Opinion
G062396
12-16-2024
THE PEOPLE, Plaintiff and Respondent, v. BRYAN MEJIA, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Kristen Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 18WF1095 Scott A. Steiner, Judge. Reversed and remanded with directions.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Kristen Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOTOIKE, ACTING P. J.
Bryan Mejia appeals from a judgment entered after a jury convicted him of attempted murder. Mejia argues the trial court committed reversible error by failing to hold competency proceedings under Penal Code section 1368 (all undesignated statutory references are to this code), because there was substantial evidence of a change in circumstances after a prior finding of Mejia's competency. We agree and reverse.
FACTS
In 2014 and 2016, Mejia was placed on a Welfare and Institutions Code section 5150 hold and hospitalized. During these prior hospital stays, Mejia was diagnosed with schizophrenia.
Under Welfare and Institutions Code section 5150, subdivision (a), "a person, as a result of a mental health disorder," who "is a danger to others, or to themselves," may be taken into custody for "up to 72 hours" for evaluation and treatment.
In May 2018, Mejia was living with his 66-year-old mother after his recent release from a psychiatric hospital. At some point, he had been asked to move out by his mother because he refused to help, work, or do anything. Mejia moved out in mid-May 2018. On the same day of his move, he sent text messages to his older sister, indicating "he was living in the streets" and blaming his mother for his problems.
Early the next morning, Mejia's mother was about to open the door to her car that was parked in her home's driveway when she felt a blow to her head from behind. Mejia's brother and another sister, both of whom lived in the home, heard screaming and walked outside. Mejia ran away with a long object, and Mejia's brother gave chase.
Mejia fled to a restaurant, where he locked himself inside. When law enforcement arrived, an officer spoke to Mejia through a glass door. The officer testified at trial, "I could hear [Mejia] say that he didn't want to get hurt and it was self-defense and something to the effect that he wasn't crazy." Mejia eventually came outside and was arrested. Inside the restaurant, law enforcement recovered a katana-style sword, a second broken sword, and a pocketknife.
When law enforcement arrived at the home, an officer observed Mejia's mother incurred several injuries. She had some cuts on her scalp and face and multiple cuts on her left hand. She was transported to a hospital for treatment.
PROCEDURAL BACKGROUND
In September 2018, the prosecution filed an information against Mejia, charging him with the deliberate and premeditated attempted murder of his mother (§§ 664, subd. (a), 187, subd. (a).) The prosecution further alleged Mejia used a sword and knife, "a dangerous and deadly weapon" (§ 12022, subd. (b)(1)), and Mejia personally inflicted great bodily injury on his mother (§ 12022.7, subd. (a)).
In May 2022, the prosecution amended the information to include allegations of factors in aggravation.
Two days later, defense counsel declared a doubt as to Mejia's competence. The court suspended criminal proceedings under section 1368. In October 2018, the court found Mejia was mentally incompetent to stand trial under section 1367, subdivision (a). A month later, the court ordered Mejia committed to Atascadero State Hospital (Atascadero) under section 1370.
At Atascadero, Mejia was treated for schizophrenia. We discuss below his symptoms when summarizing the trial testimony by the defense expert, a forensic neuropsychologist. In April 2019, the Department of State Hospitals (Department) secured a court order to administer involuntary antipsychotic medication to Mejia. While Mejia was at Atascadero, the Department prepared three progress reports.
In the Department's final report dated June 2020, an evaluator observed, "Insight into his mental illness has improved but remains limited because even though he accurately identified his diagnosis, he remains ambivalent regarding need for medication." Mejia believed the prosecution had "a strong case" against him. He intended to plead no contest and seek a plea bargain. But, if he were "given a significant sentence," he said he would plead not guilty. Mejia "denied wanting to testify for 'I don't want to incriminate myself.'" He "did not display any delusions, paranoia or hallucinations. When asked [about] prior delusions (e.g., wanting to kill or harm others, that there was another Br[i]an Mejia, that he was abused by his family), he recanted and attributed them to his mental illness. He maintained his stance with repeated inquiry during the interview. At no time did he become fixed or preoccupied with any of these notions. His overall understanding is good at this time."
The evaluator recommended: "In order to maintain trial competency, Mr. Mejia should take his medication exactly as prescribed." At that time, Mejia was prescribed 40 milligrams of a particular medication, among others.
