Filed 8/15/22 P. v. Cruz CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a Judgment of the Superior Court of California. Lauren Weis-Birnstein, Judge. Affirmed.

Lenore de Vita, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Brian Cruz appeals his convictions for carjacking, burglary, false imprisonment, assault, reckless driving, and hit-and-run driving. At trial, Cruz repeatedly asserted he was incompetent to stand trial under Penal Code section 1368.[1] Cruz pled not guilty by reason of insanity (NGI) and waived jury trial. After a two-phase bench trial (guilt and sanity), the court found Cruz did not meet his burden of establishing he was NGI, and found him guilty of all but two of the charged offenses.

On appeal, Cruz contends the trial court erred by failing to find him incompetent to stand trial and by denying his motions for mistrial based upon his asserted lack of competency. He also contends he received ineffective assistance of counsel. Moreover, Cruz contends the trial judge became embroiled in Cruz’s competency status and exhibited judicial bias. Finally, Cruz contends insufficient evidence supports his burglary convictions. We reject these contentions and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cruz was charged with numerous offenses arising out of a one-hour crime spree in Pacific Palisades during which he invaded the homes of two women, kidnapped one of the women, and took money and possessions. He also carjacked three vehicles, causing the kidnapped owner of one to crash in order to escape and crashing the other two himself. The last crash caused serious injuries to the occupants of another vehicle.

After proceedings commencing in 2014 to determine his competency to stand trial, in November 2016, Cruz entered a NGI plea and waived jury trial. The trial court announced it would try the case in two phases. Phase I—the guilt phase—addressed whether Cruz committed the charged crimes. Phase II— the sanity phase—addressed whether Cruz was NGI.

Cruz’s two-phase bench trial commenced March 1, 2017, with evidence in the guilt phase concluding March 13, 2017. After a 2018 competency hearing and several mistrial motions, the trial court found Cruz competent. Sanity phase testimony commenced in January 2019. The court rendered its decision in the guilt phase over several hearings held during July and September 2019, and in November 2019 found Cruz failed to establish he was NGI. The court sentenced Cruz on July 6, 2020.

I. INFORMATION.

An amended information, filed July 6, 2020, alleged as follows:

The amended information further alleged that, as to Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 16, and 17, Cruz had suffered six prior felony convictions pursuant to section 667.5, subdivision (c). As to Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 16, and 17, the amended information contained allegations under sections 667, subdivisions (b) through (j) and 1170.12; section 1203, subdivision (e)(4); and section 667.5, subdivision (b). As to these counts, the information alleged Cruz had suffered a “super strike,” a disqualifying factor making him ineligible as a second strike offender pursuant to section 1170.12, subdivision (c).

As to Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, and 12, the amended information further alleged a prior serious felony within the meaning of section 667, subdivision (a)(1) and section 667.5, subdivision (a); Cruz had suffered five prior felony convictions within the meaning of section 667, subdivision (a)(1); and Cruz had served five prison terms within the meaning of section 667.5, subdivision (a).

II. GUILT PHASE EVIDENCE.

Cruz testified with the understanding that his testimony would be used in both the guilt and sanity phases of the trial. Cruz had a history of mental illness and had received anti-psychotic medication in prison. After his release from prison in January 2014, Cruz ran out of his medication, was unable to maintain stable housing, and became transient.

Cruz testified that before his August 11, 2014 crime spree, he removed his parole tracking device (an ankle bracelet) and went to Santa Monica with the intention of killing himself in the ocean. He further testified that while in Santa Monica, he believed Department of Homeland Security (DHS) agents and others acting in concert with them were following him and wanted to hurt him.

Cruz testified that early in the morning of August 11, 2014, he left Santa Monica to escape those he believed were following him. At 7:00 a.m., after making his way to Pacific Palisades, he entered the apartment of Joan Forde through an open door, demanded and received money from her, cut his hair (to disguise himself from those following him), took clothing from her (again to disguise himself), and forced her to drive him in her car. Forde testified Cruz held a box cutter to her side while she drove. To save herself, Forde deliberately crashed her car by driving into a construction site.

