Opinion
F070000
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. GARY ALTON ASBERRY, JR., Defendant and Appellant.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF144270A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. William P. Lamb and John W. Lua, Judges. Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Retired judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge Lamb presided over the competency proceedings; Judge Lua presided over the jury trial and imposed sentencing.
-ooOoo-
Defendant Gary Alton Asberry, Jr., was convicted of first-degree special-circumstance gang murder of Christopher Gonzales, attempted murder of Andrew Gonzales, and being an active member of a criminal street gang; he was sentenced to life without the possibility of parole. The surviving victim testified that Asberry's older brother and fellow gang member handed Asberry the gun with which Asberry shot the victims. Asberry is mentally retarded and was 18 years old when the crimes were committed in 2012.
After a competency hearing that included three days of testimony and the opinions of three psychologists, the court found Asberry competent to stand trial. Two of the psychologists opined that Asberry was mentally retarded and incompetent. One opined that he was competent and not mentally retarded. The trial court relied on none of these opinions, however. Instead, it first accepted the finding that Asberry was mentally retarded. Then it selected certain statements from the report of one of the experts who found Asberry incompetent and ruled that these statements supported a finding that Asberry really was competent despite his cognitive impairment.
In our view, the court's finding was not supported by sufficient evidence. The record established that Asberry was mentally retarded and the People make no attempt in this appeal to argue otherwise. There is no rule that all mentally retarded defendants are incompetent, but in this case the record shows Asberry was incompetent and contains very little evidence of solid value to support the view that, on the contrary, he was competent in spite of his impairment. The selected portions of the report the court relied on lack the substantiality necessary to do the job.
Further, the trial court orally expressed dissatisfaction with the opinion of the expert who found Asberry competent. In its written statement of decision, the court did not rely on that opinion at all. The court was right to treat the opinion in that way, for it was poorly reasoned and ill-supported. Neither it nor any other evidence in the record provides a basis for finding the judgment to be supported by sufficient evidence.
We will reverse the judgment.
FACTS AND PROCEDURAL HISTORY
Prior appeal
This is the second appeal we have considered in connection with these crimes. In an opinion issued September 1, 2015, we affirmed the conviction of Asberry's older brother, Aloysius Asberry, for second-degree murder and attempted murder. (People v. Asberry (Sept. 1, 2015, F067710) [nonpub. opn.].) A full account of the facts of the offenses (albeit from a separate trial) can be found in that opinion. We omit such an account here, since we are disposing of the appeal on the basis of the competency issue alone.
Initial proceedings
On September 28, 2012, Asberry, his half-brother Aloysius Asberry, Peter Collins, and Mary Graham were charged by complaint with the shootings of Christopher and Andrew Gonzales. The complaint charged Asberry with three counts: (1) murder (Pen. Code § 187, subd. (a)); (2) attempted murder (§§ 187, subd. (a), 664); and (3) active participation in a criminal street gang (§ 186.22, subd. (a)). In connection with the murder count, the complaint alleged the gang murder special circumstance. (§ 190.2, subd. (a)(22).) It alleged that the murder and attempted murder were deliberate and premeditated (§ 189) and were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). It also alleged that Asberry intentionally and personally discharged a firearm causing great bodily injury or death in committing the murder and the attempted murder (§ 12022.53, subd. (d)), and personally used a firearm in actively participating in a criminal street gang (§ 12022.5, subd. (a)).
Subsequent statutory references are to the Penal Code unless otherwise noted.
At a hearing on November 27, 2012, prior to the preliminary hearing, Asberry's trial counsel invoked section 1368, declaring a belief that Asberry might be mentally incompetent to stand trial. The court suspended the criminal proceedings and appointed psychologist Gary Longwith to evaluate Asberry. Report of Dr. Gary Longwith
Longwith's report was filed in the trial court on December 27, 2012. It stated that Longwith reviewed Asberry's mental health records and met with him at the jail for one and a half to two hours on December 7, 2012.
The mental health records Longwith reviewed consisted of one note made when Asberry was under the supervision of the juvenile authorities in 2009 and several others made in 2012 while he was in custody for the current offenses. These notes indicated that in 2009, Asberry had previously been diagnosed with attention deficit hyperactivity disorder and obsessive-compulsive disorder, and had once received a head injury that might have caused his brain to be deprived of oxygen. He was assigned a global assessment of functioning (GAF) of 35. The GAF, a measure no longer used under the current Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (5th ed. 2013) (DSM-V), is a general measure of a person's social and psychological functioning and ability to function in everyday life. The GAF scale goes up to 100. A GAF of 35 indicates a low level of functioning.
As will be seen, two other experts' reports describing the same 2009 note state that this diagnosis is oppositional-defiant disorder, not obsessive-compulsive disorder. The 2009 note itself is not included in the appellate record.
The notes made in 2012 included diagnoses of depression not otherwise specified (NOS) and psychosis NOS. They described Asberry's affect as flat, and reported his consistent statements that he heard voices. He said he had been hearing them for three years, since he was 15. On one date, Asberry said he had both auditory and visual hallucinations: he heard voices that told him to hurt people and he saw demons. He agreed to a verbal safety contract stating that he would not hurt anyone. It was determined that he had been prescribed Wellbutrin and Trazodone for depression on a prior occasion, before his arrest for the current offenses, while in custody in juvenile hall. While in jail currently, he was prescribed Remeron to help him sleep. His GAF was found to be 45 on October 29, 2012. In Longwith's view, a GAF of 45 indicates moderate to severe trouble with activities of daily living.
When Asberry appeared for his evaluation by Longwith, he was disheveled. He was wearing his shirt backwards, his hair was dirty, and there was something that looked like toothpaste on his cheeks and forehead. Longwith described Asberry's posture and gait as slumped, slow and impoverished, and his motor activity as retarded. Asberry spoke monosyllabically, made poor eye contact, and constantly pulled at his hair. He was frequently unable to focus on the questions put to him and the tasks he was asked to perform for purposes of the evaluation. Longwith described his attention, concentration, orientation and recall as poor. "It was evident early-on in the assessment there was some type of cognitive and/or other interference in his ability to stay in the moment," Longwith wrote. Asberry's affect was blunted, his attitude toward the examiner was indifferent and uninterested, his thought content was confused, and he seemed distracted by internal stimuli. Asberry was small and appeared younger than his actual age; Longwith estimated his height to be five feet three or four inches. (Asberry's height and weight as stated in the probation report were only 4 feet 8 inches and 110 pounds. His date of birth is March 19, 1994, so he was 18 years old when Longwith evaluated him.)
Longwith interviewed Asberry. Asberry knew he was born in Bakersfield, and was raised by his mother, who never married his father but did marry someone else at some point. He did not know anything about his mother's family history and had no information about his father's family. He had no information about his birth, developmental milestones, in utero problems, or exposure in utero to any harmful agents. He could not give information about his physical health history, except that he was in a car accident at some time between 10 and 18 years of age. He did not know what injuries he might have suffered in the accident. He did not mention his asthma. He said he was arrested once for not going to school and was sent to a juvenile camp for stealing a car, but could not give other information on his legal history. He said he was involved in gang activity with the Country Boys, to which other members of his family belonged. He had a brother who was killed in a gang-related incident. Regarding his psychological history, Asberry said he first received mental health care when he was 16 years old. He began to hear voices around then, which told him to do both good things and bad things. The voices bothered him a lot. He was depressed. He knew the names of his medications, which he said helped him somewhat but gave him a sleepy and slow feeling he did not like.
Asberry told Longwith he attended school at Rafer Johnson Children's Center at some point during his childhood. He did not remember how old he was then. Rafer Johnson Children's Center is a special needs school for children with disabilities ranging from mild to severe; all the students there have disabilities.
Longwith's report included results of three psychological tests Longwith administered to Asberry: the Wechsler Abbreviated Scale of Intelligence (WASI), the Miller Forensic Assessment of Symptoms Test (M-FAST), and the Evaluation of Competency to Stand Trial-Revised (ECST-R).
The WASI is a brief intelligence test. The results showed Asberry's IQ to be 55, which, being below 70, indicated mental retardation. The report noted that the "score may not be an accurate representation of [Asberry's] actual IQ due to his psychosis."
The M-FAST is designed to detect malingering, i.e., feigning psychological symptoms. The report explained that if a patient scores above six on this test, a finding of malingering should be considered, but only in light of the other evidence gathered by the examiner, including the clinical interview. Asberry's score was 10 and the report stated that this "suggest[s] obvious evidence of dissimulation." (Italics omitted.)
The ECST-R is a "semi-structured systematic examination" designed to measure the patient's ability to consult with counsel, factual and rational understanding of the courtroom environment, and overall rational ability. The patient's responses to the test questions can be used to compile a numerical score, but Longwith did not do this. Instead, he wrote the following paragraph based on Asberry's responses:
"[Asberry] is not aware of the name of his attorney. He described his attorney as a short man and like a child further characterized him in a positive manner. There was an immediate and obvious issue regarding [his] ability to communicate with his attorney. When asked what he expected from his attorney the defendant replied[,] 'to take me to my family.' [Asberry] could not explain how his attorney might help him reunite with his family using the legal system. The same was true when asked what his attorney expected from him to help in his own defense. He did not know and stated 'talk more—will have an idea of what he wants.' He was unable to talk about agreements or disagreements between him and his attorney or how he might settle any conflicts other than to say, 'No'. [He] denied unusual and/or psychotic issues related to communicating with his attorney. He is, however, as evidenced by this assessment extremely inattentive, frequently non-responsive, and it was necessary to frequently restate questions while attempting to hold his attention. He appeared highly distracted by internal stimuli and/or other dissociative-like events. With regard to [Asberry's] understanding of the facts of this case he was not able to articulate who is in charge of the court or the responsibility of the [j]udge. He was unable to verbalize the role of his attorney or the role of the district attorney. I attempted to educate him on some of the factual issues and when I asked him what he learned the defendant was still not able to provide the information. The defendant was not able to articulate his charges and seemed to be oblivious to the reason for his incarceration. I attempted to outright confront him on this issue to no avail. The defendant was able to state, however, according to what other inmates have told him, 'They told me I hurt somebody. They tell me I'm going to be here a long time'. He was only able to state he must be there because he did 'bad stuff. I didn't do anything. I told my mom why am I here for—tell me you hurt somebody'. He then stated, 'I don't want to be here. I want to go home.' [Asberry] was not able to talk about the jury or the responsibility invested in a jury. He was not aware of the dangers associated with talking to the district attorney without his attorney present etcetera."
Finally, the report presented Longwith's conclusions. He diagnosed Asberry with mental retardation and with schizophrenia, paranoid type, childhood onset. Asberry's history of mental health problems was long and his current mental illness was serious. He was likely to need psychiatric care and assistance with independent living for the rest of his life. He probably could not be successfully treated on an outpatient basis. Without psychotropic medication, he would suffer serious harm. His mental illness and developmental disability made him a high risk of harm to himself and others. Longwith also believed there was a possibility Asberry could plausibly plead not guilty by reason of insanity: "[Asberry's] presentation and what we know about him would also suggest a possible M'Na[]ghten issue that must be ruled-out."
On the ultimate question the evaluation was ordered to answer, Longwith found that Asberry was not mentally competent to stand trial, as he was not capable of assisting counsel in defending him. Further, medication alone would not render him competent, and it was "highly questionable" whether treatment in a state hospital could do so.
At a hearing on January 8, 2013, the trial court proposed to find Asberry not competent based on Longwith's report. The People asked the court to appoint another evaluator to give a second opinion, and stated that if this was not done, they would demand a jury trial on the competency determination. The court granted the request for a second evaluator. It appointed Kathe Lundgren. Report of Dr. Kathe Lundgren
This hearing was before Judge Michael G. Bush. The hearing on November 27, 2012, at which Longwith was appointed, was before Judge Charles R. Brehmer. The remainder of the competency proceedings discussed in this opinion were before Judge Lamb.
Lundgren's report was filed in the trial court on February 11, 2013. Lundgren reviewed Asberry's records and met with him at the jail for three hours in February 2013.
The records Lundgren reviewed were the same as those reviewed by Longwith, except that Lundgren also reviewed notes made on December 21, 2012, and January 18, 2013. These indicated that Asberry was still reporting that he was depressed and was hearing voices that told him good and bad things. Risperdal was added to his medication regimen on December 21, 2012. Regarding the 2009 note, Lundgren stated that the diagnoses reported were attention deficit disorder and oppositional defiant disorder. Unlike the medications prescribed previously, Risperdal is an antipsychotic. Lundgren's account of the reports makes clear that Asberry actually last received the Wellbutrin and Trazodone a number of months before his arrest, and the only medications he had received while in jail awaiting trial for the current offenses up to the time of her evaluation were Remeron for sleep and the antipsychotic Risperdal.
