The PEOPLE, Plaintiff and Respondent, v. Dora BUENROSTRO, Defendant and Appellant., 240 Cal. Rptr. 3d 704

Opinion of the Court by Kruger, J. After a jury found defendant Dora Buenrostro competent to stand trial, a separate jury convicted her of the first degree murders of her children, Susana, Vicente, and Deidra. ( Pen. Code, § 187.) The jury found true three multiple-murder special-circumstance allegations (id. , § 190.2, subd. (a)(3) ) and allegations that defendant personally used a knife in the commission of each murder (id. , §§ 1192.7, subd. (c)(23), 12022, subd. (b) ). After a penalty trial, the same jury returned a verdict of death.

The trial court denied defendant's motion for a new trial and for modification of the verdict (id. , § 190.4, subd. (e) ) and sentenced her to death. This appeal is automatic. (Id ., § 1239, subd. (b).) We affirm the judgment as to guilt, vacate two of the three multiple-murder special-circumstance findings, reverse the judgment as to the sentence of death, and remand the matter for a new penalty determination. I. FACTS A. Guilt Phase The bodies of the three victims were found on October 27, 1994. Each victim had suffered fatal stab wounds.

Beginning on that date and continuing through her trial testimony, defendant blamed the murders on her estranged husband, Alejandro Buenrostro (who was known as Alex). In closing argument, however, the defense conceded that Alex, who had an alibi, could not have killed the children. The guilt phase focused on whether there was sufficient evidence to establish that defendant committed the murders and did so willfully and with premeditation and deliberation. 1. Prosecution Evidence Defendant and Alex were married in 1982.

Until their separation several years later, they lived in Los Angeles with their three children, Susana, Vicente, and Deidra (ages nine, eight, and four, respectively, at the time of the murders). Alex worked as an auto refinisher painter, and defendant worked for seven years as a file clerk and interpreter for a law firm. In 1990, defendant moved with the children to San Jacinto in Riverside County. Alex remained at the Los Angeles residence and saw the children twice a month. a.

Events of Tuesday, October 25, 1994 Between 5:00 and 6:30 p.m. on Tuesday, October 25, 1994, defendant was seen driving in her car with her three children. Around 6:30 p.m., defendant borrowed $10 from a neighbor, David Tijerina, for gasoline because she was going to drive to Los Angeles to see her husband. Tijerina watched defendant drive out of the apartment complex with Deidra in the car. Defendant arrived at Alex's residence in Los Angeles, alone and unannounced, about 11:00 p.m. and stayed for two hours. She asked to see Alex's gun. He removed the bullets, showed her the gun, and then put it away.

He asked defendant about the children, and she told him they were fine. At some point, defendant went to the kitchen and then approached Alex, who was in the bedroom. She was holding a steak knife and wearing a red glove. She made stabbing motions with the knife and asked Alex why he was afraid of dying. She threatened to hit him where "it hurts the most" because he had "never given her our separation." He called 911. Defendant swung at him with the knife a couple of times, but he was able to get away and ran outside. Police arrived within 20 minutes, at 1:15 a.m.

Defendant was standing in the doorway of the residence, holding the knife, but complied when police commanded her to drop it. She told the police she was there to pick up her child, whom she accused Alex of taking to buy shoes earlier in the day and not returning. The police observed no children at the residence or in defendant's car, a dark-colored four-door Oldsmobile lacking a child's car seat. The police advised her to return to San Jacinto and file a missing child report, and she left. b.

Events of Wednesday, October 26, 1994 On Wednesday, October 26, 1994, about 10:30 a.m., defendant went to the San Jacinto Police Department and reported to Officer Blane Dillon that her estranged husband had taken her youngest child two days earlier and not brought her back. The officer informed her law enforcement could not intervene unless her husband was in violation of a court order providing he was not permitted to visit with the child. Defendant left the police department. Later that day, about 2:00 p.m., defendant's sister, Angela Montenegro, saw her at a gas station in San Jacinto.

Defendant was alone and driving her black Oldsmobile, which had been washed and had water dripping from the back bumper. Neither Deidra nor a child's car seat was in the car. About 3:00 p.m., defendant's next door neighbor, Velia Cabanila, saw Susana and Vicente when they stopped briefly to play at her apartment after school. The children told Cabanila their mother had told them Deidra was with their father. Deidra had visited Cabanila's apartment the day before, by herself. About 7:00 p.m., another neighbor saw defendant looking over the wall of her apartment. c.

Events of Thursday, October 27, 1994 Cabanila's and defendant's apartments shared a common wall. On Thursday, October 27, 1994, about 3:00 a.m., Cabanila heard a "really loud thump," but no other noise, coming from defendant's living room. At 6:40 a.m., defendant entered the San Jacinto Police Department and reported to the desk clerk her husband was at her apartment with a knife. Police were immediately dispatched. The officers entered the apartment and found two of defendant's children, Susana and Vicente, lying on separate sofas in the living room, each covered as if sleeping.

Both were dead, with stab wounds to their necks. Another sofa was standing on its end at the entrance to the hallway, blocking the path to the bedrooms and the bathroom. Defendant admitted she had moved the sofa. Outside, defendant told police Alex had come to the apartment that morning. She let him in, and he went to the bathroom. Defendant thought he was acting strange, so she went to the police station to notify the police of his behavior. San Jacinto Police Detective Sergeant Frederick Rodriguez was assigned as lead investigator. At the police station, he interviewed defendant, who was not in custody.

Meanwhile, police focused their investigation on Alex. By 9:00 a.m., police located him at the office of his employer in Los Angeles and took him into police custody for questioning. By early the next morning, the police ruled him out as a suspect and released him from custody. Later, around 6:00 p.m., Deidra's body was discovered by children playing in an abandoned post office in Lakeview. A deputy with the Riverside County Sheriff's Department responded to the scene and saw Deidra strapped in a child's car seat. There was blood and visible trauma to her mouth and neck.

An object with a handle, possibly a screwdriver or pen knife, was stuck in her throat. Officer Dillon arrived at the scene about 7:30 p.m. to investigate. He had received information about the investigation from other officers during the course of the day. Based on inconsistencies in defendant's versions of events, police focused on her as a suspect. d. Physical evidence Defendant's car was removed from her apartment complex and processed for evidence. Her purse and camera case and a red knit glove were discovered in the trunk of the car.

DNA testing established that six blood samples obtained from defendant's car matched Deidra's DNA profile. Defendant, Alex, Susana, and Vicente were eliminated as sources for the blood. Hairs found on Deidra's hand and leg were determined to be similar to defendant's. Tire impressions lifted from an area near the abandoned post office where Deidra's body was found matched the tread designs of the three different types of tires on defendant's car. e. Autopsy results All three children bled to death from multiple stab wounds to the neck.

Susana suffered defensive wounds to her right hand; four stab wounds to the front of her neck, two of which went into the bone of her spine; superficial cuts to her neck; and a perforation of her left chest cavity. The stab wounds ranged in depth from one to three inches. One stab wound severed the left subclavian artery and another cut halfway through the external jugular vein. These two injuries caused exceedingly rapid bleeding and likely rendered Susana unconsciousness in less than a minute.

Vicente suffered numerous defensive wounds on his hands, two stab wounds to the front of his neck, and abrasions and contusions on his neck and right clavicle. One of the stab wounds cut almost completely through the right common carotid artery, which comes from the heart. Vicente died from rapid bleeding, which likely rendered him unconsciousness in less than a minute. Deidra died from multiple stab wounds to her neck. A piece of a knife blade three-quarters of an inch wide by two to three inches in length had broken off and was embedded in the bone in her neck area.

A metallic tip of what appeared to be a ballpoint pen was found in the soft tissue of her neck. Deidra had suffered a perforation of the chest cavity and blunt force trauma to her skull, which was consistent with her head being slammed against the car seat while she was being stabbed. There were no defensive wounds on her body. Deidra's body exhibited signs of decomposition. The time of her death could not be determined. 2. Defense Evidence Defendant testified in her own defense.