In July 2020, Atascadero's medical director certified Mejia as competent. In an accompanying letter, the medical director wrote Mejia "is being returned to court on psychotropic medication. It is important that the individual remain on this medication for his own personal benefit and to enable him to be certified under [s]ection 1372."
In July 2020, Mejia returned to the custody of the Orange County Sherriff's Department. In May 2021, the court held a hearing to determine whether Mejia had returned to competency. The parties agreed he had been restored to competency and submitted on the reports by the Department. The court concluded: "The court has read and considered the report from the Department . . . indicating that this defendant has been restored to competency and finds that he is now competent."
A jury trial occurred in December 2022. After the prosecution rested, Mejia filed a waiver under Faretta v. California (1975) 422 U.S. 806 at pages 834 to 835 (Faretta) to relieve his appointed counsel and represent himself. During the hearing on Mejia's Faretta waiver, the trial court instructed Mejia to stop writing, to which Mejia replied, "I can do whatever the fuck I want." The trial court responded: "You can't speak that way to me. How dare you?" Mejia retorted, "Freedom of speech," and he proceeded to argue with the trial court. The trial court later inquired, "Have you ever been treated for any emotional or mental illness?" Mejia said, "Not legitimately." Mejia stated he was taking antipsychotic medication, but he did not "have to take [medication] because they reduced [the dose] from 40 to 20 to 10 to 5" milligrams. He said he had been committed to a psychiatric hospital three times. He proposed subpoenaing his doctor in Fountain Valley, California, who could "certify" he was sane. When the trial court asked Mejia to explain his plan for trial, Mejia said, "Make an opening statement, the basics of the case that it's not true, that the witnesses that weren't even there. It was just my mother during the alleged crime. That was it." The trial court denied Mejia's Faretta waiver.
We note Mejia had a different judge and attorney for trial than he had for his competency hearings.
The trial court explained to Mejia that he had the right to testify and the right not to testify, and warned him about the risks of testifying. When the trial court questioned Mejia whether he planned to testify, Mejia replied he would. The trial court inquired, "[D]o you understand you have to answer the questions that are asked of you?" Mejia replied, "I could plead the fifth." The trial court responded, "You don't get to decide which questions you want to answer." Mejia stated: "I can stop talking and start talking any time I want. It's just an invasion of privacy with what I testify what private confidential, sensitive information that my attorney and the D.A. is going to ask me on the stand and there's a bunch of people here in court." Defense counsel indicated Mejia was going against his counsel's advice.
At trial, a forensic neuropsychologist testified on behalf of the defense. She defined schizophrenia as "a major mental illness in which a person has trouble on some level differentiating what is real from what is not real." Symptoms could include "delusions where you have beliefs that are so strong you cannot be talked out of them about things that other people would agree are not happening." She explained, following Mejia's arrest, "the jail psychiatrist determined that he was suffering from a mental illness," and court-appointed doctors determined he was not able to "understand the charges against him" and "to cooperate with counsel in developing a defense." These doctors reported Mejia denied having any mental illness. They said Mejia admitted being hospitalized previously but attributed those hospitalizations to mistaken identity-he believed there was another "Brian Mejia" (whose first name was spelled differently than his) who committed offenses. These doctors stated Mejia "said he was arrested on two false charges in this case" and "he acted in self-defense." Mejia "denied prior diagnoses and prior medical need of any kind," said "he had been falsely restrained by his parents," "denied that he needed to be [taking] or would take psychiatric medications for his condition," and stated "he was sane." Mejia made these statements four to five hours after the attack on his mother.
The forensic neuropsychologist testified, after Mejia was sent to Atascadero, the doctors there concluded Mejia had "'schizophrenia continuous,'" apparently meaning his schizophrenia symptoms continued, despite improving, even after he was medicated. At Atascadero, Mejia refused medication the first six months. After the Department obtained an order to administer medication involuntarily, Mejia took medication and exhibited "modest improvements but he was still delusional." Mejia "was a little bit better able to understand and to cooperate with counsel" in developing a defense. She did not know whether Mejia was continuing to take medication. She knew "he had reduced it significantly . . . last time [she] saw him[, b]ut he had said that he was going to take it because he did not want to have to be sent back to the state hospital." She testified Mejia thought the medication did "nothing for him." She opined, based on the medical records, the medication modestly improved Mejia's symptoms "but he was still delusional."