Cruz got out and ran toward Palisades High School, accosting Dominique Vincent in the parking lot and taking Vincent’s SUV. On the way out of the parking lot, Cruz crashed the car. Fifty minutes later, Julie Schy went upstairs and saw Cruz standing in front of her open bedroom balcony doors. Cruz motioned with his hand, leading Schy to believe he had a gun in his pocket. Cruz told Schy, “give me your car or I’m going to kill you.” Schy handed over her car keys and, after Cruz requested clothing, she provided a large grey hoodie. Cruz got into Schy’s white Lexus SUV, and drove away.

At approximately 8:00 a.m., Cruz was driving north on Pacific Coast Highway near Malibu Canyon Road at 70 miles per hour. Deborah Prado and her son were driving southbound on PCH, making a left turn onto Malibu Canyon Road. Cruz broadsided them, causing significant injuries and totaling Schy’s Lexus. Sheriff’s deputies arrived on the scene. Cruz and the accident victims were transported to the hospital. Cruz stated he was under the influence of bath salts.

Cruz claimed he broke into the homes to get away from the people he believed were following him and he intended to call his parole officer to come pick him up. He testified he did not realize anyone was at home when he broke into Forde and Schy’s homes. Cruz admitted he knew what he was doing was wrong, but felt it was essential to his survival.

III. PROCEDURAL HISTORY REGARDING CRUZ’S COMPETENCY TO STAND TRIAL.

Section 1367 specifies that a defendant is incompetent to stand trial “if, as a result of 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).)

Procedurally, the burden is on the defendant to establish incompetence by a preponderance of the evidence. Section 1368 requires that the trial court suspend criminal proceedings and commence competency proceedings if “a doubt arises in the mind of the judge” regarding the defendant’s competence and defense counsel concurs. (§ 1368, subds. (a) – (c).)

A. Pre-Trial Proceedings (2014-2017)

1. First Section 1368 Declaration; Preliminary Hearing.

On September 23, 2014, before Cruz’s preliminary hearing, his counsel declared a doubt as to his competence pursuant to section 1368. After Cruz was sent to the mental health court for a competency evaluation, Drs. Ochoa and Kim examined Cruz and found him competent to stand trial, including that he was able to assist his counsel in a rational manner. Specifically, Dr. Ochoa noted Cruz had a substance-related disorder but did not have a genuine psychotic disorder. On the contrary, Cruz was malingering or fabricating psychotic symptoms. On December 31, 2014, the mental health court found Cruz competent to stand trial.

The preliminary hearing was held before Judge Deborah Brazil on April 16 and 17, 2015. Arraignment was May 1, 2015, after which an information was filed and Cruz pled not guilty.

2. Second Section 1368 Declaration; Evaluation at Patton State Hospital[2] Labels Cruz a “Malingerer.”

In October 2015, new appointed defense counsel, Bart Seemen, substituted in. Cruz complained because the substitution seemed like a “setup” and he could not trust Seemen. In March 2016, Cruz told the court he believed his mail was being tampered with. He claimed DHS had been chasing him since his release from prison.

In May 2016, at a pretrial conference before Judge Elden Fox, Cruz requested a Marsden[3] hearing because he believed his counsel was working for the DHS.

The matter was transferred to Judge Mark Windham for the Marsden hearing. On May 18, 2016, the trial court declared a doubt pursuant to section 1368 regarding Cruz’s mental competence due to Cruz’s behavior.

Dr. Ronald Markman conducted an in-person interview with Cruz at Twin Towers Jail in May 2016. Dr. Markman diagnosed Cruz with paranoid psychotic disorder. In Dr. Markman’s opinion, Cruz was not competent as a result of this disorder. However, Dr. Markman believed Cruz could have been malingering. Dr. Lydia Bangston also evaluated Cruz and found Cruz suffered from delusional disorder, paranoid type.

Judge Fox reviewed Dr. Markman’s report on June 22, 2016. Dr. Markman noted “[t]here were clinical signs that were suggestive of malingering, an attempt to feign a mental disorder. [Without] at least two more contacts, cannot fully rule out that option. If [he is] sent to Patton and seen 24/7, the issue of malingering could be assessed in [a] short time.”