When Asberry appeared for his interview, Lundgren found him clean and neat. He was not hyperactive, but he was irritable, impatient, and inattentive. He was "extremely small," but looked taller than the 4 feet 8 inches stated in the probation report.
Asberry told Lundgren that before his arrest, he had been attending a school called CL Tech. She asked if this was a vocational school and whether he was learning a trade. He did not understand the question. She then asked if he was learning to be something like a mechanic or a welder. He said no, he was learning reading and math. He said it was a " 'regular school.' "
Regarding his medications, Asberry told Lundgren the pills he took before his arrest (the Wellbutrin and Trazodone) helped him to focus and not be hyper. Those he was taking in jail, by contrast—the Remeron and Risperdal—" 'don't feel like nothin'. ' " The Remeron helped him sleep sometimes, but he still woke up in the night. In the report, Lundgren opined that there was a conflict between Asberry's claim that he heard voices and his claim that the Risperdal did not help him—while the Wellbutrin and Trazodone did help—because Risperdal is designed to mitigate psychotic symptoms and Wellbutrin and Trazodone are not.
Lundgren asked Asberry about work. He had never had a job. She asked what he would like to be and he said a football player. He had never played football on a school team or casually with other children, however. When she asked what other job he might like, what he was good at or what talents he had, he said he did not know. When she asked if he could draw he said he could.
Lundgren asked Asberry for his opinion about a then-recent incident in which a power outage interrupted the Super Bowl game between the Baltimore Ravens and the San Francisco 49'ers. The 49'ers were losing when the power went out. Lundgren wrote that Asberry was "able to see the probable controversy if the Ravens had not won" when the 49'ers had a partial comeback after the power outage. Regarding the 49'ers' partial comeback, Asberry said, " 'I think they got scared and just got it together. They was lucky [']cuz[] they had time to see what was happening and do something about it.' "
Asberry told Lundgren he lived with his mother and they took care of his grandmother. His mother took some kind of medication. The grandmother had some kind of heart condition and diabetes. She was picked up by a van and taken to dialysis. Asberry is his mother's only child but he has many half-siblings on this father's side. His father lived in town and Asberry saw him regularly. Asberry mentioned an annual family reunion at which he saw his relatives. Lundgren asked if this meant he got to see all his " 'cousins.' " Asberry said, " 'No, they are my half brothers and sisters. My halves.' "
Asberry said he had a girlfriend when he was 15 or 16. She moved away and he had not heard from her since.
Asberry told Lundberg about the voices he heard. He said the voices never go away, but he did not believe they came from a source external to his mind. The voices were not consistent in the kinds of things they said (sometimes bad things, sometimes fun things). They sometimes told Asberry to hurt people, but Lundberg received negative responses when she inquired about whether the voices imparted to Asberry a sense of a purpose or mission.
Lundgren administered the Kaufman Brief Intelligence Test 2 (K-BIT 2), the Structured Test of Malingered Symptomatology (SIMS), the Arrow-Dot Test, and the Competency Assessment Instrument (CAI). Lundgren's report characterized Asberry's "effort" on the tests as "very poor." Consistent with a note in one of the prior reports, Asberry said he could not read, so Lundgren read the test questions to him. She observed, however, that he followed written instructions in one instance without being told, so she assumed he must have been able to read enough to understand those instructions.
According to the K-BIT 2 results, Asberry's IQ was between 71 and 85, which was below average and would support a diagnosis of borderline intellectual functioning. His lowest performance was on the vocabulary portion; he did better on riddles and better still on the nonverbal section. He took the test very slowly. It "took a long time to get the answers out of him, making the total amount of time spent much greater than the score would indicate." Lundgren believed Asberry would have scored higher had he tried harder and her comments indicated she thought he did poorly on purpose: She wrote that he showed interest in a few questions but then became hesitant and refused to answer without repeated prompting. Lundgren believed this meant "he thought [it] was not a very good idea" to do well. He "would score a few more points had he tried harder." Apparently overlooking the 2009 GAF of 35, Lundgren commented that the prior reports she reviewed did not indicate impaired intellectual functioning.
In the report, Lundgren admitted she departed from the testing protocol when she administered the K-BIT 2. She wrote that she praised Asberry when he did well and that this "seemed to fuel him and keep him motivated longer." When she stopped, his interest waned. "However," she confessed, "this is not supposed to be done during a test like this . . . ."
The SIMS tests for malingering by asking 75 true-or-false questions designed to indicate whether the patient is exaggerating or inventing symptoms. The test has five categories of possible feigned symptoms, each with a cutoff score above which a finding of malingering should be considered for that category; and there is a total cutoff score above which an overall finding of malingering should be considered. The overall cutoff score was 14. Asberry's overall score was 41. He also exceeded the cutoff score for each category. Lundgren wrote that the results of the test were consistent with the clinical interview.
The Arrow-Dot Test, as described in Lundgren's report, presents the patient with a number of diagrams each including an arrow, a dot, and various obstacles. The instructions require the patient to draw the shortest line in each diagram from the tip of the arrow to the dot, while following certain rules. For instance, the patient is forbidden to draw a line through a thick barrier, and told not to draw a line through a thin barrier unless there is no other route to the dot. Asberry failed to find the shortest route consistent with the rules in 15 out of 20 problems. One problem was designed to have no solution, as the dot could not be reached without crossing a thick barrier. Asberry told Lundgren he did not know what to do on that problem.
Lundgren's report did not explain what psychological or mental properties the Arrow-Dot Test is designed to measure or what her purpose was in administering the test. But her remarks appeared to treat the test as if it were a measure of malingering with respect to intellectual impairment, or at least a way of showing Asberry was smarter than he seemed. She wrote that on the few problems Asberry completed correctly, his solution was "creative and unique," yet on the majority of the problems he performed "carelessly" and was "not paying any attention" to finding a correct solution. From this she concluded he was "capable, but careless." She added that "it appears that unless he sees that there is some benefit to him, he does not have the reason to try to do well."
The CAI Lundgren administered appears not to have been a quantitative, scored test. Instead, it seems to have been simply a series of questions, and the results seem to have been Asberry's answers and Lundgren's interpretations of them. Lundgren asked him about his legal history. Ignoring his juvenile record, he said it was his first arrest and his first time being incarcerated. (According to the probation report, he had spent time at juvenile hall, Camp Erwin Owen, and the Kern Crossroads Facility.) She asked what he had been charged with and he said he did not know; he also said the authorities had the wrong person and he did not do anything. While discussing his arrest, Lundgren asked "if his mother tried to stop the cops from taking him if he didn't do anything wrong." Asberry said she could do nothing. Lundgren asked if "there was someone out there who looks just like him." Asberry looked puzzled and said he did not know. Lundgren asked where Asberry was at the time of the crime. Asberry said he was at home with his mother and grandmother. To see if Asberry would be able to help his attorney with the facts, Lundgren asked him to draw a time line indicating what he was doing at home with his mother and grandmother on the day of the shootings, including such points as when the van came to take his grandmother to dialysis and when they had lunch. Asberry responded by saying he wanted to leave.
Lundgren showed Asberry a picture of a courtroom. She wrote that he "was able to identify the courtroom personnel," but did not know that the jury would be seated in the jury box. Instead, he thought of the jury box as the place where he and other prisoners sat during his arraignment, and he "had a hard time understanding that during a trial this would not happen." Asberry did not remember his attorney's name at first, but recognized it when Lundgren told it to him. He said he did not know what strategy or plan the attorney had for his defense because the attorney did not talk to him. When Lundgren asked if there was anything he could tell the attorney to help him with his case, Asberry again said the attorney did not talk to him.
Lundgren's report never explicitly stated whether Asberry's performance on the CAI was indicative of competence or a lack thereof. His responses to her questions seemed to be characterized largely by passivity and ignorance, but her remarks seem to imply that she did not accept that those responses revealed his actual condition.
In her findings, Lundgren included diagnoses of malingering, attention deficit hyperactivity disorder NOS, mood disorder NOS, and antisocial personality disorder. She also indicated that borderline intellectual functioning had not been ruled out by her testing. Lundgren assigned Asberry a GAF of 55. She believed he needed to live in a structured and monitored environment because he was subject to violent outbursts and was a danger to others.
In their appellate brief, the People misinterpret this rule-out diagnosis, wrongly stating that Lundgren " 'rule[d] out' " borderline intellectual functioning. A rule-out diagnosis of a condition does not rule the condition out. It indicates that the condition could be present and further examination is necessary before it can be ruled out. (Sloane-Dorland Annot. Medical-Legal Dict. (1992 Supp.) p. 464, col. 2; Williams v. U. S. (S.D.N.Y. 1990) 747 F.Supp. 967, 978, fn. 19.)
Finally, Lundgren opined that Asberry was competent. In effect, she concluded that his poor performance on her tests was willful and concealed underlying abilities:
"Mr. Asberry is recommended to be found COMPETENT to stand trial. He is capable of cooperating with his attorney. Whether or not he is willing to do so is not the question. He is capable of helping with legal strategy. He chose to deceive the evaluator regarding his past legal history, exaggerated his symptom[a]tology, and overall showed the capability of doing what was needed to 'protect himself.' "
At another place in the report, another paragraph summarizing Lundgren's findings again emphasized her view that Asberry concealed his real condition by seeming to lack knowledge and understanding and by misrepresenting his psychological symptoms:
"Although he does suffer from some intellectual deficiencies, attention deficiencies, they do not impede with [sic] his ability to cooperate with counsel or to understand charges against him. Furthermore, he recently complained of some psychotic symptoms, such as hearing voices, and had been medicated for this symptom and reports no change. The nature of his complaint, again, does not impede his ability to cooperate with counsel or to understand [the] charges against him. His reports of 'I don't remember and I don't know', are not consistent with any type of neurological or psychiatric condition, consistent with his history."
Longwith and Lundgren appeared at a hearing that took place over three days from October 15 to 17, 2013, and included testimony by Asberry's mother and aunt and additional expert testimony by attorney Fred Gagliardini. Longwith and Lundgren gave testimony consistent with their reports.
Longwith's testimony
Longwith said yes when the prosecutor asked if Asberry's disheveled appearance during his interview could just mean Asberry was a slob. He also affirmed that Asberry's inattentiveness, monosyllabic responses, and apparent lack of information about his own childhood and his parents could indicate a lack of desire to participate in the interview rather than depression or a cognitive deficiency. In connection with Asberry's statement that he attended Rafer Johnson Children's Center, Longwith commented that Asberry knew he went there because there was something wrong with him, but could give no information about what was wrong with him. Longwith said most people with disabilities that result in their being sent to special schools can articulate at least minimal information about the kind of condition they have. He conceded again, though, that it could be the case that Asberry simply did not want to talk about it.
Longwith explained that the IQ score Asberry received could have been affected by factors other than intelligence. A lack of attention and concentration could be a factor, as could a lack of willingness to cooperate.
The court asked Longwith whether malingering requires "a certain degree of cleverness or sophistication." Longwith said no, most malingerers are unsophisticated, make numerous mistakes, and say things inconsistent with their backgrounds as shown in their records. For this reason, Asberry's high score on the malingering test, the M-FAST, was not necessarily inconsistent with his low IQ score. Longwith explained, however, that Asberry's malingering score could have been artificially pushed upward by his failure to grasp the questions. Longwith often had to repeat and rephrase the questions to get Asberry to understand. He did not think Asberry was pretending not to understand. Further, because malingering tests are based on questions about symptoms, a patient with real symptoms and answering truthfully about them will accumulate some points from that alone. For instance, Asberry had a history of depression and got a point for answering yes to a question that asked whether he was depressed more often than not. To determine whether an elevated score on a malingering test truly supports a finding of malingering, it is necessary to analyze all available information about a patient's condition in light of the possibility of malingering. The test results only trigger this analysis.
In response to a question whether it was indicative of malingering for a person accused of murder to claim not to know why he was in jail, Longwith testified that it was "unusual."
The court asked whether Longwith saw any indications of malingering in Asberry's performance on the IQ test. Longwith said no. There was nothing in Asberry's wrong answers that suggested he was getting them wrong intentionally.