The forensic neuropsychologist saw Mejia twice in 2022 and gave him a cognitive test. She found he was "extremely defensive" and "present[ed] himself in a very unrealistic way." She opined "all the evidence together is consistent with a diagnosis of schizophrenia." She believed, at the time of the incident involving his mother, Mejia was suffering from delusions. She said he "long had delusions about other people, including the hypothetical extra Br[i]an Mejia" and his mother being the cause of his problems. While Mejia admitted being present during the attack on his mother, he asserted he was acting in self-defense.
She opined medication is generally "more effective for hallucinations than it is for delusions." She believed "it does help but it doesn't have a dramatic effect" on people with delusions. She testified Mejia was still suffering from delusional beliefs. She explained Mejia's "thinking processes are altered by the delusions and . . . self-deception."
At trial, Mejia took the witness stand. He initially refused to swear or affirm to tell the truth, but eventually did. He testified, at the time of the incident with his mother, he "took vigilante action." He explained, "I took the law into my hands, like Kyle Rittenhouse, which he was found not guilty for taking the law into his own hands. He actually killed three people. And I didn't kill anybody, because, well, I got fed up; right?" He elaborated: "[A]ccording to the provocative act doctrine, you can take the law into your own hands if someone provokes you to take it to defend yourself by all means, right, for survival. [¶] And according to the continuous act doctrine, meaning you're continually being mistaken for a different person again and again . . . by [law enforcement agencies], and it goes on for hospitals; right. Nobody does jack shit. Cops, they do a sloppy-ass job, half-assed." The trial court instructed him to stop using profanity, but Mejia retorted, "Freedom of speech."
Mejia admitted hitting his mother with a sword. His reasons were: "[S]he threatened me. She put me in severe danger and put me in a mental hospital again, right. And I really do believe that I was going to be in danger again, because I did research that says that if somebody puts you in severe danger to prevent a rape, for example, a woman, you can legally kill your assailant." He explained, "I went to two mental hospitals without a legitimate reason. I wasn't a danger to others.... I wasn't gravely disabled by a mental disorder." He said "bad things happen in mental hospitals. People abuse other people and I don't want to go through that process again."
During the trial proceedings, Mejia's trial counsel did not raise a doubt as to Mejia's competence. The jury found Mejia guilty as charged and found the allegations true. The trial court sentenced him to a term of 11 years to life. Mejia timely appealed.
DISCUSSION
Mejia argues the trial court erred by not initiating competency proceedings under section 1368 because there was substantial evidence of a change in circumstances. He also asserts his trial counsel provided ineffective assistance of counsel by failing to declare a doubt as to his competency. We agree the trial court erred by not initiating competency proceedings. As a result, we need not address Mejia's ineffective assistance of counsel claim.
I.
STANDARD OF REVIEW
"'The decision whether to order a competency hearing rests within the trial court's discretion, and may be disturbed upon appeal "only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion."' [Citation.] '[A]bsent a showing of "incompetence" that is "substantial" as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial.'" (People v. Parker (2022) 13 Cal.5th 1, 29 (Parker).)
II.
THE TRIAL COURT SHOULD HAVE DECLARED A DOUBT
AS TO MEJIA'S COMPETENCE
"The constitutional guarantee of due process forbids a court from trying or convicting a criminal defendant who is mentally incompetent to stand trial." (People v. Rodas (2018) 6 Cal.5th 219, 230 (Rodas).) Section 1367, subdivision (a) incorporates this constitutional standard. (Ibid.) It provides: "A defendant is mentally incompetent . . . if, as a result of a mental health 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).)
