of the criminal proceedings and.could assist counsel in the conduct of a defensein rational manner.” This distinguishes Rodas from the defendant in People vy. Murdoch (2011) 194 Cal.App.4th 230. In Murdoch,after the defendant’s arraignment, competency proceedings were instituted. (/d. at p. 233.) Two experts concluded that the defendant ? Wereview the propriety ofa trial court’s ruling on competency based on the time it was made without reference to evidence produced later. (People v. Panah, supra, 35 Cal.4th at p. 434, fn. 10.) We note, however, that duringtrial the trial court and Rodas discussedhis right to testify several times, and Rodas’s responses were clear and appropriate. Counsel also represented that she explained Rodas’s rights, and he understood. 13 suffered from mental illness, but he was presently competent due to his medication. (Ibid.) The doctors noted that the defendant had stopped taking his medication and warned of decompensationifhe continuedto refuse medication. (Jd. at pp. 233, 237.) Just before opening arguments, the self-represented defendanttold the court his defense was the victim was not human. Duringtrial, he defended himself on that theory. (/d. at pp. 234-235.) The defendant’s “statements taken together with the experts’ reports provide the substantial evidence necessary to demonstrate a reasonable doubtas to whetherhe had in fact decompensated and become incompetentas the experts had warned.” (/d. at p. 238.) The trial court therefore erred in not conducting a hearing to determine the defendant’s competence. Although the 2013 medical report about Rodas, like the report in Murdoch, connected taking medication to maintaining competence,” Rodas’s characterization of the report as “conditioning” competence on maintaining his medication regimenis an overstatement. The defendant in Murphy hadalready stopped taking his medication at the time the medical report was authored and was showing signs of decompensation. The only medical report about Rodas is the one from 2013. There was no current medical report from 2014 describing the effect, if any, of Rodas’s failure to take his medication. Rodasthusasksusto assign a significanceto his failure to take medicationthatis not in the record. And although Rodas beganto use the “word salad”that typified his prior descentinto section 1368 status, he nonetheless demonstrated an understanding ofthe nature of the criminal proceedings and a willingness to assist counsel with his defense in a rational manner when questioned by the court. That understanding—nothis verbiage— 10 The coverletter, signed by Atascadero State Hospital’s medical director, stated, “{Rodas] is being returned to court on psychotropic medication. It is important that the individual remain on this medication for his own personal benefit and to enable him to be certified under Section 1372... .” Rodas was then compliant with his medications and should “remain on his current medication regimen to maintain psychiatric stability and competency” and to “prevent mental decompensation and maintain competency related abilities while he waits to return to court”. 14 is the sine qua non of competence. We therefore cannotfind that the court erred by failing to conduct a further competency hearing. II. Expert testimony . Next, Rodas contendsthat the trial court prejudicially erred by allowing the prosecution to elicit Dr. Morris’s opinion that Rodashadthe specific intent to commit the crimes. We disagree. A. Dr. Morris’s testimony On direct examination, Dr. Morris testified that schizophrenia can cause impulsivity and affect reasoning and logic. Schizophrenics have trouble with their “executive functioning,” whichis the ability to weigh pros and cons of any decision and whether to act on an impulse. They can also have delusionsrelated to identity and have memory problems. On cross-examination, the prosecutor asked Dr. Morris whether a way to determine if someone is schizophrenic is to examineif they are “goal-oriented.” The doctor respondedthat schizophrenia affects different parts of functioning, so “[i]t doesn’t necessarily make a person globally incompetent to do anything in their life on any level.” It “dependsonthe situation.” A schizophrenic person can make a “plan.” The prosecutor then suggested a hypothetical: “{The prosecutor]: ... If a person plans on killing somebody, he wakesupthat morning and he armshimself with a knife. Okay. And not a wet noodleor a nerf knife. That person has taken a small step towards achieving the goalofkilling somebody,is that correct, and he’s planning; is that correct? “A. Potentially, yes. “Q. And that person then takes that same knife and instead of wielding it out in the open where everybodycanseeit, but conceals that knife on that person’s arm or something like that where it can’t be seen by the public in an effort towards achieving the goal of killing somebody, that person is taking yet another step towardsthat ultimate plan 15 of killing somebody. That person is not disorganized, but that person is planning; is that correct? “A. I would object to saying whether — depending on the person, they still could be disorganized. A personcanstill have somelevel of planning. The twothingsare not mutually exclusive. . . . “TH --- “Q. ...[H]e can be globally suffering from a mentalillness as yousay, but in that aspect, in that tiny aspect in his life he’s goal oriented; is that correct? “A. Potentially, depending on whatthe goal is. Andifthere’s a level ofparanoia that’s driving the behavior, if the person thinks that someoneis trying to hurt them. You haveto factorin all those things. “Q. But even if that person suffers from paranoia, assuming that you’re right and that that person in this hypothetical suffers from paranoia and he thinks that the person may be hurting him or something, regardlessofthat, if he takes the step in killing the person that he thinks is going to kill him and he takes small steps in achieving that goal, he still is planning, he’s goal oriented.24) “..