On direct examination, she testified that the last time she saw Deidra was 9:00 or 10:00 a.m. on Tuesday, October 25, 1994, when Alex came to her apartment and took her. Between 11:00 a.m. and noon, defendant went to the San Jacinto Police Department to report Deidra missing. At 11:00 p.m. that night, defendant drove to Alex's residence in Los Angeles and checked the house for Deidra. She picked up a knife to defend herself during an argument with Alex. She threatened him but did not try to stab him, and she denied that she wore a red glove on her hand.

Alex called the Los Angeles Police, and defendant dropped her knife when ordered to do so. She complained to police that Alex had taken Deidra and had not returned her. When the police advised her to leave, she left and returned to San Jacinto. The following morning, defendant went to the San Jacinto Police Department seeking assistance regarding Deidra's disappearance. Defendant testified that at 5:00 a.m. on Thursday morning, October 27, 1994, Alex came to her apartment. When she let him in, he went straight to the bathroom.

Defendant left the apartment because of the Tuesday evening altercation with him in Los Angeles. She left Susana and Vicente in the apartment. She arrived at the police department between 5:30 and 6:00 a.m., telling police she had had an argument with Alex on Tuesday and he had taken her daughter. She asked them to check her apartment and speak with Alex. Defendant said he did not have a knife or other weapon. Defendant returned to her apartment complex with the police and waited outside. About 7:30 a.m., she was informed her children were dead.

Defendant went to the police department, where she remained all day for questioning. She denied killing the children, claiming someone had planted the blood evidence in her car. She had no explanation for the tire impressions that matched the tires on her car and said the red gloves found in the passenger compartment and trunk of her car belonged to a Betty Buenrostro. Defendant admitted having a prior felony conviction for grand theft. B. Penalty Phase 1.

Prosecution Evidence The prosecution presented evidence of defendant's prior conviction for grand theft, her violent conduct while incarcerated, and the impact of the murders on the victims' family members and on the community. a. Prior felony convictions ( Pen. Code, § 190.3, factor (c) ) The parties stipulated that defendant pleaded guilty to felony grand theft (Pen. Code, § 487.1) on September 1, 1988. b. Prior unadjudicated criminal activity involving the use of or express or implied threat to use force or violence ( Pen.

Code, § 190.3, factor (b) ) In February 1995, while awaiting trial in this case, defendant had a physical altercation with Deputy Johnnie Anaya and a nurse who was administering medications to inmates housed on the medical floor in the jail. The altercation occurred when defendant stepped outside her cell, refused an order to return to her cell, and raised her hand to the deputy and nurse. Defendant grabbed the nurse's arm and, when her hand slipped, held tightly onto her sleeve. Anaya forced defendant back into her cell.

The deputy and defendant struggled, fell to the floor, and struggled further before other deputies subdued defendant. Another incident occurred in May 1996. Deputy Stephanie Rigby was supervising inmates at the jail and permitted defendant to leave the day room. Defendant walked into a sally port area and removed a wringer from a custodial mop bucket. Observing her from a glass-enclosed control room, Deputy Rigby commanded her to return to the day room. Defendant refused to comply and held the mop wringer over her shoulder like a baseball bat.

When she refused to drop the wringer, back-up deputies were called to assist. A deputy had to physically remove the wringer from her grip. Defendant did not attempt to hit any of the deputies with the wringer. c. Victim impact testimony The prosecution presented the testimony of the victims' older half-sister, Alejandra Buenrostro, their father, Alex Buenrostro, and Deborah De Forge, the principal of the elementary school Susana and Vicente attended. The prosecution played a videotape of Alex at the police station showing the moment he learned Susana and Vicente had been murdered.

The prosecution also presented a video montage of photographs of the victims in life and their shared gravesite. 2. Defense Evidence Defendant testified on her own behalf, claiming she had been framed by police in general and Officer Blane Dillon in particular, whom she accused of having lied about the timeline of events and planting the incriminating evidence in her car. In her view, the expert had testified the hairs found on Deidra could have belonged to anyone. She denied being mentally ill.

Defendant maintained her innocence of the charges and wanted to be sentenced to life without the possibility of parole because she had been framed. The defense also presented testimony from defendant's former neighbor David Tijerina, niece Brenda Davalos, and sisters Martha Gudino and Maria Perez and their mother, Arcelia Zamudio. The evidence briefly sketched defendant's family background, portrayed her as a loving mother, and related a change in her attitude and behavior in the months preceding the murders. Defendant's family members asked for mercy. II. COMPETENCY PROCEEDINGS A.

Factual and Procedural Background Before trial, the trial court declared a doubt as to defendant's competence to stand trial and suspended the criminal proceedings under Penal Code

section 1368 for a competency determination. The question was submitted to a jury. At the competency trial, defense experts - psychologists Michael Perrotti and Michael Kania and psychiatrist Mark Mills - testified that defendant was not competent to stand trial. Court-appointed experts - psychiatrist Jose Moral and psychologist Craig Rath - testified that she was competent. The jury found defendant competent to stand trial. 1. Defense Evidence a. Psychologist Michael Perrotti Psychologist Michael Perrotti, Ph.D., spent 10 hours administering psychological tests and evaluating defendant in March and July 1995.

Defendant related to Dr. Perrotti that she had a ninth grade education and had been physically abused by her husband. Regarding her current circumstances, defendant reported that "everyone was against her," jail deputies conspired against her, she was being poisoned by a gas leak in her jail cell, she was hearing voices and acting aggressively to the point that she had to be handcuffed, and the medical staff at the jail was conducting experiments on her for research purposes. Defendant appeared depressed and confused. Her thoughts were disorganized and her speech pressured.

She suffered from significant impairment of memory and concentration caused by a mental disorder, and Dr. Perrotti believed there was "a possibility of a neuro-psychological problem." Dr. Perrotti did not perform neuropsychological testing because defendant would not cooperate. Dr. Perrotti opined defendant did not understand the legal system and had no insight into her lack of understanding. Everything with defendant was "clouded with suspicion, distrust, and [beliefs that] people are acting against her," all of which hindered her ability to work with her attorney or any attorney.

Defendant was aware of the murder charges against her but denied knowing who the victims were. She wanted to go to court so she could be released and return home. Dr. Perrotti diagnosed defendant as a paranoid schizophrenic. He did not include this diagnosis in his written report because he believed a description of defendant's behavior and her "problems" was easier to understand than a diagnostic label, and had not used the label "paranoid schizophrenic" with regard to defendant except with trial counsel. Over the course of Dr.

Perrotti's evaluation of defendant, trial counsel would occasionally ask him, "Do you think [defendant's] schizophrenic?" He admitted that his diagnosis of defendant as a paranoid schizophrenic did not necessarily mean that she was incompetent. Based on the test results, Dr. Perrotti found no signs defendant was malingering. b. Psychologist Michael Kania Psychologist Michael Kania, Ph.D., met with defendant on six or seven occasions before he evaluated her for competency during his visits on March 3 and April 17, 1995. He administered the Minnesota Multiphasic Personality Inventory (MMPI) on December 17, 1994.

Dr. Kania explained that although this psychological test is not relevant to the issue of competency, a determination of malingering can be made based on a comparison of the test results to the clinician's impressions. Dr. Kania found no evidence defendant malingered on the MMPI. He acknowledged defendant's scores had been evaluated by Dr.

Alex Caldwell's testing service, which produced a report stating her answers suggested "extensive intentional overstatement" and "some degree of deliberate malingering." The report also included a warning to use caution in interpreting defendant's test results because she did not answer all items. Based on his interviews with defendant, Dr. Kania diagnosed her as suffering from delusional disorder with paranoid delusions. For example, defendant thought her sister spoke a different language and had been influencing her children in this language. Defendant also believed gas was being pumped into her jail cell.