Under section 1368, a trial court must suspend criminal proceedings and commence competency proceedings "if 'a doubt arises in the mind of the judge' regarding the defendant's competence (id., subd. (a)) and defense counsel concurs (id., subd. (b))." (Rodas, supra, 6 Cal.5th at p. 231.) Section 1368, subdivision (a) means that, "[i]f the court is presented with substantial evidence of mental incompetence-whether or not defendant is its immediate source-the court must declare a doubt about the question and initiate an inquiry, including obtaining a formal opinion from defense counsel and appointing defense counsel if the defendant is proceeding pro se. (See § 1368, subd. (a).)" (People v. Wycoff (2021) 12 Cal.5th 58, 82 (Wycoff).) "[S]ubstantial evidence of mental incompetence necessarily raises such a doubt irrespective of whether other evidence, including the court's own observations, suggests the defendant is competent." (Ibid.) "When faced with conflicting evidence regarding competence, the trial court's role under . . . section 1368 is only to decide whether the evidence of incompetence is substantial, not to resolve the conflict. Resolution must await expert examination and the opportunity for a full evidentiary hearing." (Rodas, supra, 6 Cal.5th at p. 234.)
"[S]ubstantial evidence for this purpose is evidence 'that raises a reasonable or bona fide doubt' as to competence.'" (Rodas, supra, 6 Cal.5th at p. 231.) "The word 'substantial' does not mean that for a doubt to arise, there must be a large quantity of evidence of a defendant's incompetence; rather, it means that there must be some evidence of sufficient substance that it cannot be dismissed as being inherently unpersuasive." (Wycoff, supra, 12 Cal.5th at p. 83.) "Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations." (People v. Rogers (2006) 39 Cal.4th 826, 847.)
A trial court's "duty to assess competence is a continuing one." (Rodas, supra, 6 Cal.5th at p. 236, fn. 5.) "A trial court's duty to conduct a competency hearing may arise at any time before entry of judgment. [Citation.] However, after a defendant is found competent, the court need not conduct a second competency hearing unless presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of the earlier finding." (People v. Tejeda (2019) 40 Cal.App.5th 785, 793 (Tejeda).) "The evidentiary standard by which the trial court evaluates" this "showing is substantial evidence." (People v. Easter (2019) 34 Cal.App.5th 226, 242.)
We find Rodas instructive. In Rodas, experts determined a defendant, who had schizophrenia, was incompetent to stand trial because of "'fragmented' thought processes, 'rambling' and 'nonsensical' speech," and delusions. (Rodas, supra, 6 Cal.5th at p. 232.) The defendant was committed to a state hospital. (Id. at pp. 224-225.) Eventually, the Atascadero medical director certified the defendant as competent. (Id. at pp. 225-226.) The Department's report warned the defendant should follow his medication regimen "'to prevent mental decompensation and maintain competency related abilities.'" (Id. at p. 226.) In a letter addressed to the court, the Atascadero medical director cautioned: "'It is important that [defendant] remain on this medication . . . to enable him to be certified under [s]ection 1372 of the Penal Code.'" (Ibid.) The trial court "'inferentially found him competent based upon the doctor's letter.'" (Ibid.) At trial, after jury selection and opening statements, defense counsel declared a doubt regarding the defendant's competence. (Id. at p. 227.) At a hearing, the trial court learned the defendant was not taking his medication and his symptoms had worsened, but after engaging in a colloquy with the defendant, the court indicated the trial could continue. (Id. at p. 229.) Against the advice of counsel, defendant testified at trial, and the trial court struck much of his testimony as irrelevant. (Ibid.) The jury convicted the defendant of murder and attempted murders. (Id. at p. 230.)
The California Supreme Court reversed. It found substantial evidence of mental incompetence and a change in circumstances sufficient to hold a new competency hearing. (Rodas, supra, 6 Cal.5th at pp. 233, 235.) The prior competency finding was based solely on the defendant's continued compliance with his medication regimen. (Ibid.) At a hearing, the trial court learned the defendant stopped taking his medication and was exhibiting symptoms similar to those when he was found to be incompetent. (Ibid.) Rodas held: "[W]hen a formerly incompetent defendant has been restored to competence solely or primarily through administration of medication, evidence that the defendant is no longer taking his medication and is again exhibiting signs of incompetence will generally establish such a change in circumstances and will call for additional, formal investigation before trial may proceed. In the face of such evidence, a trial court's failure to suspend proceedings violates the constitutional guarantee of due process in criminal trials." (Rodas, supra, 6 Cal.5th at p. 223.)