Longwith was asked what he thought Asberry meant when he said his attorney's task was to take him to his family. Longwith agreed with suggestions from the prosecutor and the court that Asberry seemed to mean it was the attorney's job to get him released so he could go home. Longwith also agreed that the quote in the report regarding what Asberry would do to help his attorney (" 'talk more—will have an idea of what he wants' " meant Asberry thought he could communicate with the attorney and find out what the attorney wanted from him.
The prosecutor asked Longwith for the basis of his diagnosis of childhood-onset schizophrenia. Longwith said it was based on his review of the prior psychological reports, the IQ test, Asberry's report that he attended Rafer Johnson Children's Center, and Asberry's statements in the reports and currently that he heard voices, which sometimes told him to hurt people. The prior reports included a diagnosis of psychotic disorder NOS, and Longwith believed the records and Asberry's statements justified narrowing this diagnosis to a specific psychotic disorder, schizophrenia. Longwith did not administer any tests specifically designed to help detect schizophrenia.
Longwith commented that he had not had access to any reports from the investigation of the crimes, so he could not take account of Asberry's behavior at the time of the events. This kind of information can be valuable in a competency evaluation, and Longwith might have been able to state his conclusions with greater confidence had he had it.
In concluding that Asberry could not be restored to competence with medication alone and possibly not at all, Longwith relied on indications of pervasive developmental delays and the possibility of a head injury as well as on the history of hallucinations going back to Asberry's early teens. These things "add up to make a pretty poor prognosis." That Asberry attended Rafer Johnson Children's Center, in particular, was an indication that he had a developmental disorder from birth, and except for controlling violence and behavioral outbursts with drugs, this would not be treatable.
The prosecutor asked Longwith why his diagnosis of mental retardation was provisional. Longwith said it was because the test he administered, the WAIS, was not a full IQ test battery, which would have taken more time. He described the WAIS as a "quick and dirty" IQ test. The court interjected that this phrase was "a pretty accurate evaluation of the evaluation."
Longwith was asked to distinguish between signs that a person is incapable of assisting counsel and signs that he is merely refusing to cooperate with counsel. He said, "Certainly [Asberry] cooperated with me to the best of his ability, and I would expect him to do that with counsel, as well. But in terms of actually understanding and assisting the attorney, I felt that based on the information I had at the time that that wasn't possible, given those circumstances." The court referred again to Asberry's remark that he could talk to his attorney and find out what the attorney needed. Longwith agreed that this meant Asberry did appreciate the need to try to communicate with his attorney.
After a conference in chambers, the court stated on the record that it and the parties had discussed having Longwith give more extensive IQ testing to Asberry. Defense counsel agreed to waive Asberry's right to be present while this was done. Asberry went with Longwith to complete this testing while Lundgren testified.
Lundgren's testimony
Lundgren testified that the diagnoses in Asberry's 2009 records of attention deficit disorder and oppositional defiant disorder were consistent with the Wellbutrin and Trazodone he had been prescribed and also with the fact that he had gotten in enough trouble to be sent to juvenile hall. At the same time, the lack of a diagnosis in those records of any intellectual functioning deficit was consistent with the lack of a referral to the county's regional center, since children with developmental disabilities ordinarily are referred there. She thought the lack of this referral must mean he did not have an IQ below 70.
Similarly, Lundgren testified that it was significant that the 2012 records did not indicate an immediate mental health screening when Asberry was booked. Asberry did not receive this screening until he had been in custody for about two weeks. Lundgren believed he would have been screened immediately if there had been "any kind of acute psychosis."
Regarding Asberry's long history of reporting that he heard voices saying he should harm people, Lundgren felt the symptoms were not as severe as they might have been. She pointed out that Asberry did not say the voices imparted to him a sense of a determined purpose or mission of carrying out their orders. She said she would expect a patient who heard voices to say the voices were communicating a "mission sent from God" or something similar. This type of symptom would be especially likely if Asberry had been schizophrenic. But he did not report such symptoms.
Lundgren thought it was significant that although Asberry said he had trouble sleeping, he did not have circles under his eyes.
Lundgren thought it was important that prior to the December 2012 Risperdal prescription, the drugs prescribed to Asberry were not antipsychotics. To her, this indicated that there must not have been any serious symptoms of psychosis up to that time. Then she discounted the significance of the Risperdal prescription that was eventually given on the ground that Asberry said the pills he had been taking while in custody (Remeron and Risperdal) did not feel like anything. She said the Risperdal "should have helped the psychotic symptoms" had they been real.
Lundgren was persuaded that Asberry's disheveled appearance at his interview with Longwith was a charade. She said this "is a common thing that's taught to inmates to prepare for a psych eval" so that they will "look crazy."
Asberry's housing placement in jail also indicated to Lundgren that he was not exhibiting signs of severe mental illness or extremely low functioning. He was not "in C pod, which is a psych unit," but was instead in D pod and F pod, where "one has to be pretty with it in order to survive" and "the inmate[s] won't put up with someone that's acting crazy."
Lundgren gave several reasons why she believed Asberry was pretending to have a lower level of intellectual functioning than his real level. First, when they were discussing Asberry's last school, CL Tech, Lundgren asked a series of questions about whether it was a vocational school. Asberry answered that he did not know several times, before finally saying the school was a "regular" one. Lundgren thought this statement revealed that Asberry had been concealing understanding of the topic under discussion until he "got frustrated" by her questions. Next, Lundgren testified that when she was asking him questions designed to test something, he often said he did not know, but when she engaged him in general conversation, he did not say that and seemed alert and aware. To Lundgren, this meant "he is trying to play to the test or trying to play to looking like he is ill." She said malingerers often make the mistake of seeming to have too many things wrong with them—"they try to put in a little retarded, a little brain damage, and then a little psychotic"—and this fails because "it doesn't go together right." Asberry seemed to Lundgren to be doing something of this kind.
Lundgren then explained that Asberry's remarks about his family revealed ability. He was able to correct her when she referred to cousins during a discussion of his half-siblings. He was able to talk about looking forward to being around his family members. He could describe his grandmother's need for dialysis and his helping her to get in her wheelchair. Likewise, Lundgren believed Asberry's statement regarding the Super Bowl was a "kind of cue that he was able to function at a higher level than what he was showing on the testing."
When Lundgren asked Asberry to write his name on one of the test papers, he held the pencil "like a paint brush" so that the writing was "kind of sketchy and scribbly." She compared this to other writing of his she found in his file; the other writing was neat. Asberry also spelled his last name wrong—with only one R—and Lundgren says that even people with severe developmental disabilities ordinarily do not do this. As in her report, Lundgren said she thought Asberry's performance on the IQ test did not reflect his real ability because he did better while she was violating the test protocol by praising him, and stopped trying when she was not. She thought he not only was not mentally retarded (below an IQ of 70), but even had greater intellectual ability than the below-average level, 75 to 91, in which his score fell.
The prosecutor questioned Lundgren about information she had told him she had received about Asberry asking to be tested for sexually transmitted diseases while in custody. This turned out not to be true; Lundgren said she did not know whether there was a request for testing for a sexually transmitted disease or whether Asberry asked for anything. Instead, she learned from records simply that a doctor had ordered Zithromax "which tells me that that's what it was." Zithromax, a trade name for azithromycin, is an antibiotic used to treat certain sexually transmitted bacterial infections, among other kinds of bacterial infections. (Taber's Cyclopedic Medical Dict. (20th ed. 2005) p. 210, col. 1.) Lundgren gave no testimony that Asberry asked for testing or test results, that he knew anything about sexually transmitted diseases, that it was he who identified a need for medicine, or what infection was treated with the drug. Despite the absence of any such information, Lundgren thought the existence of the Zithromax prescription revealed "a certain amount of competence." The court reminded her that "the use of the word 'competency' in these proceedings refers to a very specific type of competency involving understanding of court procedures and an ability to rationally assist and cooperate with an attorney in a legal context," as opposed to a capacity for "adaptation to life challenges" in general. The court stated that it did not believe the sort of competence associated with being concerned about contracting a disease was relevant to the proceedings.
Lundgren repeated that she considered it significant that the prior records she saw did not indicate any intellectual disability. An intellectual disability would have been noticed when Asberry was attending school at juvenile hall. The lack of a notation on this in the records indicated to Lundgren that "he was getting along okay in school there." When questioned about the fact that Asberry had attended Rafer Johnson Children's Center, however—a program for developmentally disabled children—Lundgren conceded she was "very surprised" and "baffled." She "c[ould]n't imagine" why he would not also have been referred to the regional center if he attended Rafer Johnson Children's Center.
In her testimony, Lundgren gave some description of the purpose of the Arrow-Dot Test. She said it tests "many things," including "impulsivity," "problem solving" and "being able to . . . follow a moral code." She thought Asberry understood the directions. Her conclusion from his failure to follow them was that "he doesn't really pay attention to the rules. They don't apply to him."
When testifying about the CAI, Lundgren reiterated the points she made in her report to the effect that Asberry understood the charges and could assist his attorney even though he claimed ignorance of the underlying events and said he wanted to leave when she tried to get him to make a time line. She added that Asberry's claim that he did not know anything about the crimes could be viewed as revealing an understanding of a possible line of defense.
Lundgren's diagnoses included antisocial personality disorder, a diagnosis not included in any of the records reviewed by the experts, in Longwith's report, or, as will be seen, in the report of the third expert, Craig West. We have not found any clearly stated basis for this diagnosis in Lundgren's report or testimony, though perhaps her inference from the Arrow-Dot Test that Asberry felt rules did not apply to him is relevant. (As we will explain later in this opinion, one of the required diagnostic criteria for antisocial personality disorder was absent from Asberry's record and Lundgren's belief that it was present was based on a simple mistake.) She did, however, have a use for the diagnosis. She testified that because people with antisocial personality disorder are manipulative, they are better at malingering, and more likely to malinger, than people without antisocial personality disorder. Further, a person with antisocial personality disorder could still be a good malingerer even if he had a low IQ.
In response to questioning by the court, Lundgren testified that a person with a serious mental illness, as well as a person with an IQ below 70, can also be a malingerer; and this is especially so if one of the person's illnesses is antisocial personality disorder, which has deceptiveness and manipulativeness as symptoms. Further, such a person can be incompetent. The conclusion that a person is malingering—i.e., trying to appear incompetent—is not inconsistent with a finding that the person really is incompetent. She felt Asberry, however, was not such a case. In her view, he was competent and was malingering to hide his competence.
Other witnesses
The defense called witnesses Elizabeth Anderson (Asberry's mother), Patricia Ragsdale (his aunt), and Fred Gagliardini (a criminal defense lawyer with experience of competency proceedings). Anderson testified that Asberry did not speak until he was almost four years old and received speech therapy until kindergarten. He was diagnosed with attention deficit hyperactivity disorder and given medication before he began school, around age five. He began receiving mental health services from Kern County Mental Health when he was around six. About the same time, he was diagnosed with a condition Anderson could only remember as "schizo something." He attended preschool without incident but got in trouble in kindergarten for saying he would blow up the school. He was expelled. He was not permitted to attend regular public schools in Kern County again until second grade. In second grade, he was frequently suspended and again ended up outside the public school system. In the school to which he was sent, which Anderson described as a "probation school," he was often in trouble for fighting with other children and disrespecting teachers. He performed poorly in school and was in trouble there throughout his childhood. He began hearing voices and seeming to react to people who were not there when he was about eight years old. He was given Trazodone, but it did not stop the voices. When he was eight or nine, he fell off a moped and hit his head, leading to a hospital stay. He had a head injury, but Anderson did not remember what it was called. He did not begin reading until he was 11 or 12 years old. During Asberry's childhood, Anderson was often incarcerated. During those periods, Asberry lived with Ragsdale.
Ragsdale testified that Asberry lived with her while he was in first and second grade and stayed with her from time to time after that until he was 18. She sometimes helped him with his math homework. He was able to understand addition and subtraction, but not division. He had difficulty with reading. When he became frustrated with school work, he "shut down" and refused to continue.