He concluded she was incompetent to stand trial; although she understood the nature of the charges against her and had a basic understanding of the legal proceedings, she could not rationally assist counsel. c. Psychiatrist Mark Mills Psychiatrist Mark Mills, M.D., met with defendant on November 16, 1994, and April 27, 1995, for a total of two hours. He questioned whether she had been forthcoming during the interviews and believed she may have been "paranoid but hiding symptoms." Defendant discussed her delusions with family members and others, but refused to talk with him about them.

He diagnosed her as suffering from "a significant psychotic disorder, probably a delusional disorder." Because her diagnosis rendered her unable to work rationally with any attorney, he believed her to be incompetent to stand trial. d. Psychiatrist Herminio Academia On February 26, 1995, Riverside County Mental Health Department staff psychiatrist Herminio Academia, M.D., treated defendant at the jail for about 20 minutes. Defendant was complaining her cell was too hot, she was being "cooked," and "gas was going to her cell." Dr.

Academia diagnosed defendant with a nonspecific psychotic disorder and prescribed Haldol to relieve her delusions and paranoia, but she refused the medication. e. Psychiatrist Austin Anthony On February 27, 1995, Riverside County Department of Mental Health staff psychiatrist Austin Anthony, M.D., treated defendant. She spoke in a rambling manner about the room being hot and about the smell of gas. She appeared friendly and cooperative and had good eye contact, but on occasion seemed confused and bewildered. She refused to take medication prescribed for her. On February 28, 1995, Dr.

Anthony's last appointment with defendant, he found her to be friendly and alert and no longer complaining of the gas smell. f. Testimony of defendant's family members and Regena Acosta Defendant's sisters Angela Montenegro, Martha Gudino, and Maria Perez described her delusions and bizarre behavior. For example, Montenegro testified that in July 1994, when she and her two children were living with defendant and her three children, defendant came home from church one day and took the tacos the children were eating, threw them in the garbage, and told Montenegro to move out.

On several occasions during the next month, defendant accused Montenegro of feeding defendant's children poisoned taco meat, being a witch, and turning into a snake and biting her (defendant'

s) leg. On cross-examination, Montenegro testified she and defendant had attended the same church, and the church asked her (Montenegro) to quit attending services because of a relationship she had with a man named Roberto. Defendant accused Montenegro of being a prostitute. Montenegro told the police that defendant's anger and name-calling might have had something to do with Roberto. Gudino visited defendant at the jail with their other sister, Perez, and their mother.

Trial counsel was also present during the visit and asked Gudino to persuade defendant to sign medical information release authorization forms for any medical provider who treated defendant during her life. For about an hour and 45 minutes, Gudino, Perez, and their mother tried to persuade defendant to sign the forms. She refused and told her family that they were against her. Regena Acosta read about defendant in the newspapers after the murders. She was motivated to minister to defendant and visited her in jail four or five times between about November 1994 and February 1995.

Acosta testified defendant told her she believed the jail guards were putting "stuff" in her food to make her sick. Defendant also told Acosta she did not understand what was going on at court. 2. Prosecution Evidence a. Court-Appointed Psychiatrist Jose Moral On March 25, 1995, court-appointed psychiatrist Jose Moral, M.D., examined defendant at the jail. She was alert and oriented and understood the purpose of his visit. She knew she had been charged with murdering her three children.

She demonstrated knowledge and understanding of the criminal legal process, including the various stages from arrest through trial and sentencing. Before having her children, she had been employed at a civil law firm as an assistant to the legal secretaries and worked with attorneys for about seven years. Defendant complained the proceedings were progressing too slowly. She denied having delusions or hallucinations and exhibited no psychotic symptoms during the interview. On July 26, 1995, Dr. Moral interviewed defendant a second time. Defendant again demonstrated knowledge of the legal system.

Her relationship with counsel had improved by this time. She explained that her preoccupation with the smell of gas in her cell stemmed from news reports about deaths in Riverside caused by exposure to gas fumes. She denied having the psychotic symptoms reported by other psychologists and psychiatrists and gave Dr. Moral reasonable explanations for the reported symptoms. Defendant had no thought disorder. She was able to carry out her interview with Dr. Moral without difficulty and was "purposeful in her answers," "cooperative," "reasonable," and "logical." Dr.

Moral believed defendant was competent to stand trial. During a break in the proceedings on the day he testified, Dr. Moral interacted with defendant and discussed competency issues with her. After this contact, Dr. Moral continued to believe defendant was competent to stand trial. b. Court-Appointed Psychologist Craig Rath Psychologist Craig Rath, Ph.D., was appointed on March 14, 1995, to evaluate defendant's competence to stand trial. Previously, on October 28, 1994, at the request of the Riverside District Attorney's Office, Dr. Rath had interviewed defendant for about an hour after her arrest.

He taped the interview, and the audiotape was played for the jury in its entirety. Defendant's demeanor during the interview was appropriate. She exhibited no signs of mental illness or psychosis putting her "out of contact with reality." Defendant's long-term and short-term memory were unimpaired. She communicated very well and protected information she did not want to share. Dr. Rath administered the MMPI to defendant. She completed 400 of 566 questions. Her answers showed a "saw-tooth profile," which is a classic sign of malingering. After Dr.

Rath was appointed by the court to evaluate defendant's competency, he unsuccessfully attempted to evaluate defendant on March 24, 1995, and April 3, 1995. Based on his October 28, 1994, interview with her shortly after the murders, Dr. Rath believed she was competent to stand trial because she "does not have any major mental illness [that] would preclude her from understanding what's going on or cooperating with her attorney." Although Dr.

Rath had first interviewed defendant shortly after her arrest, at the request of the District Attorney's office, he did not declare a conflict when the court appointed him on March 14, 1995, to render an opinion as to her competence to stand trial. Dr. Rath denied he had a conflict under the Board of Medical Quality Assurance Ethics Committee's standards. He testified he had contacted the committee and was told he had not acted unethically. Regarding his initial visit with defendant, Dr.

Rath pointed out it would have been unethical for him to refuse to see her, given she was potentially suicidal after the deaths of her three children. c. Jail Psychiatrist Romeo Villar Between October 28, 1994, and March 1, 1995, jail psychiatrist Romeo Villar, M.D., saw defendant several times while she was in custody. During his last contact with her in March 1995, defendant denied having hallucinations or suicidal ideations. Dr. Villar testified defendant had fair insight and judgment, and her affect was subdued. 3.

Defense Rebuttal Evidence Catherine Moreno, a paralegal employed by trial counsel, had had contact with defendant approximately 10 times by the time she testified at the competency trial. Moreno testified that defendant could not structure coherent paragraphs, although Moreno could not recall ever having read anything written by defendant. Moreno had never tried to talk with defendant about the facts of her case. Defendant refused Moreno's numerous requests to sign forms to authorize the release of information and failed to provide any explanation.

Moreno acknowledged she could have obtained the documents with a subpoena. Sherry Skidmore, Ph.D., a clinical and forensic psychologist, had served on local, state, and national psychological ethics committees. She reviewed the results of the MMPI test Dr. Rath administered to defendant. Based on those scores, Dr. Skidmore could not render an opinion as to whether or not defendant was malingering. In her opinion, no psychologist would determine malingering from MMPI results alone.

A determination of malingering depends on a number of objective measures, including a follow-up interview to clarify specific parts of the malingering assessment, such as distortion and over-reporting of symptoms. For a forensic psychologist to render an opinion regarding an individual's competence based on an interview not conducted for the purpose of determining competence would fall below the standard of care. 4. Surrebuttal On October 27, 1995, George Groth, a mental health clinician at the jail, saw defendant at her request. Defendant was anxious about her upcoming trial.