The present case resembles Rodas. As in Rodas, Mejia's prior competency finding was effectively conditioned on his continued compliance with his medication regimen. The trial court here based its competency finding on the Department's report. In the final report, the evaluator warned, "In order to maintain trial competency, Mr. Mejia should take his medication exactly as prescribed," which, at that time, was 40 milligrams of a particular medication. And, in a letter accompanying Mejia's competency certification, the Atascadero medical director cautioned: "It is important that the individual remain on this medication for his own personal benefit and to enable him to be certified under [s]ection 1372."
At the Faretta hearing, the trial court was presented with facts inconsistent with the assumptions undergirding Mejia's competency finding. Mejia disclosed he was taking antipsychotic medication, but he did not "have to take [medication] because they reduced [the dose] from 40 to 20 to 10 to 5" milligrams. Later, at trial, the forensic neuropsychologist testified Mejia had reduced his medication intake "significantly." In short, the trial court was faced with sufficient evidence showing Mejia significantly reduced his medication and was not adhering to the medication regimen upon which his competency hinged.
Additionally, in the trial court, Mejia displayed symptoms resembling those he exhibited when he was deemed incompetent. At the Faretta hearing, Mejia stated his intent to testify, against the advice of counsel, and asserted he was not legitimately treated for mental illness. And, during his trial testimony, his delusional beliefs resurfaced. He alluded to his theory of mistaken identity, testifying: "[A]ccording to the continuous act doctrine, meaning you're continually being mistaken for a different person again and again . . . by [law enforcement agencies], and it goes on for hospitals; right. Nobody does jack shit. Cops, they do a sloppy-ass job, half-assed." He believed he had the right to kill people who wronged him, invoking the "provocative act doctrine" and explaining: "you can take the law into your own hands if someone provokes you to take it to defend yourself by all means, right, for survival." He believed his attack was self-defense against his mother's abuse, testifying, "[S]he threatened me. She put me in severe danger and put me in a mental hospital again, right. And I really do believe that I was going to be in danger again." He suggested he was not suffering from a mental illness.
As indicated ante, Mejia's trial counsel did not raise a doubt as to Mejia's competence during the trial proceedings, which is concerning. We note Mejia appeared to struggle to cooperate with his counsel. He requested a hearing under People v. Marsden (1970) 2 Cal.3d 118. He also entered a Faretta waiver, but it was denied.
This behavior was starkly different from the time he was found competent. According to the Department's last report in June 2020, Mejia "did not display any delusions, paranoia or hallucinations. When asked [about] prior delusions (e.g., wanting to kill or harm others, that there was another Br[i]an Mejia, that he was abused by his family), he recanted and attributed them to his mental illness." He stated he would not testify at trial.
This evidence fits squarely within Rodas's general rule: "when a formerly incompetent defendant has been restored to competence solely or primarily through administration of medication, evidence that the defendant is no longer taking his medication and is again exhibiting signs of incompetence will generally establish such a change in circumstances and will call for additional, formal investigation before trial may proceed." (Rodas, supra, 6 Cal.5th at p. 223.)
The Attorney General argues there were no grounds to conduct competency proceedings by pointing to the inaction by defense counsel, the trial court judge, and the defense expert. The Attorney General contends defense counsel, who had once declared a doubt as to Mejia's competence, was on notice of competency issues but did not raise a doubt later. However, the defense counsel who previously expressed a doubt as to Mejia's competency was not the same counsel who represented Mejia during trial. While it is significant Mejia's defense counsel at trial did not raise a doubt, "'"trial counsel's failure to seek a competency hearing is not determinative."'" (Parker, supra, 13 Cal.5th at p. 31.) As for the trial court judge, although he was not the same judge who presided over Mejia's prior competency hearings, we discuss above there was substantial evidence before him indicating mental incompetence and a change in circumstances. The defense expert was not asked about Mejia's competency to stand trial during her testimony; her testimony focused on his mental state at the time of the alleged crime.
The Attorney General contends a disagreement regarding a particular defense theory does not show incompetence. But Mejia's delusional theory of self-defense was not, as we discuss above, the only delusional belief that manifested again at trial. He exhibited several delusions at trial mirroring those he had exhibited when he was previously found incompetent to stand trial.
The Attorney General also asserts the issue of Mejia's medication compliance did not necessitate another competency hearing because Mejia indicated to the defense expert and the trial court that he was taking a certain amount of medication. But this argument ignores Rodas and the prior competency finding premised on the Department's report. It is therefore unconvincing.