Gagliardini testified that he reviewed the records and the psychological evaluations and noticed two things. First, Asberry was found by one evaluator to be malingering. Gagliardini observed that, in his experience, malingering is frequently attributed to criminal defendants on the basis of two criteria alone: the fact that the evaluation was made for purposes of a criminal proceeding, plus a diagnosis of antisocial personality disorder. Second, Gagliardini found it "strange" that a defendant with a low level of intellectual functioning would be found to be malingering. He thought a higher level of functioning would be needed to support efforts to deceive the evaluator. Gagliardini had often had the experience of a client being found to be malingering because he was involved in a criminal proceeding and he was nonresponsive when evaluated; but "when you get to [c]ourt their affect is still the same" as it was during the evaluation. Gagliardini further testified that, in his experience, clients found to be both mentally retarded and suffering from forms of psychosis were unable to assist him at trial even if found competent after competency hearings. But he could not answer a hypothetical question, based on facts about Asberry in the materials he had reviewed, as to whether the client would be able to assist counsel. He said there was not enough information to make the call.
On cross-examination, Gagliardini testified that while children with developmental disabilities theoretically are identified by school or other authorities before age 18 and referred to the regional center, this certainly does not always happen. He also testified, in response to a question by the court, that a positive result on a test for malingering means only that the evaluator should consider whether the evaluation as a whole indicates malingering; the test result alone cannot establish it. Appointment of Dr. Craig West
When all the witnesses were finished testifying, the court told the parties it was not satisfied with evidence presented so far. It said, "[I]n the Court's opinion the expert material we have in this case is insufficient to render a proper decision regarding the defendant's mental competency, and what is needed is a specific evaluation focusing on the issue of retardation as it relates to competency." In particular, the court wanted an expert who was qualified to administer a test designed for use in this context, the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR). With the agreement of the parties, the court appointed psychologist Craig West to perform an evaluation including this test.
Additional IQ testing by Longwith
Later that day, October 17, 2013, Longwith submitted his report on the additional IQ testing he administered to Asberry. Longwith administered the Wechsler Adult Scale for Intelligence, fourth edition (WAIS-IV). This is a full-scale IQ test in widespread use by psychologists. The testing yielded a full-scale IQ for Asberry of 61 and a general ability score of 64. Longwith testified that this was "in the range of someone who is extremely deficient, in the mentally retarded range."
In response to questioning by the court, Longwith said he looked for any indications that Asberry might be performing poorly on purpose, but he found none. Instead, he observed a number of occasions on which Asberry made mistakes but then corrected them, saying, "Wait a minute, no, that's not the right one," and then changing his answer. Longwith also observed that, as when he interviewed Asberry previously, he responded to questions with monosyllables. He believed Asberry had some type of language dysfunction, at least for spoken language.
The scoring on the WAIS-IV is divided into parts. Asberry's scores were listed in Longwith's report as follows: verbal comprehension, 61; perceptual reasoning, 73; working memory, 66; processing speed, 68; full scale, 61; general ability, 64. When asked how the full scale and general ability scores could be lower than most of the part scores, Longwith indicated that this was not unusual, but he did not know the mathematical or statistical formula by which it was determined. It did not involve any discretion on the part of the examiner. Longwith also testified that it would be difficult, but possible, for a person with Asberry's IQ to become competent to stand trial through competency training.
West's report
West's report was filed in the trial court on November 5, 2013. West reviewed the correctional mental health records seen by the other evaluators and additional records created after they interviewed Asberry. A note dated April 19, 2013, stated that Asberry had not received his medications for three months. He experienced auditory hallucinations continuously during the time he was unmedicated. Notes written in May, August, and October 2013 indicated that Asberry's medications had resumed and he was not reporting problems.
West also copied into his report some material on prior offenses, thinking they were part of the records on Asberry. As this material itself indicates, however, these were prior offenses committed by Asberry's half-brother Aloysius Asberry, who, as we have mentioned, was a co-perpetrator and the defendant in the appeal that was the subject of our opinion issued September 1, 2015, in case no. F067710.
The report stated that West interviewed Asberry on October 28, 2013. Asberry's appearance and dress were adequate, and his posture, gait, and carriage were normal, but his psychomotor activity was slow. West found Asberry to be "pleasant, but mildly lethargic" and also "slightly reserved." His affect was "passive-appearing and of low-intensity." He was calm and relaxed. He appeared open and honest and West perceived no attempts to feign present or past behaviors. He was oriented to time, place, and person "for the most part" but could not name the current President of the United States. Asberry had mild to moderate difficulty maintaining his concentration during the session and needed reminders to stay on task. He seemed to have mild difficulty comprehending moderately complex questions. He appeared to give his best effort in responding to questions and his answers were simple and to the point, though not detailed. By giving Asberry a series of tasks (remember three words and repeat them 10 minutes later, repeat a sequence of digits backward and forward, and the like), West determined that Asberry's concentration and memory were mildly to moderately impaired.
Asberry described his experiences with schooling to West. He attended special education classes throughout school and at one point was placed in a Resource Specialist Program. West wrote that this is a special education program for students with learning disabilities. Asberry said his grades in school were unsatisfactory and below average. The highest level he completed was junior high school.
Asberry reported problems in social interactions in school and in general. He had a history of fighting and arguing with other students and teachers and was once kicked out of school for fighting. He once violated the terms of his probation by fighting. His relationships with others were unsatisfying and he often found himself angry, irritable, or upset with them. Children at school made hurtful comments, such as that he was not worth anything, and he would react angrily and fight. He also reported becoming angry for no reason at times and feeling irritable for extended periods. He also sometimes had emotional highs, associated with impulsivity, that lasted up to two hours.
Asberry indicated to West that he considered fighting a suitable response to situations that upset him. He said he would attack a witness on the stand if the witness was lying about him. When asked what he should do if a young child hit him, Asberry said, " 'Fight.' " He repeated this answer when asked what he should do if the child was only 10. West concluded that Asberry's ability to relate to others was moderately to markedly impaired. Also, Asberry's judgment was moderately impaired.
Asberry described his history of auditory hallucinations. He heard voices that called his name. We would look around to see who it was and no one would be there. He said this happened once in a while. There was no apparent delusional thinking in connection with the hallucinations. Asberry also described his history of depression and anxiety.
Asberry told West he had no checking account and did not know how to manage his own finances. He said he had difficulty counting money correctly.
Asberry said he did not know when asked the meaning of the expression " '[d]on't count your chickens before they hatch.' " When asked to explain the expression " '[s]trike while the iron is hot,' " Asberry merely repeated the words " '[t]he iron is hot.' " West found Asberry's abstract thinking was moderately impaired.
West administered eight psychological tests to Asberry. One of these measured intelligence, two were for the detection of neurological impairments, two were designed to detect malingering, and three measured competency to stand trial. West found Asberry used adequate effort on all the tests.
The intelligence test West administered was the same as that administered by Longwith on October 15, 2013, the WAIS-IV. Asberry scored a full-scale IQ of 65, in the extremely low range of intellectual functioning. His scores on the four parts of the test were as follows: verbal comprehension, 66; perceptual reasoning, 75; working memory, 69; processing speed, 74. West stated that the test's overall finding—that Asberry's intellectual functioning was in the extremely low range—was consistent with his other observations.
The tests for neurological impairments were called the Bender-Gestalt II and the Trails A and B. The Bender-Gestalt II test involves showing the patient shapes and requiring him or her to reproduce them. Asberry's score on this test was classified as low or borderline delayed, which according to West meant "some mild impairment" was indicated, but the impairment was not significant. The Trails A and B test requires the patient to connect a sequence of letters and numbers within a limited time. Asberry's scores on this test were significantly below average and suggested a neurological impairment.
The malingering tests were the M-FAST (which Longwith had previously administered on December 7, 2012) and the Test of Memory Malingering (TOMM). West wrote that Asberry's M-FAST results were "similar to individuals who distort or exaggerate their symptoms," but a finding of malingering was unwarranted in spite of this. Several factors supported the conclusion that the test results were a false positive: (1) the affirmative responses to questions about psychosis were consistent with Asberry's history; (2) his score for unusual hallucinations was low, indicating that he was not over-endorsing the hallucination symptoms; and (3) his score for suggestibility was low, meaning he did not change his story when prompted.
The TOMM is designed to help distinguish genuine memory impairments from feigned ones. The test involves seeing a series of pictures and then attempting to identify them afterwards. On trial 1, a score of 45 percent or less could indicate malingering. Asberry's score was 80 percent. On trial 2, a score below 45 out of 50 could indicate malingering. Asberry scored 49. These results did not support a finding of malingering for a person with or without cognitive difficulties.
The competency tests West administered were the CAST-MR in which the court had been specifically interested, the ECST-R, which Longwith had previously administered, and the Mental Competency Evaluation Scale (MCES). The CAST-MR, as we have mentioned, was designed to measure competency to stand trial in mentally retarded adults. It is divided into three parts. On the basic legal concepts part, Asberry answered 40 percent of the questions correctly and was in the fourth percentile of the mentally retarded population. On skills to assist defense, he got 33 percent of the questions right and was in the third percentile of the mentally retarded population. On understanding of case events, he got 95 percent of the questions right and was in the 76th percentile of the mentally retarded population. When considered in isolation, these scores placed Asberry in the incompetent range for basic legal concepts and skills to assist defense and in the competent range for understanding of case events. Asberry's overall score on this test placed him in the fourth percentile of the mentally retarded population, "meaning that 96% of individuals with cognitive impairments and who have been found competent to stand trial, would likely perform higher" than Asberry. The overall score "places him in the incompetent range, suggesting that he likely does not meet the minimal requirements to be considered competent to stand trial." For the general population, Asberry's overall score was in the first percentile.
The ECST-R is organized around the test of competency to stand trial as defined by the United States Supreme Court in Dusky v. United States (1960) 362 U.S. 402, 402 (Dusky), which stated that the defendant must have " '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.' " The test under California law is similar. Section 1367 states that a defendant is mentally incompetent to stand trial if "as a result of mental disorder or developmental disability, [he or she] is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Id., subd. (a).) The ECST-R has separate scores for ability to consult with counsel, rational understanding of the proceedings, and factual understanding of the proceedings. Asberry's performance indicated that he had moderate impairments in his ability to consult with counsel and his rational understanding of the proceedings, but little to no impairment in his factual understanding of the proceedings.
West stated that he evaluated Asberry's answers on the ECST-R for signs of malingering. He found Asberry answered the questions consistently, was responsive, and did not often say " 'I don't know.' " He was able to understand the questions in general and was somewhat motivated in answering them. West believed his answers accurately measured his competency.
The ECST-R results were similar to the results of the CAST-MR in that Asberry did better on the factual understanding portion than on the remainder. In his description of the ECST-R results, West reported that Asberry was moderately impaired on consulting with his attorney and rationally understanding the proceedings and not significantly impaired on factually understanding the proceedings. West wrote that the ECST-R scores indicated Asberry was "likely incompetent to stand trial based on his ability to understand courtroom proceedings rationally, and competent to stand trial based on his ability to understand courtroom proceedings factually." For an overall assessment based on the ECST-R, West merely stated that "some competency impairments were identified"; he did not express a result in terms of whether the test indicated Asberry was competent or incompetent according to the test. But because the elements of competency are conjunctive—a defendant must have all of them to be competent—we infer that moderate impairments on consulting counsel and rational understanding are moderately indicative of incompetence, even though there was no substantial impairment on factual understanding.
Finally, the MCES was divided into four phases: (1) general legal knowledge; (2) tolerating stress and behavior/conduct; (3) working with an attorney; and (4) ability to consult with counsel/case specific. Each phase was divided in turn into two categories of questions: expressive knowledge (ability to express legal information) and receptive knowledge (ability to comprehend legal information).
The general legal knowledge phase tested Asberry's understanding of basic legal terminology, the charges against him and their seriousness, plea bargains, general trial procedures, and courtroom personnel and their roles. In this phase, Asberry's "answers indicate that he falls in the low range in understanding basic legal procedures. He demonstrates a lack in understanding courtroom procedures and is currently not competent in this area."
The tolerating stress and behavior/conduct phase tested Asberry's ability to control his behavior under the stress of being on trial. His answers indicated he was in "the marginal range" in this ability and might have "some mild difficulty controlling his emotions" during the proceedings.
The working with an attorney phase measured Asberry's ability to understand the roles of the defending and prosecuting attorneys, his ability to communicate with his attorney, his feelings about and trust of his attorney, and his ability to follow his attorney's advice. The test results indicated a moderate impairment; Asberry appeared "only marginally competent in this area."
The phase called ability to consult with counsel/case specific measured Asberry's ability to understand his own case, including the facts, the pertinent legal documents, and the range of possible verdicts. Topics addressed in this phase included Asberry's ability to review case materials rationally with his attorney, attend to witnesses' testimony as it is given during trial, and recognize any contradictions or errors in the evidence presented to the jury. His answers were indicative of "moderate difficulty" in this area. Asberry may "only be borderline competent" in these respects.