Groth found defendant's thinking clear and her speech understandable, and she exhibited no signs of mental illness. The parties stipulated this was the only time defendant was seen by the jail's Forensic Mental Health unit between September 1, 1995, and the day her competency trial commenced, October 26, 1995. The parties also stipulated that on November 1, 1995, a search warrant was served in defendant's jail cell. Two documents written by defendant in Spanish were confiscated during the search. B. Discussion 1. Constitutionality of the Definition of Incompetence to Stand Trial Under Penal Code

Section 1367, Subdivision (a), and CALJIC No. 4.10 The due process guarantees of both the federal and state Constitutions forbid the trial of a criminal defendant while he or she is mentally incompetent. (See People v. Mickel (2016) 2 Cal.5th 181, 194-195, 211 Cal.Rptr.3d 601, 385 P.3d 796.) In California, the determination whether a criminal defendant is competent to stand trial is governed by Penal Code

section 1367 (

section 1367 ), which provides that 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).) Consistent with that standard, the jury in this case was instructed with CALJIC No. 4.10 (Doubt of Present Mental Competence), which informed the jury that its task was to "decide whether the defendant is mentally competent to be tried for a criminal offense," and went on to explain: "Although on some subjects her mind may be deranged or unsound, a person charged with a criminal offense is deemed mentally competent to be tried for the crime charged against her if, one, she is capable of understanding the nature and purpose of the proceedings against her; two, she comprehends her own status and condition in reference to such proceedings; and, three, she is able to assist her attorney in conducting her defense in a rational manner. [¶] The defendant is presumed to be mentally competent.

The effect of this presumption is to place upon the defendant the burden of proving by a preponderance of the evidence that she is mentally incompetent as a result of a mental disorder." Defendant contends that the statutory definition of mental competence in

section 1367 is inadequate to safeguard a defendant's due process rights because it requires proof that a mental disorder or developmental disability rendered the defendant unable to understand the proceedings against him or her or to assist counsel with his or her defense. She also contends that both the statutory definition and CALJIC No. 4.10 are inadequate because they fail to require proof of (

a) both a "rational" and a "factual" understanding of the criminal proceedings, and (

b) a "present" ability to assist counsel in a rational manner. She contends these infirmities, separately and together, violated her right to substantive due process under the Fourteenth Amendment and require reversal of the entire judgment. Defendant's contentions lack merit. a. Legal background As a matter of due process, "[a] defendant may not be put to trial unless he ' "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him." ' " ( Cooper v.

Oklahoma (1996) 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498, quoting Dusky v. United States (1960) 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (per curiam) ( Dusky ).) A trial court's failure "to employ procedures to protect against trial of an incompetent defendant deprives him of his due process right to a fair trial and requires reversal of his conviction." ( People v. Medina (1990) 51 Cal.3d 870, 881-882, 274 Cal.Rptr. 849, 799 P.2d 1282, citing Drope v.

Missouri (1975) 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 ( Drope ).) " 'Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.' [Citation.] State constitutional authority is to the same effect. [Citation.]" ( People v.

Lightsey (2012) 54 Cal.4th 668, 690-691, 143 Cal.Rptr.3d 589, 279 P.3d 1072 ( Lightsey ).) "The applicable state statutes essentially parallel the state and federal constitutional directives." ( Lightsey , supra , 54 Cal.4th at p. 691, 143 Cal.Rptr.3d 589, 279 P.3d 1072.)

Section 1367, subdivision (a), provides in pertinent part: "A person cannot be tried or adjudged to punishment ... while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this

chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." Penal Code

section 1368 (

section 1368 ) provides in relevant part: "(

a) If, during the pendency of an action and prior to judgment ..., a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel.

At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. [¶] (

b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to [Penal Code] Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing." "[A] trial court is obligated to conduct a full competency hearing if substantial evidence raises a reasonable doubt that a criminal defendant may be incompetent.

This is true even if the evidence creating that doubt is presented by the defense or if the sum of the evidence is in conflict. The failure to conduct a hearing despite the presence of such substantial evidence is reversible error." ( Lightsey , supra , 54 Cal.4th at 691, 143 Cal.Rptr.3d 589, 279 P.3d 1072, citing People v. Welch (1999) 20 Cal.4th 701, 737-738, 85 Cal.Rptr.2d 203, 976 P.2d 754.) The law presumes a person is competent to stand trial. ( Pen.

Code, § 1369, subd. (f).) "When the defendant puts his or her competence to stand trial in issue, the defendant bears the burden of proving by a preponderance of the evidence that he or she lacks competence." ( People v. Mendoza (2016) 62 Cal.4th 856, 871, 198 Cal.Rptr.3d 445, 365 P.3d 297 ; see § 1369, subd. (f) ; Medina v. California (1992) 505 U.S. 437, 446, 112 S.Ct. 2572, 120 L.Ed.2d 353 ( Medina ) [allocation of the burden of proof to a criminal defendant to prove incompetence does not violate procedural due process].) b. Penal Code

section 1367 's requirement of proof of mental disorder or developmental disability Defendant contends that the definition of mental incompetence under

section 1367, subdivision (a), fails to meet the constitutional standard because it requires proof of a mental disorder or developmental disability. She contends that United States Supreme Court decisions, by contrast, have defined competence to stand trial solely in the functional terms of a defendant's ability to understand the nature of the proceedings against her and to assist her attorney in preparing her defense in a rational manner. (See Dusky , supra , 362 U.S. at p. 402, 80 S.Ct. 788 ; Drope , supra , 420 U.S. at p. 171, 95 S.Ct. 896.) She contends that

section 1367 's requirement of proof of a mental disorder or developmental disability unconstitutionally narrows the definition of incompetence, thereby depriving a "subset of defendants"-those who are unable to understand the proceedings and assist counsel in a rational manner but do not "suffer from a recognized mental disorder or developmental disability"-of the right not to be tried while incompetent. In her briefing, defendant did not specify whether her claim relates to the facial validity of

section 1367, subdivision (a), or the statute's validity as applied to the particular circumstances of her case. At oral argument, however, appellate counsel clarified that defendant's challenge is a facial attack. " ' "To support a determination of facial unconstitutionality, ... [challengers] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute." ' " ( Tobe v.

City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) Rather, the "minimum" our cases have accepted is a showing that the statute is invalid "in the generality or great majority of cases." ( San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 673, 117 Cal.Rptr.2d 269, 41 P.3d 87 ; cf. Washington State Grange v.

Washington State Republican Party (2008) 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 [noting that while some justices of the high court have embraced a more demanding standard, all justices "agree that a facial challenge must fail where the statute has a ' "plainly legitimate sweep" ' "].) In this case, defendant has failed to demonstrate that

section 1367, subdivision (a), is facially invalid; indeed, she has failed to identify any case (including her own) in which

section 1367 's mental disorder or developmental disability requirement results in the violation of due process. Contrary to her argument, the due process right not to be tried while incompetent has long been understood in terms of the causal relationship between the defendant's mental condition and his or her trial-related functional abilities.

As the high court explained in Drope , the constitutional right is rooted in the venerable common law rule "that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." ( Drope , supra , 420 U.S. at p. 171, 95 S.Ct. 896.)

Section 1367, like many other similar statutes in other jurisdictions, thus articulates a causal relationship between the existence of a mental disorder and functional impairments. (See, e.g., 18 U.S.C. § 4241(d) [federal statute forbidding trial of a defendant found to be "presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense"].) The statutory language reflects a view that, "[a]s a matter of law and logic," incompetence to stand trial "must arise from a mental disorder or developmental disability that limits his or her ability to understand the nature of the proceedings and to assist counsel." ( Timothy J. v.

Superior Court (2007) 150 Cal.App.4th 847, 860, 58 Cal.Rptr.3d 746.) On this view, "[a] defendant who refuses to work with his lawyer out of spite alone is not incompetent," for example, "even if that defendant has a serious mental disease or defect." ( United States v. Garza (9th Cir. 2014) 751 F.3d 1130, 1136.) The high court's cases cast no doubt on the constitutionality of this approach.