Finally, the Attorney General argues "'evidence of mental illness alone is not sufficient to raise a doubt about a defendant's competence to stand trial,'" quoting People v. Ghobrial (2018) 5 Cal.5th 250, 271. The Attorney General argues "'more is required to raise a doubt of competence than the defendant's mere bizarre actions or statements' (People v. Medina (1995) 11 Cal.4th 694, 735) or a manifestation of the 'same arguably delusional beliefs' reported previously (People v. Lawley (2002) 27 Cal.4th 102, 136)."
The circumstances here are different. As in Rodas, "the evidence before the trial court made it unreasonable to continue to rely on the prior competence finding in allowing the trial to proceed." (Rodas, supra, 6 Cal.5th at p. 235.) The May 2021 competency finding occurred after an incompetence finding in October 2018. In between, Mejia took antipsychotic medication and was committed to Atascadero. The May 2021 competency finding was based on the Department's report, which provided: "In order to maintain trial competency, Mr. Mejia should take his medication exactly as prescribed." In this context, the evidence the trial court faced at the Faretta hearing and trial indicated a substantial change in circumstances since May 2021. The trial court learned Mejia significantly reduced his antipsychotic medication "and was again displaying symptoms similar to those he exhibited during prior bouts of incompetence." (Rodas, supra, 6 Cal.5th at p. 235.) Thus, "[f]ar from duplicating the evidence considered in the course of making the prior competency finding, this new information painted a starkly different picture from that contained in the" Department's last report dated June 2020. (Ibid.)
III.
A RETROSPECTIVE COMPETENCY TRIAL IS INFEASIBLE
The Attorney General contends, if we conclude, as we have done here, the trial court was required to hold another competency hearing, the proper remedy is to remand to the trial court for a retrospective competency trial. A retrospective competency trial "is an opportunity to cure the trial court's error by giving the defendant a competency trial that is comparable to the one he or she should have been given but was denied." (Wycoff, supra, 12 Cal.5th at p. 92.) "[T]he critical question in determining whether a retrospective competency hearing is feasible is whether there is 'sufficient evidence to reliably determine the defendant's mental competence when tried earlier.' [Citation.] The burden of proof in a retrospective hearing is on the defendant, and feasibility requires finding that such a hearing 'will provide defendant a fair opportunity to prove incompetence, not merely [that] some evidence exists by which the trier of fact might reach a decision on the subject.'" (Rodas, supra, 6 Cal.5th at pp. 239-240.) "When a court is determining whether conditions are sufficiently comparable for a fair hearing and a reliable result, relevant considerations include: '"'"(1) [t]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with [the] defendant before and during trial."'"'" (Wycoff, supra, 12 Cal.5th at p. 94.)
"When courts have permitted retrospective hearings, they have generally done so in cases involving unusual circumstances where reliable evidence of the defendant's mental condition at the time of trial would be available at the hearing." (Rodas, supra, 6 Cal.5th at p. 241.) "But where, as is typically the case, the defendant exhibits fluctuating symptoms, significant time has passed, or there is a lack of contemporaneous expert evaluations, reliable retrospective evaluation is simply not feasible." (Tejeda, supra, 40 Cal.App.5th at p. 796.)
Here, two years have passed since the omitted hearing. Although shorter than the five years in Rodas, supra, 6 Cal.5th at page 240, that is still a considerable amount of time. Significantly, the availability of contemporaneous medical evidence is lacking. The defense expert-the forensic neuropsychologist-conducted a psychological evaluation of Mejia in 2022 before trial began, but nothing in the record indicates she assessed his competency to stand for trial. The medical records from Atascadero are at least four years old. Because of the lack of contemporaneous medical evidence (and the somewhat considerable passage of time), a retrospective competency trial is not feasible. It would not place Mejia "'"in a position comparable to the one he would have been placed in."'" (Wycoff, supra, 12 Cal.5th at p. 94.)
DISPOSITION
We reverse the judgement and remand the matter to the trial court to conduct a new competency hearing. Mejia may be retried on the charges for which he was convicted if he is presently competent to stand trial.
WE CONCUR: DELANEY, J. GOODING, J.