There were four levels within which the scores on each phase and the overall score could fall. Levels 1 and 2 were very low and low, and indicated incompetence. Level 3 was marginal, and indicated borderline incompetent/competent. Level 4 was fair, and indicated minimally competent. Level 5 was adequate, and indicated competent. Asberry's score on phase 1 was at level 2 and his scores on phases 2, 3, and 4 were at level 3. His overall score was at level 3. West concluded that, when viewed in light of Asberry's cognitive impairment, his answers to the MCES questions overall "indicated that he has a significant impairment in his ability to competently stand trial."
In addition to the four levels and the overall score based on them, the MCES included 21 supplementary scales. West's report includes an explanation of, and narrative description of Asberry's performance on, only three of these: (1) The supplemental scale called emotional control measured Asberry's likely ability to maintain emotional control while in the courtroom. Asberry's score on this scale was at level 2 and West stated that he may have a significant inability to control himself if overwhelmed or confused. (2) The scale called basic knowledge of court actors/personnel measured Asberry's ability to name the personnel involved in a criminal proceeding and his understanding of their roles. His score was at level 1. West wrote that his performance indicated a significant impairment. (3) The scale titled understanding rights measured Asberry's understanding of his basic rights in a criminal proceeding. West stated that his answers showed a lack of understanding of these rights. His score was at level 3. Asberry's scores on the 21 supplementary scales varied widely, from level 1 to level 5, but most of them were at level 3 or lower.
West included a number of examples of questions from the MCES and Asberry's responses. Some of the questions were multiple-choice and others were open-ended. Asberry gave correct answers or answers indicative of knowledge or understanding to the following questions (with his answers shown in parentheses): Who is responsible for enforcing orders through the court? (The judge.) What do you call anything useful that could assist in deciding the facts of the case? (Evidence.) What does " 'beyond a reasonable doubt' " mean? (It is the standard of proof necessary for a conviction.) What is the jury's decision called? (A verdict.) What is it called when a person is sentenced to the community with provisions? (Probation.) What is it called when a person is released from prison with rules to follow? (Parole.) What is a behavior or act that breaks the law called? (A crime.) What is the first statement the prosecution or defense makes to the jury called? (An opening statement.) What is it called when someone pays money to be released from jail? (Bail.) What usually happens to an offender found guilty of a serious crime? (He is sent to prison.) What must a judge or jury believe to find a defendant guilty? (That the defendant committed the crime beyond a reasonable doubt.) What does it mean to take a plea bargain? (To agree to take a lesser punishment.) What is the unlawful killing of one person by another called? (Murder.) Of the following, which is a less serious crime than the others: rape, prostitution, murder? (Prostitution.) Which of the following describes an offense category that includes murder, rape, robbery, and aggravated assault: misdemeanor, violent, or petty? (Violent.) What are you being charged with? (Murder.) Describe what your charge means. (Killed.) What is the possible sentence you can receive for such a crime? (It means I will never get out.) Why are you in trouble? (Murder.) How many jurors need to agree for a defendant to be found guilty of a crime: half, 12 or 6? (12.) Can you talk to your lawyer? (Yes.) When can you talk to your lawyer? (Before I go to court.) What do you say to your lawyer if you don't understand what is being said? (Tell me something. I don't understand.) The person primarily responsible for making the sentencing decision is the: jury, bailiff, court reporter, judge? (Judge.) A free lawyer appointed to help you out is called a: defense attorney or prosecuting attorney? (Defense attorney.) Describe what the judge does. (Makes rules.) What were you doing when you got arrested? (Back of the apartment. I was sitting on a back wall.) The Sixth Amendment guarantees the right to: grand jury review or a speedy trial? (A speedy trial.) Due process helps give rights to the: victim, prosecutor, or defendant? (Defendant.) While in court it is a good idea to: yell at the judge so he can hear you, listen to the proceedings quietly, or read a book quietly? (Listen to the proceedings quietly.) Can you tell jokes in court? (No, I can't.) What does it mean to be found guilty? (Don't go home.) What does it mean to say you're innocent? (I did nothing.) What might happen if the court finds you innocent? (I get to go back home.) What could happen to you if the court finds you guilty? (I am not going to go home.)
Asberry gave incorrect answers or answers indicative of ignorance or misunderstanding to these questions (again with his answers in parentheses): Is a person innocent until proven guilty or guilty until proven innocent? (Guilty until proven innocent.) Is the location where a crime occurred called a crime scene or an evidence room? (Evidence room.) Which comes first, a trial or a first appearance? (Trial.) What happens during a trial? (I don't know.) Should you talk to the prosecuting lawyer without talking to your lawyer first; when can you talk to the other side's lawyer? (I don't know.) Which of the following describes unlawful sexual intercourse, achieved through force and without consent: murder, rape or simple battery? (Don't know.) Will you go to trial or not? Please explain why. (I don't know.) What happens during a criminal trial: a trial and an arraignment or a trial and a sentence for the crime? (A trial and an arraignment.) Why do you have to go to court? (No.) Who can you talk to if you don't understand what is being said about you in court? (My mom.) What do you tell your lawyer if somebody lies about you? (Fight.) Are you able to understand the instructions and advice that your lawyer gives to you; what advice has your lawyer given you that you have followed or will follow? (I don't understand the way he talks.) What is a witness? (Someone who was not with me.) What should you do if a witness on the stand tells a lie about you? (Fight. Run up there and try to get them.) A person who has been selected for jury duty is called a: lay witness or juror? (Lay witness.) An attorney working for the state and who is against you is the: defense attorney or prosecuting attorney? (Don't know.) Who is on your side in the court? (My mom.) What is the jury's job? (Say not guilty.) Why does the other side's lawyer want to make you look bad? (I don't know.) On what date did the crime happen? (I don't know.) Do you trust your lawyer? (No.) Miranda rights means a police officer must advise you of your rights before: booking, when in custody and prior to interrogation, arresting, or fingerprinting? (Arresting.) The Fifth Amendment gives you the right to: be the fifth person in court, not be a witness against yourself, to decline a search warrant? (Be the fifth person in court.) How are you supposed to behave in court? (I don't know.) If you get mad in court, what should you do; what shouldn't you do if you get very upset? (I don't know.) What does it mean to plead no contest? (I don't know.) What is a plea? (I don't know.)
West's report discussed Asberry's potential, as shown by the MCES, for becoming competent through treatment and training. He found Asberry probably could increase his competency level in several areas if assisted by a professional mental competency trainer. Because of his cognitive impairment, he would not be likely to learn the competency material quickly and would need extra time and repetition.
To validate the results of the MCES, West evaluated Asberry's answers "to ensure he was not malingering, no significant psychotic processes were present, he was consistent in answering the questions, he gave limited 'I don't know answers,' he was [responsive] to the questions being asked and he was motivated in answering the questions." West concluded Asberry's answers "appear to be an accurate measure of his competency level," but "some caution is recommended in interpreting the scores."
Finally, West stated his conclusions from his entire evaluation of Asberry. He diagnosed four conditions: (1) intellectual developmental disability, mild; (2) other specified depressive disorder, mild; (3) disruptive mood dysregulation disorder; and (4) other psychotic disorder, persistent auditory hallucinations. West opined that Asberry was rendered unable to understand the nature of the criminal proceedings and unable adequately to assist counsel by his developmental disability (i.e., the mental retardation). Asberry's mental illnesses (the depressive disorder, mood dysregulation disorder, and psychotic disorder), however, did not have similar effects, as the symptoms of those illnesses were currently being adequately regulated by medication. In other words, although Asberry was both mentally ill and mentally retarded, it was only the mental retardation that rendered him incompetent to stand trial. "Overall, it is opined by this evaluator that Mr. Asberry is not competent to stand trial given his cognitive limitations," West concluded. West further stated that with continued medication and with a program of mental competency training, Asberry likely could learn enough about the trial process and gain sufficient ability to assist counsel to become competent within six to 12 months.
At a hearing on November 6, 2013, the day after West's report was filed, the court proposed to the parties that they submit the issue of competency based on that report and the other evidence previously received. The court stated:
"I want to make sure that in this case, however it turns out, the Court has a proper record before it and has the ability to render a decision on the question of competency backed up by findings and backed up by evidence in the record that would withstand any appeal and—if any were necessary, and hopefully not lead to an appeal so that this case can move forward one way or another. [¶] I wanted to convey to both of you that in the Court's opinion, we have such a record in this case now with the report of Dr. West. [¶] In terms of Dr. West's expert evaluation, the Court feels that there's
ample evidence that would support an exercise of discretion that could go either way in this case. It's not a one-sided case."
The parties agreed to submit without further testimony and without closing arguments.
The proposed statement of decision
The court issued a proposed statement of decision on November 8, 2013. The statement of decision began with harsh criticism of Longwith's opinion. Disregarding the fact the Longwith deemed Asberry incompetent based in large part on his finding of mental retardation, the court stated that Longwith "ignored the relationship that might possibly exist between competency and retardation." It observed that Longwith did not administer and apparently was not qualified to administer the CAST-MR. Therefore, "his report must be considered as inadequate and incomplete to meet the court[']s need for a full record to make a determination of competency/incompetency." Although it considered this alone sufficient reason to reject Longwith's opinion, the court went on to find other deficiencies in it. Longwith found that Asberry's responses to the questions on the ECST-R indicated a lack of understanding of the legal proceedings, but provided "no explanation" for these responses. According to the court, the responses "could have reflected dissimulation or malingering." After Longwith's additional IQ testing confirmed his finding of mental retardation, he continued to be of the opinion that Asberry was mentally incompetent due to retardation and mental illness; but the statement of decision maintained that Longwith at that point "still ignored the significance of retardation alone or in combination with symptoms of mental illness in evaluation of competency." For these reasons, the court found it "painfully apparent" that Longwith's opinion was "not worthy of belief."
The statement of decision includes no assessment of the opinion of Lundgren, even though the court and Lundgren agreed in their ultimate conclusions that Asberry was competent. The court's entire description of Lundgren's evaluation is this sentence: "After Dr. Longwith testified, the second expert, Dr. Kathe Lundgren, testified, concluding that defendant was competent, and that reported symptoms of mental disorder were the product of malingering." The court also remarked that the IQ test results obtained by Lundgren, finding no mental retardation, were "of questionable validity" because they conflicted with the results consistently obtained by the other two experts.
The statement of decision went on to explain that, the evidence received so far being unsatisfactory, the court appointed West to carry out further evaluation. The court observed that West did not find malingering and did not believe Asberry's mental illnesses were sufficiently severe to make him incompetent to stand trial. Instead, West's "whole thrust of analysis was devoted to the issue of mental retardation," and he found Asberry incompetent on the basis of that condition. But the court found it "necessary to analyze in detail the reasons in support of that opinion to see if there were underlying facts [West] found that supported an opposite conclusion."
Before beginning this detailed analysis of West's evaluation, the court framed its view of the question presented in a curious manner. Two aspects of this framing were curious, in fact. First, the court suggested that its analysis would involve a process of balancing competing interests in punishing criminals on the one hand and refraining from trying the incompetent on the other. The court referred to the "social goal of convicting and punishing defendants who are found guilty of criminal, sometimes heinous acts, in this case perhaps the most serious of all, first degree murder." Then it referred to "the legal and constitutional framework which has determined that it would be unfair and a deprivation of due process to subject a defendant to trial where he had a mental disorder or disability that made him unable to understand the nature of the proceedings and assist counsel for the defense." This was curious because, as we will explain later in this opinion, the social interest in punishing a heinous crime, profound though that interest is, has no role in the analysis of whether the defendant is competent to stand trial. The seriousness of a crime and the extent of a defendant's mental incompetence are incommensurable quantities—apples and oranges—and the law does not call for a comparison of them. A mentally incompetent defendant cannot be tried no matter how serious the crime of which he may be guilty.
The second curious aspect of the court's statement of the question presented was its focus on only one aspect of the legal standard for mental competence to stand trial, and an oddly stated version of that one aspect at that. The court stated that where the defendant is "not delusional" and "does not think that he is being persecuted rather than prosecuted," the "only issue as the court sees it" is whether he "should not be forced to stand trial because he cannot assist his defense counsel as much as other clients might be able to do." As noted above, section 1367 provides that a defendant is not competent to stand trial "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Id., subd. (a), italics added.) The court's statement of the "only issue" omitted the italicized portion of the standard. It also misstated the remaining portion, which is whether the defendant can assist counsel in a rational manner, not whether he can do so as well as other defendants. In putting the issue this way, the court appeared to imply it was a foregone conclusion that Asberry could assist defense counsel in a rational manner, and it remained to be determined only whether an inability to do so as well as some defendants was a sufficient reason to find him incompetent.