On the contrary, that court has characterized a state statute establishing procedures to determine whether a person " 'as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense' " as facially "adequate to protect a defendant's right not to be tried while legally incompetent." ( Drope , supra , 420 U.S. at p. 173, 95 S.Ct. 896.) And the court has since consistently referred to the incompetence inquiry under Dusky as one that focuses on the defendant's mental condition and capacity. (See, e.g., Godinez v.

Moran (1993) 509 U.S. 389, 401, fn. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 ( Moran ); see also, e.g., Medina , supra , 505 U.S. at p. 450, 112 S.Ct. 2572 [at a competency hearing, "psychiatric evidence is brought to bear on the question of the defendant's mental condition"].) Defendant has offered no sound basis to conclude that this focus is inconsistent with due process. To the extent defendant means instead to argue that the Dusky standard does not require a specific medical diagnosis drawn from the current version of the Diagnostic and Statistical Manual of Mental Disorders, we do not disagree. But neither does

section 1367 impose this sort of requirement. Although this statute requires that the defendant show that, because of a mental disorder or developmental disability, he or she is unable to understand the nature of the proceedings or to rationally assist in his or her own defense, it does not require that the defendant's mental disorder fit neatly within the standard diagnostic taxonomy. We find no inconsistency with Dusky . c. Asserted omission of certain elements from Penal Code

section 1367 's definition of competence to stand trial and CALJIC No. 4.10 Defendant next contends that the definition of competence in

section 1367 and in CALJIC No. 4.10 omit necessary elements from the standard articulated in Dusky , supra , 362 U.S. 402, 80 S.Ct. 788 and thus fails to satisfy due process requirements. Under Dusky , a defendant is competent to stand trial if he or she " 'has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding' " and " 'has a rational as well as factual understanding of the proceedings against him [or her].' " ( Id . at p. 402, 80 S.Ct. 788, italics added.) Defendant argues that

section 1367 and CALJIC No. 4.10 omit the requirements of "a rational as well as factual" understanding of the proceedings and a "present" ability to rationally assist counsel. She contends the jury should be instructed that a defendant's understanding of the proceedings "must be based on reason, as opposed to delusion, fantasy or some other non-reality based perception" and encompass the ability to comprehend facts.

She also contends the instructions should require the jury to determine the defendant has a "present, already-existing ability," as opposed to mere "potential capacity," to rationally assist an attorney in conducting a defense. In response to similar arguments, "[w]e have previously observed that the language of

section 1367, from which CALJIC No. 4.10 is drawn, 'does not match, word for word, that of Dusky . But as the Court of Appeal noted in James H. v. Superior Court (1978) 77 Cal.App.3d 169, 177, 143 Cal.Rptr. 398, "To anyone but a hairsplitting semanticist, the two tests are identical." ' " ( People v. Jablonski (2006) 37 Cal.4th 774, 808, 38 Cal.Rptr.3d 98, 126 P.3d 938.) What we have said before applies equally in this case. The United States Supreme Court has itself articulated the standard for competency in terms similar to those in

section 1367 and CALJIC No. 4.10. ( Moran , supra , 509 U.S. at p. 402, 113 S.Ct. 2680 ["Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel."].) Neither

section 1367 nor the instruction is infirm merely because it fails to focus specifically on the defendant's "rational and factual" understanding of the proceedings, as opposed to focusing on the defendant's understanding of the proceedings more generally; we agree with the Attorney General that "one's ability to grasp the nature of the proceedings necessarily encompasses one's capacity to have a rational and factual understanding of the proceedings." Nor is the statute or instruction flawed because it fails to refer to the defendant's "present" ability to assist counsel.

Both the statute and instruction are already phrased in the present tense, and the statutory scheme makes amply clear that the mental competence inquiry focuses on the defendant's present abilities, as opposed to the possibility that the relevant abilities may be restored in the future. (See Pen. Code, § 1370, subd. (a)(1)(B).) To the extent defendant contends that the point should have been made even clearer to the jury, she made no such argument in the trial court and therefore has forfeited any objection she might have had to the omission of the term "present ability" from CALJIC No. 4.10. (See People v.

Covarrubias (2016) 1 Cal.5th 838, 876-877, 207 Cal.Rptr.3d 228, 378 P.3d 615 ( Covarrubias ).) 2. Exclusion of Psychologist Sherry Skidmore's Rebuttal Testimony Defendant contends that the trial court erroneously excluded rebuttal testimony from defense psychologist Dr. Sherry Skidmore. The testimony was offered to impeach Dr. Rath's testimony concerning his evaluation of defendant's competence to stand trial (see Pen. Code, § 1369, subd. (d) ). Specifically, Dr. Skidmore would have testified that:

(1) Dr. Rath's conclusion that defendant was competent to stand trial was invalid under professional standards because he did not conduct an evaluation for the purpose of determining competence, and

(2) Dr. Rath had a conflict of interest because he was originally referred by the District Attorney to interview defendant on the day of her arrest and before the court appointed him to evaluate defendant's competence. Defendant asserts that the erroneous exclusion of Dr. Skidmore's testimony violated her state and federal constitutional rights to due process, a fair trial, confrontation, compulsory process, and to present evidence in support of her case ( Cal. Const., art. I, §§ 15, 16 ; U.S. Const., 6th & 14th Amends.), and was prejudicial, requiring reversal of the entire judgment. The claim lacks merit. a.

Factual and procedural background Clinical psychologist Craig Rath, Ph.D., testified for the prosecution that he interviewed defendant and administered the MMPI on October 28, 1994, the day of her arrest for the murders. Defendant had waived her Miranda rights and had agreed to speak to a doctor. The purpose of the interview was to evaluate defendant for possible suicide risk and to gather information "for possible later use in court for one side or the other." On March 14, 1995, without objection by the defense, the trial court appointed Dr. Rath to evaluate defendant's competence to stand trial. (See Pen.

Code, §§ 1368, 1369, subd. (a).) Defendant refused to meet with Dr. Rath after his appointment. Based on his October 28, 1994, interview of defendant and the results of the MMPI, Dr. Rath opined defendant was competent to stand trial and did not have "any major mental illness which would preclude her from understanding what's going on or cooperating with her attorney." Dr. Rath also opined defendant's MMPI results showed a classic profile for malingering. On cross-examination, defense counsel attempted to impeach Dr.

Rath by establishing that: (1) his evaluation of defendant on the day of her arrest, October 28, 1994, was not a competency evaluation under

section 1368 because he did not interview her for that purpose; and (2) his agreement to interview defendant for the District Attorney shortly after her arrest created a potential conflict of interest he was required to disclose when the trial court later appointed him to conduct a competency evaluation. Dr. Rath denied there were any ethical problems with the services he rendered.

He also testified that defendant demonstrated no mental illness during the October 28 interview and that her behavior at that time appeared to be "all volitional." He therefore considered her competent to stand trial and did not ask her specific questions about her knowledge and understanding of court proceedings. When counsel attempted to place Dr. Rath's ethics in issue because he relied on information he gathered during the October 28 interview and testing, neither of which were for the purpose of evaluating competency, the expert explained he included the circumstances of his interview in his written report.

Counsel also asked Dr. Rath whether his inability to interview defendant in March and April 1995, after his court appointment, potentially affected the reliability of his opinion that she was competent to stand trial. Dr. Rath testified he would have been able to elaborate more but thought his opinion would remain unchanged. Counsel then asked Dr.

Rath about an ethical standard prohibiting a psychologist from offering evidence about an individual's psychological characteristics when the psychologist has not had "an opportunity to conduct an examination of the individual adequate to the scope of the statements, opinions or conclusions to be issued" and requiring psychologists to make "clear the impact of such limitations on the reliability and validity" of their testimony. Dr.

Rath agreed that no expert should "go beyond the scope of his database" and claimed he satisfied this ethical requirement by "outlining exactly what the database is and whatever limitations there might be." Dr. Rath explained that in his report concerning defendant, he "clearly stated how much [he] had seen her and when [he] had not seen her. ..." Dr. Rath agreed with counsel the American Psychological Association (APA) Guidelines contained in the APA's Ethical Handbook governed his professional conduct.