[i]3. Reinstatement of Criminal Proceedings; Waiver of Jury Trial and Entry of NGI Plea.

The criminal proceedings were reinstated against Cruz on September 15, 2016. On September 20, 2016, in proceedings before Judge Weis-Birnstein, (the trial judge), Seemen requested reappointment of Dr. Bangston to determine if there were grounds to challenge the findings of competency in the Patton report. During these proceedings, Cruz was disorderly and labeled Seeman an “imposter” and stated Seeman was not his attorney. Seeman stated that against his advice, Cruz wanted to enter a plea of NGI. The trial court reappointed Dr. Bangston.

On October 18, 2016, Seeman advised the court that after consultation with Dr. Bangston, he had no objection to the restoration of the competency. Dr. Bangston had found Cruz understood the proceedings and chose not to assist in his defense. The trial court concluded Cruz made a conscious choice not to cooperate with counsel.

At proceedings held October 31, 2016, Cruz informed the court that he was “willing to gamble that on the fact that maybe [he was] not incompetent.” He stated: “I’m actually very intelligent. It doesn’t mean that I’m—I’m manipulating to save my life, . . . . I can say straight up, I’m not incompetent. I know who you are, and I know who [Seemen] is. But I do know for a fact that I believe what I said about [Seemen] not being my true attorney.”

On November 1, 2016, Cruz waived jury trial for both phases of the trial. On November 16, 2016, he pled NGI.

4. Related Proceeding, Case No. 854.

Cruz was charged on November 17, 2016, in case number BA451854 (No. 854) with a violation of section 4573.8, unauthorized possession of alcohol in jail. On January 27, 2017, the public defender assigned to the case declared a doubt about Cruz’s competency and the matter was sent to the mental health court.

On February 1, 2017, although Cruz had been sent to the mental health court in No. 854, after discussion, the parties agreed to move forward with trial in this case because Cruz had already been found competent in this case (and labeled a malingerer).

After Cruz failed to appear on February 2, 2017, defense counsel advised the court Cruz was being evaluated for competency but counsel was not declaring doubt in the current case. Counsel believed that Cruz would be restored to competency in No. 854.

B. Trial: Guilt Phase Proceedings (March 2017).

1. Guilt Phase Proceedings.

On February 23, 2017 the trial court declared that trial would be in two phases, with the guilt phase first. If the court found Cruz guilty, the sanity phase would follow. On March 1, 2017, the first day of trial, the court granted the defense request to have Cruz testify once for both the guilt and sanity phases.

Although Cruz stated he had problems working with his attorney, the trial court found Cruz competent to proceed.

After the prosecution witnesses testified, the trial court explained to Cruz his right to remain silent and inquired whether he had discussed this with his attorney. Cruz responded, “the fact that I was, at some point, unwilling to work with [Seemen] at all has led us to a situation where now I’m going to get on the stand, and I have no idea what he’s going to ask me.”

Seemen advised the trial court Cruz had made the NGI plea against his advice. He stated he would rely solely on Cruz’s testimony to argue a lack of specific intent as well as for the NGI defense because the appointed expert on the issue of NGI, Dr. Booker, was detrimental to Cruz’s defense. The court advised Cruz that his own testimony would be the only evidence the defense would present in the sanity phase.

On March 10, 2017, Cruz moved to represent himself in the sanity portion of the trial. Cruz wanted to call two witnesses, but defense counsel had not subpoenaed either witness, nor had counsel permitted Cruz to review his own medical records.

The trial court denied the request because Cruz was unable to comport himself in court. After Cruz responded he would be walking out, the trial court had him removed. The bailiff reported that outside the courtroom, Cruz was yelling and kicking at the door and demanding to get back on the jail bus.

On March 13, 2017, the defense rested. After the trial court told Cruz the denial of his self-representation motion was based on his own behavior, Cruz blamed his bad behavior on his counsel and counsel’s failure to call the two witnesses for the sanity phase.

On March 23, 2017, at a calendaring hearing, the trial court noted that after any additional witnesses were called, it would decide the guilt phase. The trial court appointed Dr. Jack Rothberg to evaluate Cruz for the sanity phase.