Having thus teed up the question in terms of whether the social interest in punishment for a heinous crime could be squared with Asberry avoiding trial just because some other defendants might be able to assist counsel better than him, the court proceeded to analyze West's evaluation.
The court first noted that the IQ test administered by West found Asberry's IQ to be 65, which was "extremely low, in the first percentile." On this basis, the court found it was "beyond question that Mr. Asberry is mentally retarded in the clinical sense." This meant the question to be answered was "is he competent although retarded or incompetent because retarded?"
Next, the court observed that while both Longwith and West found Asberry's profile on the M-FAST to be like that of persons found to be malingering, West discounted this outcome, finding indications both within the M-FAST scores and in other observations that Asberry was not malingering. The court did not discuss West's finding that the TOMM indicated Asberry was not malingering.
The court noted that Asberry's results on the ECST-R competency instrument as administered by West were not as poor as the results on the same test as administered by Longwith. Where Longwith found Asberry's responses to reflect little to no understanding of the proceedings or his case, West found Asberry had moderate impairment in his ability to consult with counsel, moderate impairment in his rational understanding of the proceedings, and little or no impairment in his factual understanding of the proceedings. The court did not point out that, in West's view, these results indicated Asberry was incompetent to stand trial because of his inability to understand courtroom proceedings rationally.
The court actually wrote that West found " 'moderate ability to consult with counsel,' " but this is a misquotation of West's report. West actually found moderate impairment of this ability.
Although a need to use the CAST-MR had been the court's justification for appointing a third expert, the statement of decision discussed West's incompetence finding under that test only briefly before summarily dismissing it. Noting that Asberry scored in the fourth percentile of the mentally retarded (but competent) population on basic legal concepts, and the third percentile for skills to assist in his defense, the court emphasized that he also scored in the 76th percentile on understanding case events. The court remarked this was "quite a discrepancy," seeming to imply if a person can understand the "events" of his case, that person must also be able to understand, and help with, the legal process of a murder trial, even if the person is mentally retarded. The court also appeared to try to cast doubt on the validity of Asberry's reported overall result on the CAST-MR, which placed his total score in the fourth percentile. West stated that Asberry's score was 24.5 and that this was below the mean for the competent mentally retarded population of 37.2. A few lines away from this statement is a table in which one column is headed "T Score." The total shown under this column, in the portion of the table showing Asberry's performance compared with the mentally retarded population, is 34. The statement of decision speculated that the 24.5 figure could be a typo and that 34 could really be the intended number, in which case Asberry was "still closer to the mean of 37.2." (Neither the statement of decision or West's report contains any explanation of the statistical concept of a t score in psychometric testing.) Finally, the court pointed out that, unlike with the MCES, West's discussion of the CAST-MR did not include a list of examples of the questions asked and Asberry's answers. "Since content was not reported, we don't know what wrong answers were given," the court stated. (West's discussion of the MCES was the only portion of any of the three expert reports in which "content" was reported in this sense. The three experts administered a total of 16 tests to Asberry.) For this reason, the court "accept[ed] these [MCES] results over the CAST-MR."
The court then turned to an examination of Asberry's specific responses to questions on the MCES. As noted above, Asberry received an overall score on the MCES that indicated he was borderline competent/incompetent. West stated that, based on Asberry's performance on separate sections of the test, Asberry was not competent in the area of general legal knowledge and marginally competent in the remaining areas. The court proceeded by minimizing or attempting to explain away the deficiencies the test identified. The test found Asberry's overall expressive knowledge was level 1, incompetent, but the court stated "this is something where with follow-up questions an attorney can work with his client." Asberry gave inconsistent answers when questioned about innocent-until-proven-guilty and beyond-a-reasonable-doubt. He knew beyond-a-reasonable-doubt is the name of the standard of proof for finding a defendant guilty, but also said a defendant is guilty until proven innocent. The court compared the latter answer with what it believed was the opinion of many jurors that the presumption of innocence is a "legal fiction" which they indulge by "simply waiting for the evidence of guilt they expect the prosecution to have to offer." The court also speculated that Asberry was perhaps being "street-smart," like those defense attorneys who, in the court's opinion, think the presumption of innocence is the "right answer" only "in theory." Asberry's misunderstanding of Miranda was technical and not of a nature to impede his participation in the proceedings. West found Asberry was not malingering when answering the MCES questions, in part because his " 'I don't know' " answers were few. The court counted one such answer in five among the example questions West listed. It thought this was not a few and suggested dissimulation. When Asberry said he could not understand the way his lawyer talked, the court speculated that this could be because his trial counsel "spoke with a pronounced accent with an unusual speech rhythm," not because Asberry's understanding was impaired. Asberry's wrong answer about the Fifth Amendment was so obviously wrong that it suggested insincerity and "he would have done much worse throughout" if it were sincere.
In addition to minimizing the significance of the areas in which Asberry performed at an incompetent level, the court embellished the test's results in the areas in which Asberry's performance rose to the level of marginal or borderline competence, concluding that these results really supported a finding of outright competence across the board. It claimed Asberry knew he should tell his attorney if a witness said something untrue, when in reality Asberry only said he would ask his attorney or his mother for help if someone in court said something he did not understand. If a witness said something false about him, Asberry actually said his reaction would be to charge the witness stand and fight the witness. The court also averred that Asberry had "no significant difficulty in remembering all the important facts of the case." The test results, however, indicated Asberry was only marginally competent or on the borderline of competence and incompetence in his case-specific grasp of relevant matters. There was nothing in West's report of the test results to indicate that Asberry remembered all the significant facts. Instead, Asberry said he was at home at the time and knew none of the facts. The court further stressed that Asberry knew he was charged with murder and faced a life sentence.
The court next undertook to explain what West really meant when he found Asberry incompetent to stand trial. The court revealed its belief that when a psychologist evaluates a client for competency to stand trial, the psychologist's true interest is in "factors of competency that can or cannot be restored through specific training of the client." The court attributed to West a notion that even if a defendant is competent, it is desirable for him to be trained to gain additional competence. This notion, the court implied, caused West to state that Asberry was not competent even though competency was "present, albeit marginally" so in Asberry. In the court's view this was a mistake, because the court believed marginal competence simply meant competence, and the law did not provide for delaying trial to make a competent defendant more competent. In other words, West's real finding, in the court's view, was that Asberry was competent; but, having the professional bias of a psychologist, West would have liked him to become more competent, so he wrote that Asberry was incompetent in the hope of achieving this result. "It is apparent to the court that Dr. West's overall assessment of 'borderline' or 'marginal' means he can do well enough and could possibly undergo some counseling prior to trial rather [than] being deemed incompetent," the court stated. In this way, the court arrived at the conclusion that West's report contained evidence sufficient to support a finding of competence. "The Court finds that Dr. West's own investigation into incompetence uncovers specific evidence" of Asberry's understanding of the case and the process and of his ability to assist counsel.
Another strand of the discussion in the statement of decision involved an idea that Asberry was competent so long as the situation allowed his counsel to mount an adequate defense. The court wrote at some points as though the focus belonged not on a defendant's mental status but on whether counsel can apply a sufficient degree of rationality to the task of defending him. For instance, the court believed Asberry "understands the nature of the charges and the criminal proceedings and is able to recall and relate the facts of the incident in a complete enough way so that counsel can cross-examine and mount a defense in a rational way." (Italics added.) Similarly, the court criticized West for taking seriously Asberry's ignorance of Miranda and the Fifth Amendment, since defense counsel would understand those things. A defendant would need to know them only "if he were going to law school," and the notion that his knowledge of them matters is illustrative of "the problem with all academic approaches to evaluating a functional question," the court stated. It appears that in the court's view, the functional question was what defense counsel would be able to do at trial; the question of what Asberry's mental condition allowed him to grasp was merely academic.
The court wrapped up its discussion by returning to the theme of balancing the social interest in punishing the guilty against the constitutional principle forbidding trial of the incompetent, this time casting West as a champion of treatment over punishment. It said West "would rather tip the balance on the side of mental treatment rather than assert the societal interest in prosecuting crime."
The ruling adopting the proposed statement of decision
The court held a hearing on the statement of decision on December 6, 2013. The parties, with the court's encouragement, submitted without oral argument and the court found Asberry competent, adopting the proposed statement of decision as its ruling. The court repeated its opinion that West did not really mean it when he wrote that Asberry was not competent and was only indulging his professional bias in favor of treatment:
"[West] concluded that the defendant was incompetent because of his retardation. But the court, in carefully analyzing his report, found that he made various statements and findings in the report that supported the opposite conclusion and his real conclusion was that the defendant was marginally, marginally and borderline competent. The only thing Dr. West was concerned about was that his status could possibly be improved by competency training. But that's not the legal standard. Psychologists may prefer that competency be made as high as possible or enhanced through a finding of incompetency, but the law does not provide for that outcome."
The court then asked defense counsel to state on the record that Asberry understood and waived his right to a speedy preliminary hearing. This led to a colloquy between the court and defense counsel Arturo Revelo on whether Asberry was actually capable of giving a knowing and intelligent waiver. Counsel said, "[T]he defense position is that my client doesn't understand the issue of the waiver" because he was incompetent. The court said, "Well, that's very fine, Mr. Revelo. I found him competent." It told counsel Asberry had either to waive or to assert the right. Defense counsel said, "I'm just placed in a very untenable position. The court's ruling appears to be inconsistent with the factual situation that I am faced with as the attorney of Mr. Asberry." The court suggested that Asberry was willfully refusing to cooperate and said "this has nothing to do with competency." Counsel repeated that Asberry did not understand his right to a speedy preliminary hearing. He said he could not waive time and requested to proceed. The court set the hearing.
Trial and sentencing
Subsequently, an information was filed, and Asberry was tried separately from the other defendants. On July 3, 2014, a jury found Asberry guilty as charged and found the enhancement allegations true.
The court sentenced Asberry on August 22, 2014. On count 1, murder, it imposed a sentence of life without the possibility of parole, plus 25 years to life for the gun enhancement. On count 2, attempted murder, the court imposed a sentence of 15 years to life plus 25 years to life for the gun enhancement. The court stayed the sentence on count 3 pursuant to section 654.
DISCUSSION
Asberry maintains the evidence presented in the competency proceedings was insufficient to support the ruling. We agree.
Competency standard and standard of review
By statute in California, as indicated above, a "person cannot be tried or adjudged to punishment . . . while that person is mentally incompetent. A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is 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).) The California statute is consistent with the federal constitutional standard, according to which due process principles forbid trial unless the defendant 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.' " (Dusky, supra, 362 U.S. at p. 402.)
In a competency hearing, it is presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that he or she is not competent; and the party claiming the defendant is incompetent has the burden of proving this. (§ 1369, subd. (f); People v. Marks (2003) 31 Cal.4th 197, 215 (Marks); People v. Rells (2000) 22 Cal.4th 860, 862 866-867.) On appeal, however, a finding of competence can be affirmed only if supported by substantial evidence, i.e., evidence that is reasonable, credible and of solid value. (People v. Marshall (1997) 15 Cal.4th 1, 31; People v. Samuel (1981) 29 Cal.3d 489, 506.) This means we affirm the finding of competence if and only if there is substantial evidence in the record to support the conclusion that the defendant did not overcome the presumption and show incompetence under the preponderance standard, regardless of whether we would have made the same finding ourselves. The question, in other words, is whether any reasonable finder of fact could find the defendant failed to carry his burden.
That the bulk of the experts' opinions supported a finding of incompetence does not, by itself, mean the court was required to find the defendant incompetent. It is appropriate for the court to assess the weight and persuasiveness of the experts' evaluations and then make its own finding. (People v. Lawley (2002) 27 Cal.4th 102, 132; People v. Bassett (1968) 69 Cal.2d 122, 141 [value of expert opinion depends on proof of underlying facts and validity of reasons given for conclusions].) Even so, a finding of competence can be affirmed only if the evidence in support of it can be deemed substantial in light of the entire record of the competency proceedings. When applying the substantial evidence standard, we review the record in the light most favorable to the judgment, but we do not confine our review to those portions of the record that support the judgment. (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 840.)