Counsel asked whether he was obligated to comply with the standard directing that "[f]orensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship." Dr. Rath identified the quoted standard as having been taken from the Division 41 Guidelines for Forensic Psychologists, which he said had been rejected by the APA and the California licensing board as unclear and ambiguous.

He denied that his having interviewed defendant for the District Attorney before his court appointment for the competency evaluation amounted to a conflict of interest. Dr. Rath testified that he had contacted the Board of Medical Quality Assurance Ethics Committee and had been told "there [was] no conflict." Counsel then asked Dr.

Rath whether he had complied with the APA guidelines requiring disclosure to the parties of those factors that "might reasonably affect the decision to contract with the forensic psychologist[ ]," including "prior and current personal or professional activities, obligations, and relationships that might produce a conflict of interest." Dr. Rath repeated that there was no conflict of interest. Counsel asked Dr. Rath whether the APA guidelines required him to obtain consent from defendant or her counsel before conducting his October 28 interview, given that the interview was not court ordered. Dr.

Rath explained that because defendant had no attorney at that time and had waived her Miranda rights, there was no violation of the APA guidelines. On recross-examination, counsel sought to further question Dr. Rath about his ethical obligations, and the prosecutor objected on grounds of scope and relevance.

The trial court sustained the objection, stating, "We have covered this ethics thing completely" and "[w]e are done talking about ethics." Outside the presence of the jury and before the prosecution rested its case, trial counsel sought permission to present testimony by forensic psychologist Sherry Skidmore, Ph.D., to rebut Dr. Rath's testimony concerning a psychologist's ethical obligations. Specifically, Dr. Skidmore would have testified that:

(1) Dr. Rath's competency evaluation was governed by ethical principles that he denied were applicable; (2) "it is unethical and scientifically invalid to reach a conclusion on the question of competency when [Dr. Rath] never actually interviewed [defendant] and performed a specific competency evaluation"; and (3) under professional standards for forensic psychologists, Dr.

Rath had a conflict of interest because he interviewed defendant on October 28 at the request of the District Attorney before he was appointed by the court to evaluate her competency, and was required to "make certain disclosures." Counsel argued Dr. Skidmore's proffered testimony was proper rebuttal because the jury had no evidence other than Dr. Rath's own testimony on which to base its determination whether Dr. Rath acted ethically. The prosecutor objected on the basis the proffered testimony was collateral and excludable under Evidence Code

section 352. The court sustained the objection, agreeing the proffered testimony was collateral and noting, "Dr. Rath is not on trial[,]" and "I allowed [defense counsel] to inquire into the ethical situation as Dr. Rath understood it, and [he] did and now we are done with that." The court permitted counsel to introduce Dr. Skidmore's testimony refuting Dr. Rath's

interpretation of defendant's MMPI test results. In rebuttal, Dr. Skidmore testified she had specialized experience in the areas of professional ethics and on scoring and evaluating MMPI tests. She testified that a psychologist acts below the standard of care by rendering an opinion on competence to stand trial based on an interview conducted for a purpose other than determining competence. When the defense inquired whether a forensic psychologist could reach a valid conclusion if, at the time of the interview, he or she was working "in a dual role," the court sustained the prosecution's objection before Dr.

Skidmore answered. b. Discussion In competency proceedings, each party may offer evidence to rebut evidence offered by the other side. ( Pen. Code, § 1369, subd. (d).) Evidence bearing on the credibility of a witness is generally relevant, and therefore admissible, in such a proceeding. ( Evid. Code, §§ 210, 350.) "As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment." ( People v.

Rodriguez (1999) 20 Cal.4th 1, 9, 82 Cal.Rptr.2d 413, 971 P.2d 618.) The court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (

a) necessitate undue consumption of time or (

b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." ( Evid. Code, § 352.) Such rulings are reviewed for abuse of discretion. ( People v. Minifie (1996) 13 Cal.4th 1055, 1070, 56 Cal.Rptr.2d 133, 920 P.2d 1337 ; see People v. Young (2005) 34 Cal.4th 1149, 1199, 24 Cal.Rptr.3d 112, 105 P.3d 487.) Although the trial court characterized Dr.

Skidmore's proffered testimony as "collateral," the testimony was unquestionably relevant: Because professional psychologists and psychiatrists are permitted to render an opinion on the ultimate issue of the defendant's competence, their adherence to or disregard of professional standards in forming those opinions is relevant to their credibility as experts. The question here is whether the trial court appropriately weighed the probative value of the testimony against the probability that its admission would necessitate undue consumption of time, under Evidence Code

section 352. We ultimately need not answer the question, however, because even if we were to assume for the sake of argument that the trial court abused its discretion in excluding the evidence, any such error was clearly harmless. Dr. Skidmore would have testified that Dr. Rath violated professional ethical standards for a forensic psychologist because his evaluation of defendant's competence to stand trial was based on an interview not designed for the purpose of evaluating competence to stand trial. She also would have testified that Dr.

Rath had a conflict of interest when he was appointed to evaluate defendant's competence because before his appointment it was the prosecution that initially engaged him to interview her. As defendant emphasizes, the trial court's limitation on Dr. Skidmore's testimony had the effect of precluding the jury from hearing from any expert, other than Dr. Rath himself, regarding relevant professional ethical standards for forensic psychologists. Ultimately, however, the circumstances of Dr.

Rath's prearrest examination and its limits on assessing competency were fully litigated, despite the limitation on the defense's rebuttal evidence. In response to defense questioning, Dr. Rath himself agreed that no expert should "go beyond the scope of his data base." As Dr. Rath also noted, his report had explained how much he had seen defendant and his failures to meet with her following his court appointment. Further, the jury heard testimony from Dr.

Skidmore that (1) it is "below the standard of care" for a forensic psychologist to render an opinion about an individual's competence to stand trial when the individual was not interviewed for that purpose, and (2) it is unethical for a psychologist to form an opinion about malingering based on the limited information provided by MMPI results. Despite this evidence, as well as the testimony of two defense experts opining that defendant was incompetent, the jury was unconvinced.

Other evidence, including the writings taken from her cell, tended to show that defendant could communicate coherently and that she understood the nature of the proceedings against her. There is no reasonable probability that the jury would have reached a different conclusion had the defense been permitted to offer further rebuttal evidence to counter Dr. Rath's claim that he accepted his court appointment without breaching any ethical rules or creating a conflict of interest. ( People v.

Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ( Watson ).) Assuming defendant has preserved a claim of federal constitutional error, and the error implicated federal constitutional rights, we conclude the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) 3. Exclusion of Portions of Defense Expert Testimony During the defense case, the trial court excluded Dr. Kania's testimony about defendant's delusions regarding computers and Dr. Mills's testimony about the Caldwell testing service report on the results of the MMPI that Dr.

Rath administered to defendant on the day of her arrest. Defendant offered these portions of the experts' testimony to support their opinions defendant was not competent to stand trial. The court excluded the testimony because the defense did not timely provide discovery of the evidence to the prosecutor. Defendant asserts that the court erroneously applied the criminal discovery statutes ( Pen. Code, § 1054 et seq. ) in excluding the evidence.

She contends that the provisions of the Civil Discovery Act of 1986 (Civil Discovery Act or Act) governed her competency proceeding, and that there was no violation of those provisions. Exclusion of the evidence, she asserts, was prejudicial error and denied her state and federal constitutional rights to due process and a fair competency trial, to present evidence in support of her case, and to contest the prosecution's case. The claim lacks merit. a. Factual and procedural background i. Dr. Kania During cross-examination, the prosecutor questioned Dr. Kania extensively regarding defendant's delusions.

On redirect examination, trial counsel asked Dr. Kania about his discussions with defendant regarding her delusional belief concerning computers. Dr. Kania said defendant had stated that computers were running the world and killing people, and that she did not know whether the people she saw were alive or were computers.