2. April 2017, Cruz Found Incompetent in No. 854 based on Dr. Najera’s and Dr. Tumu’s Reports in No. 854.

Dr. Rebecca Najera’s April 2, 2017 report, filed in connection with No. 854, diagnosed Cruz with bipolar disorder with psychotic features and found him incompetent. She saw Cruz again in early May 2017 and found him to be paranoid. However, she thought it was a red flag regarding his competence that he was housed in men’s central jail because mentally ill persons are usually housed at Twin Towers. During both interviews, she said, Cruz understood the nature of the proceedings.

On April 6, 2017, the prosecution’s expert Dr. Phani M. Tumu also evaluated Cruz. In Dr. Tumu’s May 5, 2017 report, he found Cruz incompetent to stand trial, and diagnosed him with schizophrenia.

On May 15, 2017, in an uncontested proceeding, Cruz was found incompetent in No. 854.

3. First Mistrial Motion, May 19, 2017.

On May 19, 2017, based on Dr. Najera’s April 2017 findings and Dr. Tumu’s report, Seemen declared a doubt and made an oral motion for mistrial and requested the court to suspend proceedings.

The court stated it noticed a change in Cruz’s demeanor, finding him “bent over, looking down, without eye contract.” The court pointed out that it had been observing Cruz the entire proceeding, but that “[t]here is absolutely nothing that would lead me to believe that he was not competent during the entire course of this trial. His testimony was very descriptive, in great detail, with great recollection. It made sense. It was responsive to all of the questions. . . . He has had great eye contact with everyone, except for today, when he has come in, and I notice a change in him. I don’t know if that is real or feigned.”

Counsel stated that at the start of trial, he believed Cruz would be found competent in No. 854 and hence moved froward with trial. However, based on these two recent reports of Drs. Najera and Tumu finding Cruz incompetent, counsel was now declaring a doubt.

The court made a specific finding that it found Cruz competent, observing that Cruz was “totally competent, lucid, understanding the questions, working very well with counsel. There were some times where [Cruz and counsel] butted heads, but ultimately, [Cruz] was working . . . very well with counsel. [They] were conferring. He was writing notes to counsel.”

However, based upon counsel’s declaration of doubt, the court agreed to set a section 1368 hearing, adjourned proceedings, and appointed Drs. Bangston and Markman to evaluate Cruz.

In late May and early June 2017, Dr. Markman again evaluated Cruz. Dr. Markman found Cruz demonstrated impaired intellectual function and fundamental skills, and his June 27, 2017 report stated, “[t]hough there may be a malingering factor in his clinical presentation, on balance [Cruz] is presently incompetent.” Dr. Markman concluded Cruz was incompetent to stand trial based upon his inability to cooperate with counsel in a rational manner and his inability to grasp and understand the legal proceedings.

On June 29, 2017, the court reviewed Dr. Markman’s report. The court observed that Dr. Markman did not have the benefit of the Patton reports. The court ordered the prosecution to provide the records to Dr. Markman.

Because Dr. Bangston had not yet evaluated Cruz, the court scheduled a July 6, 2017 hearing at which time Dr. Bangston would examine Cruz. On July 6, 2017, Dr. Bangston and Cruz were present for an examination, but it did not proceed. Dr. Bangston had not received the necessary records and her report was not ready until October 2017.

4. Cruz Found Incompetent in Case No. 729.

On August 3, 2017, the trial court was advised that a new case, No. BA 458729 (No. 729), had been filed against Cruz on June 30, 2017, alleging a violation of section 4502, subdivision (d) (possession or manufacture of weapon while in jail). A doubt was declared on July 25, 2017, and Cruz was referred to the mental health court. On August 8, 2017, Cruz was found incompetent in No. 729.

5. Seemen Leaves for Private Practice, September 2017.

On September 7, 2017, after Seeman left the public defender’s office for private practice, deputy public defender Humberto Benitez substituted in as Cruz’s counsel.