In this case, although there was evidence Asberry might be exaggerating his symptoms in some ways, and although he exhibited some limited capacity to comprehend and participate in the proceedings, there was no substantial evidence of competency within the meaning of section 1367 and Dusky. Substantial evidence in the record established that Asberry was mentally retarded and had symptoms of depression, attention deficit disorder, and some type of psychosis. It also established that he was substantially impaired by his mental retardation, if not also by his other conditions. It did not further establish that, in spite of these facts, Asberry was competent. Neither the evidence relied on by the trial court nor the evidence encompassed within Lundgren's evaluation (nor any other evidence in the record) sufficed to support that finding.
The evidence relied on by the trial court
In finding competence, the court's statement of decision expressed multiple misconceptions. These began with the notion that Longwith must have ignored the effect of Asberry's mental retardation on his competency, even though Longwith's opinion that Asberry was incompetent was based in part on that very factor. The court's notion appeared to be based on the fact that Longwith did not administer the CAST-MR. The court seemed to believe mental retardation might mask competency, i.e., make someone appear incompetent who really is competent, and the CAST-MR could penetrate this facade. This is the only reason we can think of why the court might have supposed Longwith was not properly considering Asberry's mental retardation. So far as the record shows, however, it was never likely that the CAST-MR would show what the court assumed it might. In State v. M.J.K. (N.J. App. 2004) 849 A.2d 1105, 1110-1112 (M.J.K.), a case to which the court called the parties' attention because of the information it contains about the CAST-MR, the New Jersey Appellate Division discussed the risks of obtaining misleadingly high scores from mentally-retarded test-takers on mental competency tests. A co-author of the CAST-MR testified in that case about this danger. The court's dismissal of Longwith's incompetency finding as "not worthy of belief" thus appears to be based largely on a misunderstanding.
In light of the court's apparent misunderstanding of what was likely to be shown by the CAST-MR—which it at first conceived of as the linchpin of Asberry's evaluation and the key reason for appointing a third expert—it seems revealing that the court rejected that test when, as administered by West, it turned out to support a finding of incompetency instead. The ostensible reason for the rejection—that West did not recite the test questions and Asberry's answers—makes little sense. The inclusion of an extensive set of test questions in a psychological evaluators' report is unusual, and the three evaluators employed in this case did nothing of the kind for the other 15 tests they administered. In fact, in his testimony, Longwith referred to a general need to keep psychological test questions secret in order to prevent them from entering into circulation and compromising the tests' validity.
Another important misconception was reflected in the court's language suggesting that its task involved a balancing of, or the resolution of a competition between, the social interest in punishing a murderer and the legal principle prohibiting trial of a mentally incompetent defendant. The contrast between these interests was not a proper part of the court's analysis. The contrast or tension between these interests might have been a proper matter for consideration by the legislators who enacted the pertinent statutes, or the Supreme Court justices who delineated the pertinent constitutional principles, but it has nothing to do with the task of a trial judge presiding over a competency hearing. The trial court's job at such a hearing is to determine whether the evidence shows the defendant is competent or not as that term is defined by law. If the court were influenced in that determination by the possibility that a guilty defendant might not be tried or that a terrible crime might go unpunished, such an influence would be altogether improper.
The dilemma often turns out to be a false one, since defendants found to be incompetent to stand trial often are rendered competent through treatment and subsequently tried. In Marks, supra, 31 Cal.4th at pages 215 through 216, an expert testified that all defendants found incompetent in the jurisdiction were sent to Atascadero State Hospital. Ninety percent of these subsequently were returned to stand trial, and 93 percent of those completed the trial process.
It has long been established that the issues of competence and guilt are entirely separate. "The principle of law by virtue of which an insane man, even though incontestably guilty of the commission of a criminal offense, may neither be tried, sentenced, nor punished for his dereliction in that regard, is of long standing." (People v. Perry (1939) 14 Cal.2d 387, 397, italics added.) In fact, relying on no lesser authorities than Blackstone and Coke, our Supreme Court took the position many decades ago that the trial and punishment of a mentally incompetent defendant, even though guilty, would be inhumane and not serve the purposes of the law at all:
"In 4 Blackstone Commentaries, 24, it is said: 'Also if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to
plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos mentis (of sane mind) should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 and 2 P. and M., c. 10. For, as is observed by Sir Edward Coke, "the execution of an offender is for example ut poena ad paucos, metus ad omnes perveniat (that the punishment may reach the few, but the fear of it affect all): but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others." ' " (Perry, supra, 14 Cal.2d at pp. 397-398.)
Yet another of the court's confusions in this case was reflected in its statement that the "only issue" was whether Asberry "should not be forced to stand trial because he cannot assist his defense counsel as much as other clients might be able to do." This statement was wrong in two ways. First, it omitted half of the statutory standard, which requires the court to determine not only whether a defendant can assist counsel in conducting a defense in a rational manner, but also whether the defendant is able to understand the nature of the criminal proceedings. (§ 1367, subd. (a).) Second, it prejudged the question of whether Asberry could assist counsel, assuming he could do so and making the outcome of the hearing turn on the apparently rhetorical question of whether it was important that he merely could not do it "as much as" some unspecified hypothetical other clients.
Another misconception was closely related to this one. In at least some portions of the statement of decision, the court seemed to believe it could determine whether Asberry was capable of rationally assisting in his defense by considering whether counsel would have enough to work with. This was the wrong question. Defense counsel might have enough to work with in a case in which, by the time of trial, the defendant is incapable of giving any help at all. This would be the situation in a case in which the defendant is competent and provides counsel with all necessary information after being arrested, but then becomes incompetent before trial. Counsel would be in a position to conduct a creditable trial, but trial of the defendant would still be unlawful. The focus belongs on the state of the defendant's mind, not on whether defense counsel can get by.
Another of the court's misconceptions is found in its understanding of West's references to marginal competence. The MCES results found Asberry to be marginally competent or on the border between competence and incompetence by several measures. The court seemed to think marginal or borderline competence was simply a type of competence. It found these designations to be "inconsistent" with West's overall determination that Asberry was not competent and then used them as if they were proofs of competence. The evidence in the report was not reasonably subject to this interpretation. It was clear that test results indicating marginal or borderline competence in a given area meant the results were inconclusive for that area (except in indicating that Asberry was neither clearly competent nor clearly incompetent) and the ultimate determination would have to be made with the help of other evidence.
All these misconceptions would not necessarily be adequate grounds for outright reversal of the judgment if the record still contained sufficient evidence of mental competence. Mistakes in the statement of decision do not by themselves show the evidence to be insufficient, and misapplication of the pertinent legal standards is not in all cases reversible error.
In this case, however, we are persuaded that it was the court's mistakes that led it to believe there was sufficient evidence to find competence when in reality there was not. The points in the record on which the court relied lacked the necessary substantiality, and, at the same time, there was powerful evidence of incompetence the court unreasonably disregarded. The court rejected Longwith's overall finding of incompetence in the belief that Longwith had ignored Asberry's mental retardation, when it was obvious that Longwith did not ignore it. The court inexplicably believed this even after Longwith administered additional IQ testing, confirming the initial finding of mental retardation. The court rejected Asberry's results on the ECST-R as administered by Longwith on the ground that Longwith did not provide an explanation for those results, when in reality Longwith's explanation was that Asberry did not understand and was incompetent. The court thought the ECST-R as administered by West showed Asberry had moderate ability to consult with counsel, when it really showed he had a moderate impairment in that area. On the topic of malingering, the reports of Longwith and West made it clear that the tests were screening tools and raw test result data alone could not establish malingering; Asberry was shown not to be malingering by the evaluation as a whole. (Lundgren disagreed, but the court disregarded Lundgren's report, and, as we will explain, was right to do so.) The court disregarded this, and, apparently on the basis of the raw data from the malingering tests, adhered to the view that many of Asberry's wrong answers on various tests were faked, despite the court's acknowledgement that his intelligence was in the first percentile.
The court rejected the finding of incompetence based on the CAST-MR for no good reason, as we have said. It assumed a high score on one portion made the low scores on the others implausible. It speculated about the possibility of a typographical error inflating Asberry's impairments. It imposed a special demand that specific questions and answers be disclosed before the test results could be relied on.
The court said it was relying on facts it picked out of West's description of Asberry's performance on the MCES, but those facts either were insubstantial in themselves or were mischaracterized by the court. Asberry's overall score indicated that his mental status was on the borderline or in the margin between competence and incompetence, but the court misunderstood, thinking this borderline or margin was a zone of competence. It believed without warrant that Asberry's score at the lowest level for expressive knowledge was insignificant because counsel could compensate by just asking more questions. Confronted with Asberry's conflicting answers about the burden and standard of proof in a criminal trial, the court simply assumed Asberry really understood both. When shown that Asberry was ignorant of legal doctrines the exam asked about, the court either assumed Asberry must be lying, or found such knowledge unimportant for a defendant since counsel would possess it. Reading that Asberry did not understand what his counsel told him, the court speculated that this was because of the attorney's accent. When Asberry said he could ask his attorney or his mother to help him if he did not understand something said in court—but that he would attack a witness who said something untrue—the court misreported this as proof that Asberry knew how to consult with his attorney regarding the presentation of adverse testimony. The test results showed Asberry was on the borderline between competence and incompetence in his grasp of case-specific matters, but the court somehow inferred he had no trouble remembering all the significant facts. Rejecting West's view that Asberry's " 'I don't know' " answers were few, the court declared that they were many because they accounted for about 20 percent of the answers, a conclusion that disregarded the obvious fact that a mentally retarded person might well not know 20 percent of the answers to questions on any complex topic. In sum, what the court relied on was insufficient.
Lundgren's evaluation
The trial court did not rely on the report of Lundgren, but we might affirm the judgment if Lundgren's report contained substantial evidence of competence. It did not. The facts Lundgren relied on lacked substance and her inferences from them were unwarranted. Asberry's awareness that his last school, CL Tech, was "regular" rather than vocational indicates no more than minimal awareness of what went on in his environment. The facts regarding the Zithromax prescription were even weaker. The only conclusion the record supports is that Asberry or someone else noticed he had an infection. This hardly shows competence to stand trial. Likewise, Asberry's ability to distinguish between cousins and half-siblings reveals little of significance. That Asberry denied knowledge of the crimes did not support Lundgren's inference that he had strategic defensive legal understanding, even assuming he was lying. The opinion Asberry expressed to Lundgren about the Super Bowl possibly revealed thinking at a somewhat higher level, but still had little to do with competence to stand trial.
Lundgren's conclusion that Asberry had no genuine psychotic symptoms appeared to be based in substantial part on her belief that Risperdal, the only antipsychotic drug he was prescribed, did not help him. This belief, in turn, was based on Asberry's remark that while the Wellbutrin and Trazodone he had been prescribed before had helped him, the Remeron and Risperdal he was receiving in jail felt like nothing. This remark did not support Lundgren's conclusion. The remark might have meant the Risperdal had not started to work or was not effective or was not yet being given at a high enough dosage. Further, if the Risperdal had worked, it would not have felt like the antidepressant and sleep medicines he had been given before. It would instead have mitigated the psychotic symptoms (the voices). In any event, the view that the Risperdal was not helping was proved false a few months later when West reported that Asberry heard voices constantly during a period when he was not receiving the Risperdal but reported no complaints after it was resumed.
Lundgren's intelligence testing found Asberry's IQ to be between 71 and 85, which was below average but not in the mentally retarded range, and she believed his real intelligence was even higher. Her test results are of doubtful validity, however, because they were inconsistent with the results of the other evaluators' intelligence tests, and because Lundgren violated the test protocol by motivating Asberry with praise. Her belief that he intentionally performed below his real level also was ill-founded. She said she observed him sometimes becoming interested in a question and then hesitating and failing to answer. She surmised this was because he thought it was a bad idea to do well, but it was speculation to suppose he was motivated by this as opposed to simply not knowing the answer.
Lundgren's admission that she did this might be seen as putting all her testing under a cloud. In M.J.K., supra, 849 A.2d at pages 1111 through 1112, the appellate court discussed the inflation of test results that can happen when evaluators conducting testing of mentally retarded defendants for competency proceedings violate testing protocols by using techniques they would not use for intellectually nondisabled test-takers, such as asking leading questions, guiding the examinee to an answer, and giving the examinee additional information to help find an answer.