The prosecutor objected to the line of questioning on the ground it was beyond the scope of cross-examination and it was "all new information" that had "never been [included] anywhere in a report or anything." The court permitted trial counsel to reopen his examination on this topic, and the prosecutor again objected he had not been provided discovery. The court asked counsel whether discovery of this particular delusion had been disclosed to the prosecutor. When counsel responded that it did not appear in Dr.

Kania's report, the court sustained the prosecution's objection and struck the portion of the expert's testimony relating to defendant's computer delusions. The court admonished the jury to disregard the testimony. ii. Dr. Mills During direct examination, Dr. Mills opined that defendant was not malingering and suffered from a psychotic disorder hindering her ability to work with an attorney. Trial counsel then asked whether he had reviewed the results of an MMPI administered to defendant by the prosecution's expert, Dr. Rath. Outside the presence of the jury, the prosecutor objected to Dr.

Mills's testimony on the ground he was unaware that Dr. Mills had sent Dr. Rath's raw data to the Caldwell testing service for evaluation; Dr. Mills's report made no mention of this information or an opinion based on the test data. The prosecutor stated he had received no discovery on this particular issue. The court allowed trial counsel to question Dr. Mills outside the jury's presence. Dr. Mills testified both he and Dr. Kania sent Dr. Rath's MMPI results to Caldwell and had each received a report from Caldwell. Dr. Mills explained that, while there were slight differences between the reports he and Dr.

Kania received, "for all practical purposes, they say the same thing." Counsel explained he sought admission of the Caldwell report sent to Dr. Mills because Dr. Mills had relied on the report in reaching his opinion. Counsel also asserted the report sent to Dr. Mills was not "new material" because the prosecutor "had the copy of the report from [Dr.] Kania." Finding that counsel had failed to provide discovery of Dr. Mills's testimony concerning the Caldwell report, the court excluded the testimony. b.

Discussion Defendant contends that the trial court erred in sustaining the prosecutor's objections and in excluding portions of Dr. Kania's and Dr. Mills's testimony as sanctions for discovery violations. Because a competency proceeding under

section 1368 is a special proceeding and not a criminal action ( People v. Hill (1967) 67 Cal.2d 105, 114, fn. 3, 60 Cal.Rptr. 234, 429 P.2d 586 ), she reasons, civil discovery rules apply rather than the criminal discovery statute. (See Code Civ. Proc., former § 2016, subd. (b)(1).) In support, she relies on Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 490-491, 122 Cal.Rptr.2d 673, decided after her competency trial, which held that the Civil Discovery Act applies to competency hearings.

Defendant argues that because the prosecutor did not comply with the civil rules for seeking discovery from her expert witnesses, in that he did not make a demand for the production "of all discoverable reports and writings" made by a designated expert in the course of preparing his or her opinion (Code Civ. Proc., former § 2034, subds. (a)(3), (g) ), there was no basis for an order excluding the evidence for noncompliance with the Act's requirements. Absent a discovery violation under the Act, defendant contends, the court abused its discretion in excluding Dr.

Kania's testimony about her computer-related delusions and Dr. Mills's testimony about the Caldwell report concerning the MMPI test results Dr. Rath obtained. The Attorney General, citing People v. Anderson (2001) 25 Cal.4th 543, 592, footnote 17, 106 Cal.Rptr.2d 575, 22 P.3d 347, and People v. Williams (1997) 16 Cal.4th 153, 250, 66 Cal.Rptr.2d 123, 940 P.2d 710, argues preliminarily that defendant's claim under the Act is forfeited on appeal because she did not rely on the prosecutor's alleged noncompliance with the Act in opposing the objections at trial.

Further, the Attorney General contends the trial court properly relied on the criminal discovery statutes in ruling on the prosecutor's objection because no objection was made concerning their applicability and the state of the law was unsettled. (Cf. In re Scott (2003) 29 Cal.4th 783, 813-814, 129 Cal.Rptr.2d 605, 61 P.3d 402 [although the criminal discovery statute did not apply in a habeas corpus proceeding, the superior court judge logically cited the statute in crafting an order for limited discovery].) The Attorney General argues the court properly excluded the evidence under Penal Code

section 1054.5, subdivision (c), because the defense failed to disclose the "statements of experts made in connection with the case" and the results of the mental examination as required by Penal Code

section 1054.3, subdivision (a)(1), of the criminal discovery provisions. Finally, the Attorney General contends that, even assuming error, defendant suffered no prejudice because the excluded evidence was cumulative. We need not decide whether the Act or the criminal discovery statutes applied to defendant's competency trial. Even assuming the court's ruling excluding portions of Dr. Kania's and Dr. Mills's testimony constituted an abuse of discretion, the error was harmless under the "miscarriage of justice" standard for state law error under Watson , supra, 46 Cal.2d at page 836, 299 P.2d 243.

The court's ruling precluded the jury from considering Dr. Kania's testimony relating to defendant's purported delusional beliefs about computers and Dr. Mills's explanation of his reliance on the Caldwell analysis of Dr. Rath's MMPI test results. Defendant offered the evidence in support of each expert's opinion that defendant was incompetent to stand trial. The evidence was, however, cumulative of other testimony concerning defendant's delusions. Dr. Kania himself testified the primary symptom of defendant's psychotic disorder was her delusions. According to Dr.

Kania, during his interviews with defendant, she expressed delusional beliefs that her sister was speaking a different language and influencing defendant's children in this language, that gas was being pumped into her cell, and that people were trying to physically harm her and kill her with the gas. Dr. Perrotti similarly testified defendant had expressed delusional beliefs that she was being made the subject of a medical experiment, that people wanted to harm her, and that there was gas in her cell.

In addition, Regena Acosta, who befriended defendant in jail, testified that defendant believed staff at the jail cafeteria put "stuff" in her food to make her sick. Defendant's family members also testified about her delusions, including, for example, her belief that her sister Angela Montenegro fed defendant's children poisoned meat and that Montenegro was a witch. Defendant argues, however, that Dr. Perrotti's testimony concerning defendant's delusion about gas being pumped into her cell was not as persuasive as, and "did not compensate" for the exclusion of, Dr. Kania's testimony because Dr.

Perrotti observed the delusion only once. She also asserts that the other evidence concerning her delusions came primarily from family members "whose impartiality the prosecutor called into question" and thus would not have been as persuasive as Dr. Kania's account of her computer delusion. The jury, however, heard ample evidence of defendant's delusional beliefs from a variety of sources. We see no reasonable probability that exclusion of Dr. Kania's testimony about defendant's particular delusional beliefs regarding computers affected the outcome of the proceedings.

Defendant also fails to show that exclusion of the evidence, even if erroneous under state law, rendered her competency proceeding fundamentally unfair or otherwise violated her due process rights. Regarding the exclusion of Dr. Mills's testimony, trial counsel represented that the expert's testimony would be essentially the same as Dr. Kania's on this point because each expert had submitted the results of Dr. Rath's MMPI to Caldwell for evaluation and each had received similar reports from the testing service. During the hearing on the prosecutor's objection, Dr. Mills testified that the reports he and Dr.

Kania received from Caldwell "for all practical purposes, ... say the same thing." At trial, Dr. Kania compared the Caldwell

interpretations of the results of the MMPI tests he and Dr. Rath administered separately to defendant. Under these circumstances, testimony by Dr. Mills similar to Dr. Kania's testimony on the same subject would have added little, if anything, to the weight of the evidence of incompetence. Defendant therefore was not prejudiced by exclusion of Dr. Mills's testimony concerning the Caldwell report ( Watson , supra , 46 Cal.2d at p. 836, 299 P.2d 243 ) and she does not otherwise show that exclusion of the evidence resulted in a fundamentally unfair competency proceeding or violated her right to due process. 4.