After several missed appearances, on March 23, 2018, the court set the competence hearing. In April 2018, however, counsel requested a continuance and Judge Weis-Birnstein recused herself from the competency proceedings.

6. May 21, 2018, Competency Trial Commences; Cruz Found Competent in this Case and in Related Proceedings.

After several continuances due to Cruz’s failure to appear, on May 21, 2018, the competency trial began before Judge H. Jay Ford III. In late April 2018, Dr. Markman interviewed Cruz. Dr. Markman found a reduction in Cruz’s paranoia and found him competent to stand trial. However, Dr. Markman pointed out that competency is fluid.

Before conducting an additional interview with Cruz on May 11, 2018, Dr. Najera reviewed Dr. Bangston’s report. Dr. Najera changed her opinion and concluded Cruz was competent based on Dr. Bangston’s reports and a tip from a deputy at the jail that Cruz was putting on an act.

Dr. Lindsey testified she observed Cruz during his stay at Patton in 2016. She believed he was malingering in order to get a diagnosis and to obtain addictive substances. Dr. Lindsey disagreed with Dr. Markman’s analysis, and rejected findings that Cruz was paranoid schizophrenic. Instead, Dr. Lindsey found Cruz chose not to cooperate with his attorney.

Dr. Markman testified on May 23, 2018 that his prior reports found Cruz displayed signs of a mental disorder and was incompetent to stand trial. However, Dr. Markman found Patton was best equipped to evaluate Cruz’s competency. As a result, Dr. Markman found Cruz competent to stand trial.

Dr. Najera testified that when she evaluated Cruz in 2017, she found him incompetent, but at the time of that evaluation, she had not seen any of his medical records. After reviewing Dr. Bangston’s report, Dr. Najera now believed Cruz was “embellishing,” stated her bipolar diagnosis was no longer valid, and said she believed Cruz suffered from a personality disorder. Nonetheless, she found Cruz competent to stand trial, and any refusal to assist his counsel was Cruz’s choice.

At this point in the hearing, Cruz began yelling and calling the prosecutor names. He was removed from the courtroom.

On May 24, 2018, Judge Ford found Cruz competent to stand trial. The court observed that Cruz’s behavior was likely driven by a desire to avoid prison.

On July 28, 2018, at a hearing where the court sought to set a date for completion of the guilt phase, defense counsel informed the court that a doubt had been declared in a new case, and the matter had been referred to the mental health court.[4]

On September 18, 2018, Cruz was found competent in both Case Nos. 729 and 854.

7. Second Mistrial Motion, October 18, 2018

Benitez filed a mistrial motion, arguing that, based upon the various reports finding Cruz incompetent, Cruz was not competent at the time he waived his jury trial and at the time trial commenced. Further, Cruz received ineffective assistance of counsel because Seeman’s departure in the middle of the case resulted in a prejudicial lack of continuity.

On November 26, 2018, the Supreme Court issued its decision in People v. Rodas (2018) 6 Cal.5th 219 (Rodas), holding that a trial court must investigate, before trial may proceed, when a defendant who has been restored to competence with medication stops taking such medication. (Id. at pp. 237-242.)

Therefore, on November 28, 2018, the trial court asked the parties for the reports of Drs. Ochoa and Kim from 2014. At that time, the trial court sought information from the Sheriff’s Department regarding Cruz’s disciplinary violations while in jail regarding a medicine violation dating from May 9, 2018. The violation indicated Cruz had been taken off medication because of some bad conduct, and the trial court speculated Cruz had been selling his medication. The trial court also sought Cruz’s medical records.

8. Third Mistrial Motion, December 19, 2018

Cruz filed a third mistrial motion on December 19, 2018, asserting the trial court had wrongfully obtained his records in violation of HIPAA, his right to privacy, and attorney-client privilege. Cruz argued the records amounted to improper character evidence, and that the trial judge had become embroiled in the proceedings. The trial court contacted defense counsel via his personal cell phone on November 30, 2018 to discuss the records. The transcript of the conference was sealed.[5]

9. Trial Court Issues Statement of Decision on Second and Third Mistrial Motions; Ruling Tabled.

On January 2, 2019, the trial court issued its statement of decision on Cruz’s mistrial motions. On the second motion, the trial court held Cruz was competent to waive a jury trial and enter his plea, and that he was not denied due process when the trial began during a period when a doubt had been declared in another case. The court denied the third motion, concluding it was not embroiled because the medical and other records were sought solely for the purpose of complying with Rodas and would not be considered by the court for any other purpose. However, the trial court tabled decision on the motions to permit Dr. Booker to commence his testimony in the sanity phase.