-11 “Q. Evenifthe person is hearing voices, right, in this hypothetical, and he takes steps towards eliminating the personthat hethinks is goingtokill him, he’s still taking tiny steps and planning toward — to achievethat goal of killing a person; right? I mean, he hasto plan it out? “A. Potentially, yes. “Q. In that same hypothetical, that person not only conceals the knife, but looks for an opportunity where nobody’s around before the person takes theact in killing the victim. That person is thinking methodically and planning outhis course ofaction, goal oriented; is that correct?” " Defense counsel’s objection that the question called for a legal conclusion was overruled. 16 Defense counsel objected that the hypothetical assumed a fact not in evidence and wentto the “legal conclusion in this case.” At sidebar, the trial court told the prosecutor to “tighten your questions up”and that the questions were better argued to the jury. Back before the jury, Dr. Morris agreed that a mentally ill person can form the intent to commit crimes. He also agreed that whetherthe person is goal-oriented is “part of’ the way to assess whether a mentally ill person has the specific intent to commit crimes. B. Dr. Morris did not testify that Rodas premeditated and deliberated. California law permits a person with “special knowledge, skill, experience, training, or education”in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (Evid. Code, § 801). A trial court has broad discretion to admit or exclude expert testimony. (People v. McDowell (2012) 54 Cal.4th 395, 426.) But the testimony experts may provide in criminal casesis limited. Section 28, subdivision (a), for example, prohibits “{e]vidence of mental disease, mental defect, or mental disorder . . . to show or negate the capacity to form any mentalstate, including, but not limited to” intent, premeditation, deliberation or malice aforethought. Such evidence “is admissible solely on the issue ofwhetheror not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (/bid.) Section 29 prohibits an expert testifying about a defendant’s mental illness from discussing “whether the defendant had or did not have the required mentalstates . . . for the crimes charged,” a question that is reserved for the trier of fact. (See also People v. Coddington (2000) 23 Cal.4th 529, 582, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1327.) To ask whether a hypothetical avatar in the defendant’s circumstances would have had the specific intent required for a crimeis the functional equivalent of asking whetherthe defendant had that intent. (Bordelon, at p. 1327.) Such a hypothetical would therefore violate section 29. (Bordelon, at p. 1327; see People v. Larsen (2012) 205 Cal.App.4th 17 810, 828 [testimony about hypothetical situations similar to the actual case would “come dangerously closeto the territory precluded by sections 28 and 29”}. ) Rodascontendsthat the prosecutor’s hypotheticals violated section 29 and Bordelon, because they elicited an opinion that Rodas premeditated and deliberated. The hypotheticals, however, were appropriate tools of impeachmentto attack Dr. Morris’s suggestion on direct examination that a schizophrenic is impulsive and lacks reasoning and logic. The prosecutor countered that suggestion with questions designed to show that a schizophrenic can be “goal-oriented” and can plan. He therefore asked aboutspecific acts a hypothetical person might take, for example, arming himselfwith a knife and concealing it. Could such acts, the prosecutor asked, show that the person is planning? Ofcourse, the suggestion implicit in the questions was that a person who engagesin such acts or “planning” can premeditate and deliberate a murder. (See generally People v. Gonzalez (2012) 54 Cal.4th 643, 663-664 [planning activity is evidence ofpremeditation and deliberation].) But establishing that a person with schizophrenia can planis not the same as asking whetherthis hypothetical person premeditated and deliberated. The prosecutor stopped short of asking that question.’ We therefore discern noerror. Ill. Corrections to the abstract of judgment. The abstract ofjudgmentfails to reflect the one-year terms imposed under section 12022, subdivision (b)(1), as to counts 1, 2 and 4. The abstract ofjudgmentalso incorrectly states that one-year terms under section 12022.7, subdivision (a), were imposed on counts 2 and 4. The abstract ofjudgment must be modified accordingly. v The hypothetical that perhaps cameclosest to the line drawn by section 29 wasthe last one: “[TJhat person not only conceals the knife, but looks for an opportunity where nobody’s around before the person takesthe actin killing the victim. That person is thinking methodically and planning outhis course of action, goal oriented; is that correct?” But defense counsel objected, and it went unanswered. 18 ery DISPOSITION The abstract ofjudgmentis modified to strike the one-year terms imposed under section 12022.7 as to counts 2 and 4. The abstract ofjudgment is modified to reflect that one-year terms were imposed undersection 12022, subdivision (b)(1) as to counts 1, 2 and 4. The clerk of the superior court is directed to modify the abstract ofjudgment and to forward the modified abstract to the Department of Corrections and Rehabilitation. The judgmentis affirmed as modified. _NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ALDRICH,J. Weconcur: EDMON,P.J. LAVIN,J. 19 DECLARATION OF PROOF OF SERVICE I, Joanna McKim,declarethat: I am a memberofthe State Bar of California and attomey of record in this proceeding. I am over the age of 18 years, not a party to this action, and my place of employmentis in San Diego, California. My business address is P.O. Box 19493, San Diego, California, On Sept. _, 2016 I served the documentdescribedas: Re: Appellant’s Petition for Review, People v. Rodas, B255598/BA360125 on the interested party/parties in this action as set forth below: _x__ (By Mail) I caused such copies of the documentto be sealed in an envelope and deposited such envelope in the United States mail in San Diego, California. The envelope was mailed with postage thereon fully prepaid addressedto: Office of the Attorney General, E-service 300 South Spring St. Los Angeles, CA 90013 CAP-LA, E-service 520 S. Grand Ave. 4" FI. Los Angeles, CA 90071 Superior Court 210 W. TempleSt. Los Angeles, CA 90012 Court of Appeal 300 S. Spring St. Second FI. Los Angeles, CA 90013 Domingo Rodas, AT3891 PVSP POB 8500 Coalinga, CA 93210 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on Sept. _, 2016 in San Diego, California. Joanna McKim