Admission of Defendant's Jailhouse Writings Defendant contends that the trial court abused its discretion by admitting certain jailhouse writings in the prosecution's surrebuttal case. The prosecution introduced the writings, which had been seized during a search of defendant's jail cell the previous week, to refute defense investigator Catherine Moreno's rebuttal testimony that defendant could not communicate coherently.

Defendant argues that the writings were improper surrebuttal because: (1) her inability to converse coherently was at issue throughout the defense case-in-chief, meaning the prosecution should have offered the writings during its case-in-chief; and (2) the prosecutor had indicated he would not introduce the writings. Defendant contends that admission of the writings deprived her of her state and federal constitutional rights to due process and a fair competency trial. We reject the argument. a.

Procedural background During defendant's rebuttal, defense paralegal Catherine Moreno testified that she had visited with defendant about 10 times during the previous year in an effort to get her to cooperate with the defense team. Moreno had four or five conversations with defendant about witnesses in her case and found her to be unhelpful, incoherent, and unable to stay on topic. On cross-examination, Moreno testified she had never read any of defendant's writings.

Later the same day, and outside the presence of the jury, the prosecutor informed the court that defendant's jail cell had been searched the previous week and writings had been seized, copies of which had been provided to counsel.

The prosecutor stated: "I have been debating back and forth, and I am still not convinced this second, but I think I would like to introduce the writings that we found in her cell to the jury. [¶] The only hesitancy I have is, the majority of it is in Spanish, and I don't know how the Court would feel about them getting a document that somebody's going to need to interpret." The court responded: "[W]hen ... there is something written in a different language, it's translated, and then the translated version is what is utilized[.]" The court expressed its reluctance "to send a document in Spanish into a jury.

There may be some people who are fluent in Spanish, there may be some partially fluent. You don't want to do that because you don't know what is going to be the result." The prosecutor responded, "All right. That's fine. I will pass." The court said, "All right. Let's bring our jurors in. I propose at this point we will just end for the day and start the arguments on Monday." Trial was adjourned until Monday, November 13, 1995. On that date, the last day of the competency trial, the prosecutor revisited the issue of the writings seized from defendant's jail cell.

He represented that the writings had been translated over the weekend by a certified interpreter, and he offered the translations, copies of which had been provided to counsel, to demonstrate defendant's ability to write and form paragraphs and sentences. The court described one document as "three pages of translation attached to a number of pages that are in Spanish.

The English portion here ... [is] labeled, 'Another 48-Hour Appointment With Death,' and, just perusing this in general, it appears to be a story, and it appears to be a story that closely parallels [defendant's]." The court described the second document as a one-page handwritten document in Spanish, the English translation of which comprised defendant's "thoughts and/or prayers on behalf of the defendant dealing with this case." Trial counsel objected to admission of the writings on the grounds the evidence should have been presented in the prosecution's case-in-chief and because the prosecutor had indicated in the prior proceeding he would not offer the evidence.

The court ruled: "[W]e did not close [as] to evidence. I did indicate we were going to leave it open for a ruling on People's 10 [jail records]. During the trial the seizure of this documentation was brought up. [The prosecutor] mentioned last week it was in Spanish.

I mentioned to him last week, 'How do you intend to introduce it, it is written in some Spanish, we can't have the jurors translate it, we will have to have a translator translate the information.' He did not indicate, necessarily, he intended to introduce it, it was considered, it was considered for purposes of introduction as evidence. [¶] I clearly remember that because I remember [thinking], 'Isn't that interesting, how are we going to go ahead with documents in Spanish when, obviously, they haven't been translated?' So, you are not going to be successful with an objection on those bases." When the court asked trial counsel whether he had any objection to the contents of the writings, counsel repeated that at the previous proceeding, the prosecutor had indicated he would not offer the writings.

The court stated: "I agree with you, the last thing we had was [People's Exhibit] 10; however, we did not close [as] to evidence. It is not a surprise, we did discuss the information. I indicated I am not going to keep it out on that basis." The court granted trial counsel 15 minutes to review the pages and object to their content. Trial counsel stated he wanted to consult with his experts "to see what, if any, change this would make in their diagnosis [sic ]." The following colloquy then occurred: "THE COURT: Wait a minute. [¶] The way the trial proceeds, you go first, he goes next, you rebut, he rebuts.

We are at his rebuttal. Do you have some authority that says you get a second rebuttal? "[TRIAL COUNSEL]: Well, I think in this instance, yes; not case authority, but this goes well beyond simply being rebuttal, this is much more in the nature of a case in chief. It isn't something that occurred over the weekend. "THE COURT: You offered the testimony of Ms. Moreno from your office, who testified on rebuttal that your client could not form paragraphs, that she couldn't put thoughts together and hold them together.

Just perusing this, it clearly seems to rebut that presentation by you. [¶] Now, if you don't have any authority for a second rebuttal, that ends the issue here on that basis." When trial counsel did not provide additional authorities, the court indicated that it would recess to give counsel an opportunity to read the translated writings and make any further objections. After the recess, the court confirmed counsel had read the writings and asked if he had anything further.

Counsel responded, "I have nothing additional." The parties stipulated that the writings were confiscated during a search of defendant's jail cell, and the court admitted the writings and translations. b. Discussion Penal Code

section 1369 specifies the order of proof in a competency trial. First, defense counsel offers evidence in support of the allegation of mental incompetence (id ., subd. (b)(1) ); next, the prosecution presents its evidence on the issue of the defendant's present mental competence (id ., subd. (c) ); finally, "[e]ach party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention" (id ., subd. (d) ). Beyond these specifications, the order of proof is generally within the court's discretion. ( Evid.

Code, § 320.) We review a trial court's ruling as to the order of proof for abuse of discretion. (See People v. Tafoya (2007) 42 Cal.4th 147, 175, 64 Cal.Rptr.3d 163, 164 P.3d 590.) Defendant argues that evidence of her writings was not admissible as surrebuttal evidence because it should have been introduced during the prosecution's case-in-chief, given that it was relevant to the prosecution's case and already in its possession. We disagree. During the defense case-in-chief, several witnesses, including Dr. Perrotti, jail nurse Terrill, and Dr.

Mills testified that at times defendant did not express herself coherently. During its case-in-chief, the prosecution had introduced evidence to the opposite effect, including, for example, Dr. Moral's testimony that defendant could effectively communicate about her family, medical, and mental health history and "keep in touch with [him] verbally, talking back and forth, without difficulty." In rebuttal, to counter the prosecution's evidence that defendant could communicate effectively and without difficulty, defense paralegal Moreno testified that defendant could not converse or structure paragraphs coherently.

The prosecutor offered defendant's writings in surrebuttal to refute Moreno's rebuttal testimony. This was not improper. ( Pen. Code, § 1369, subd. (d).) Defendant argues that the prosecution should have offered the writings in its case-in-chief because this issue was material to its case and already in its possession.

But the same is true of defense witness Moreno's rebuttal testimony that defendant could not communicate coherently; that testimony was likewise material to defendant's case-in-chief and already in her possession, but not offered until after the defense and prosecution had each presented its case-in-chief. Under the circumstances, the trial court did not abuse its discretion in permitting the prosecution to rebut Moreno's testimony with defendant's writings.

Further, the record does not support defendant's contention that admission of the writings at the end of trial improperly allowed the prosecution to place undue emphasis on them. The writings were addressed only briefly during the parties' closing arguments.

The prosecutor asked jurors to consider all the evidence in deciding whether defendant was competent, telling them, among other things: "[t]here is some evidence you have not seen ... the notes we had translated from her jail cell, took [sic ] about two weeks ago," which they should "[r]ead ... [and] make [your] own decisions as to how well she can think or not think, the cleverness, the detail, the subtleties." The prosecutor also argued that the writings demonstrated defendant understood the nature of the legal proceedings against her.

Defense counsel countered that jurors should accord the writings little weight because they were not introduced earlier or given to the doctors who interviewed defendant. Nothing in the record suggests that the prosecution placed undue emphasis on the late-introduce

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