Possibly the most important example of Lundgren reaching a conclusion without substantial facts to support it was her diagnosis of antisocial personality disorder, a diagnosis not reached by either of the other evaluators and not included in any of the records the evaluators reviewed. Antisocial personality disorder is the illness that once was referred to as psychopathy or sociopathy. (DSM-V, p. 659.) As Gagliardini testified, psychologists testifying in support of a finding of competency often rely on a diagnosis of antisocial personality disorder to help show malingering and discredit clinical indications of impaired functioning. The diagnostic criteria for antisocial personality disorder are as follows:
"A. A pervasive pattern of disregard for and violation of the rights of others, occurring since age 15 years, as indicated by three (or more) of the following:
"1. Failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest.
"2. Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure.
"3. Impulsivity or failure to plan ahead.
"4. Irritability and aggressiveness, as indicated by repeated physical fights or assaults.
"5. Reckless disregard for safety of self or others.
"6. Consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations.
"7. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another.
"B. The individual is at least age 18 years.
"C. There is evidence of conduct disorder with onset before age 15 years.
"D. The occurrence of antisocial behavior is not exclusively during the course of schizophrenia or bipolar disorder." (DSM-V, p. 659.)
Lundgren never explained in her report or her testimony which of the three factors in criterion A she found in Asberry. Even more importantly, she made a mistake about criterion C. That criterion requires the patient to have exhibited conduct disorder before age 15. Lundgren, however, incorrectly testified that the requirement was evidence of oppositional defiant disorder. A prior report stated that Asberry had oppositional defiant disorder as a child, but there was no report that he was ever found to have conduct disorder. The two disorders are quite different. The essential feature of oppositional defiant disorder is "a frequent and persistent pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness" (DSM-V, p. 463), while that of conduct disorder is "a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated" (DSM-V, p. 472). The diagnostic criteria of oppositional defiant disorder are:
"A. A pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness lasting at least 6 months as evidenced by at least four symptoms from any of the following categories, and exhibited during interaction with at least one individual who is not a sibling.
"Angry/Irritable Mood
"1. Often loses temper.
"2. Is often touchy or easily annoyed.
"3. Is often angry and resentful.
"Argumentative/Defiant Behavior
"4. Often argues with authority figures or, for children and adolescents, with adults.
"5. Often actively defies or refuses to comply with requests from authority figures or with rules.
"6. Often deliberately annoys others.
"7. Often blames others for his or her mistakes or misbehavior.
"Vindictiveness
"8. Has been spiteful or vindictive at least twice within the past 6 months. [¶] . . . [¶]
The diagnostic criteria of conduct disorder are:
"B. The disturbance in behavior is associated with distress in the individual or others in his or her immediate social context (e.g., family, peer group, work colleagues), or it impacts negatively on social, educational, occupational, or other important areas of functioning.
"C. The behaviors do not occur exclusively during the course of a psychotic, substance use, depressive, or bipolar disorder. Also, the criteria are not met for disruptive mood dysregulation disorder." (DSM-V, p. 462.)
"A. A repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated, as manifested by the presence of at least three of the following 15 criteria in the past 12 months from any of the categories below, with at least one criterion present in the past 6 months:
"Aggression to People and Animals
"1. Often bullies, threatens, or intimidates others.
"2. Often initiates physical fights.
"3. Has used a weapon that can cause serious physical harm to others (e.g., a bat, brick, broken bottle, knife, gun).
"4. Has been physically cruel to people.
"5. Has been physically cruel to animals.
"6. Has stolen while confronting a victim (e.g., mugging, purse snatching, extortion, armed robbery).
"7. Has forced someone into sexual activity.
"Destruction of Property
"8. Has deliberately engaged in fire setting with the intention of causing serious damage.
"9. Has deliberately destroyed others' property (other than by fire setting).
"Deceitfulness or Theft
"10. Has broken into someone else's house, building, or car.
"11. Often lies to obtain goods or favors or to avoid obligations (i.e., 'cons' others).
"12. Has stolen items of nontrivial value without confronting a victim (e.g., shoplifting, but without breaking and entering; forgery).
"Serious Violations of Rules
"13. Often stays out at night despite parental prohibitions, beginning before age 13 years.
"14. Has run away from home overnight at least twice while living in the parental or parental surrogate home, or once without returning for a lengthy period.
"15. Is often truant from school, beginning before age 13 years.
"B. The disturbance in behavior causes clinically significant impairment in social, academic, or occupational functioning.
"C. If the individual is age 18 years or older, criteria are not met for antisocial personality disorder." (DSM-V, pp. 469-470.)
We would not ordinarily consider ourselves qualified to deem a health professional's diagnosis erroneous, but the error in this instance is straightforward and objectively verifiable based on the undisputed facts in the record. Lundgren did not purport to find evidence of conduct disorder before age 15, since she thought the criterion was oppositional defiant disorder; and in any case we do not see how the limited childhood records examined by Lundgren could possibly have allowed her to make a finding of conduct disorder before age 15 had she attempted to do so. Her erroneous diagnosis of antisocial personality disorder was an important, even a fundamental feature of her overall picture of Asberry of a person of average or nearly average intelligence using a pathological deviousness to try to get away with murder.
When interpreting Asberry's performance on the Arrow-Dot Test—a test the purpose of which in the context of a competency evaluation was never explained—Lundgren appeared to take anything Asberry could do as a sign of either cleverness or deviousness. When he solved a problem, it showed creativity. When he failed, it showed he was unwilling to make an effort unless he would receive a benefit. Lundgren did not explain what benefit Asberry gained or missed when he solved or failed to solve problems on the test.
Asberry's responses on the CAI also provided little support for Lundgren's finding of competency. He told her he had not been arrested or incarcerated before, despite his juvenile record; but if this was an effort to deceive, it was an inept one, hardly indicative of legal aptitude. Asberry could not realistically hope to conceal his juvenile record from a psychologist sent by the court to evaluate him. Similarly, his claims not to know what he had been charged with and his insistence on his innocence were not signs of strategic intelligence. Incompetent defendants do not always confess. It meant little or nothing that Asberry was dumbfounded when Lundgren asked why, if he was innocent, his mother did not try to interfere with the police, or whether there was someone in the world who looked just like him. These were peculiar questions and it is difficult to see what they were meant to reveal, although Lundgren seemed to think she had caught him in something when he had nothing to say in response to them. Asberry's refusal to draw a time line for his alibi could have been a matter of inability to draw time lines, or it could have been an indication that the alibi was false, but neither possibility provides support for a theory of competence. His responses about the arrangement of the courtroom and his interactions with his attorney indicated nothing more than a weak understanding of the process and a dearth of contacts between him and his attorney.
In discounting Asberry's intellectual disability, Lundgren placed emphasis on the lack of any record among those she saw of a referral to the regional center. The lack of such a record did not prove that the referral was not made, however. After all, the records provided to the evaluators were hardly complete records of his schooling and childhood psychiatric treatment, and they also failed to show that Asberry attended Rafer Johnson Children's Center. Even if the regional center referral was not made, that would not prove it was not appropriate. A child expelled from the school district in kindergarten and attending a patchwork of schools afterward might easily fall through the cracks. Similar considerations apply to Lundgren's reliance on the facts that she saw no records that Asberry was diagnosed as retarded before his arrest on the current charges or that he received no immediate mental health screening when he was booked. A lack of care—and even more so a mere failure of records of care to be included in the file presented to an evaluator during competency proceedings—is highly circumstantial as evidence of a lack of a psychiatric condition, to say the least. In any event, Lundgren's belief in a lack of childhood indicators of serious impairments was refuted by the testimony of Asberry's mother.
Similarly dubious is Lundgren's view that Asberry would have had special housing while in jail awaiting trial in this case if he had been significantly impaired, since the other prisoners would have requested his removal had he been "acting crazy." If Asberry's demeanor in jail was as described by Longwith—passive and withdrawn—there might have appeared to be no reason to change his housing.
Lundgren's reaction to Asberry wearing his shirt backwards, putting toothpaste on his face, and holding a pencil incorrectly were reasonable enough. As efforts to deceive, however, they were primitive and transparent. There were good illustrations of the fact, which Lundgren conceded, that a person faking symptoms can still be incompetent. Lundgren herself said Asberry likely was told to do such things by other inmates. They were probably not signs of a devious plot of his own devising. They were instead consistent with a picture of a mentally retarded teenager doing as more sophisticated criminals told him.
Lundgren thought Asberry was trying to appear disabled—and instead revealing a manipulative intelligence—because he was likely to say he did not know when asked a test question but not when engaged in general conversation. It is at least equally probable, however, that Asberry was more forthcoming in general conversation than in testing because testing is more likely to be perceived as (and often more likely actually to be) difficult and intimidating than general conversation.
Finally, Lundgren remarked that a sign of malingering is trying to seem to have too many psychiatric conditions. As she put it, Asberry tried to seem to have a little mental retardation, a little brain damage, and a little psychosis. The facts presented by the other evaluators, however, supported the proposition that Asberry really had symptoms of each of these.
To summarize, Lundgren's evaluation was an amalgam of false premises and weak inferences. When her misapplication of the diagnostic criteria for antisocial personality disorder is seen in light of her mismeasurement of Asberry's IQ and her inclination to view various chimeras as signs of intelligence and deceptiveness or disproofs of impairment, it would seem she made a simple but drastic mistake: she mistook a mentally retarded teenager with mild mental illness for a psychopath of average or nearly average intelligence. As a route to a wrong conclusion, Lundgren's evaluation was different from the court's statement of decision, but it was no better. Substantial evidence in support of the judgment cannot be found there.
It might be supposed that because a single expert's opinion can be sufficient to support a finding, Lundgren's evaluation, despite its defects, must amount to substantial evidence even though contradicted by the others. This is incorrect for two reasons. First, as we have said, under the substantial evidence standard, we do not consider evidence supporting the judgment in isolation. We consider the entire record. One expert opinion can reveal another to be insufficient even if the insufficiency would have been hard to discern in the single opinion standing alone. Second, while a single expert opinion of course can amount to substantial evidence supporting a finding, it also can fail to do so. This is a case in which the insufficiency of the one expert evaluation supporting the judgment would not have been especially hard to discern even without the aid of the other two evaluations.
There was another error in the competency proceedings that has not been noted by the parties in their appellate briefs. Section 1369, subdivision (a), requires the court to appoint the director of the regional center to evaluate the defendant "[i]f it is suspected the defendant is developmentally disabled." This was not done even though it was both suspected and found that Asberry was developmentally disabled (i.e., in his case, mentally retarded). In People v. Leonard (2007) 40 Cal.4th 1370, 1391, however, our Supreme Court held that a failure to comply with this provision was harmless error where other personnel qualified to evaluate the developmentally disabled defendant were appointed instead, and where the evaluation satisfactorily analyzed the developmental disability. Given our disposition, we need not consider the issue further. The trial court and the parties should bear the requirement in mind in any future competency proceedings, however.
In summary, the trial court's finding of competency was founded on inadequate facts and unwarranted inferences. Our own examination of the entire record does not reveal other substantial evidence upon which a finding of competence could have been based. Instead, it brings to mind the discussion found in psychological literature of "sanism" in competency proceedings. This is the phenomenon whereby courts and evaluators are induced to minimize and disregard signs of impairment, and to exaggerate and imagine signs of competence, under the pressure of a felt need to prioritize punishment of the guilty. (See, e.g., Siegert & Weiss, Who Is an Expert? Competency Evaluations in Mental Retardation and Borderline Intelligence (2007) 35 Journal of the American Academy of Psychiatry and the Law 346, 348-349 [discussing M.J.K., supra, and finding the trial court there subject to sanism but the appellate court free of it].) The finding of competence was erroneous under the substantial evidence standard. Asberry was incompetent to stand trial and the conviction consequently must be reversed.
As of June 12, 2017, this article was available online at <jaapl.org/content/jaapl/35/3/346.full.pdf>. --------
Other issues
Asberry's briefs raise a number of other issues. These include a cruel-and-unusual-punishment challenge to the imposition of a sentence of life without parole on a mentally retarded 18 year old, as well as challenges to admission of gang evidence based on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and People v. Elizalde (2015) 61 Cal.4th 523. These issues are rendered moot by our ruling on the competency issue.
On August 15, 2016, Asberry's appellate counsel filed an application to expand his appointment to allow him to file a petition for a writ of habeas corpus alleging ineffective assistance of counsel in connection with the Sanchez issue. We deny this application as moot.
DISPOSITION
The judgment is reversed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
PEÑA, J.