10. Related Proceeding, Case No. 411.

On January 25, 2019, defense counsel filed a motion to continue based upon a doubt being declared in a new case against Cruz, No. B468411 (No. 411). Defense counsel argued that because expert testimony had demonstrated competency can be fluid, this case should be continued until Cruz’s competency in the other case was resolved. The prosecution opposed, based upon Cruz’s success at feigning mental illness that had caused innumerable delays in the case. At the hearing held January 31, 2019, the trial court stated its tentative would be to deny the motion to continue because every time Cruz was declared incompetent, he was restored to competency.

C. Sanity Phase.

1. Sanity Phase Testimony, January-April 2019.

(a). Dr. Booker.

On January 3, 2019,[6] Dr. Kevin Booker, a forensic clinical psychologist, commenced testifying in the sanity phase of the proceedings. Because Dr. Booker had not at first reviewed the reports of the other doctors who had evaluated Cruz, his opinion changed over the course of his testimony.

Dr. Booker testified he evaluates competency by assessing an individual’s orientation, and his or her appreciation of the charges and the respective roles of the prosecutor, defense counsel, and the judge. For NGI, Dr. Booker evaluates objectively established psychiatric criteria to determine whether the mental disorder prevents the defendant from appreciating the wrongfulness of his or her actions.

Previously, in December 2016, pursuant to court appointment, Dr. Booker evaluated Cruz at Twin Towers. Dr. Booker conducted a face-to-face interview and reviewed police reports, psychiatric records, and the preliminary hearing transcript. At that time, Dr. Booker did not believe Cruz was malingering. Rather, Cruz’s conduct was consistent with bipolar disorder.

At trial, Dr. Booker reported Cruz had bipolar disorder with polysubstance dependence. Mood disorders typically have onset in the late teens and early 20s. Cruz’s behavior since his late teens was consistent with chronic bipolar mood disorder.

Dr. Booker opined that during the crime spree, Cruz had not been taking his medication. Cruz could have been in the middle of a manic episode in conjunction with using bath salts, which may have affected his judgment and decision-making ability. As result, Cruz would have been unstable, impulsive and erratic. Cruz did not, in Dr. Booker’s opinion, meet the criteria for NGI.

In forming this opinion, Dr. Booker did not have access to Cruz’s Patton State Hospital records. After reviewing those records and the examinations of Drs. Ochoa and Kim wherein they concluded Cruz was malingering, Dr. Booker opined Cruz may have suffered from a mental disease, defect, or disorder that might have affected his intent to commit the offenses that he was charged with.

A review of Cruz’s medical and psychiatric reports from county jail showed Cruz was non-compliant with medical care, verbally abusive to medical personnel, irritable when not on lithium, and generally had a low frustration tolerance.

Dr. Booker explained that if an examining physician believes a patient is malingering, it becomes difficult to trust the patient. Practitioners are trained to invalidate information received from such a patient, and this makes it impossible to make a diagnosis. As a result of this, Dr. Booker now believed Cruz was a malingerer.

Dr. Booker’s opinion that Cruz had no active psychotic disorder at the time of the offenses sufficient to constitute a mental disorder such that he was NGI, however, had not changed. Persons with a mood disorder do not engage in deliberate thought, premeditation or calculation. Rather, they are driven by their mood disorder. Dr. Booker opined that Cruz’s behavior at the time of the offenses was inconsistent with mania because his behavior was systematic, organized, sophisticated, and goal directed. People in a state of severe mania are not capable of such organized thinking.

During Dr. Booker’s testimony, Cruz demanded to leave, threatened to cause a scene, and yelled. He was ultimately escorted out of the courtroom.

(b) Cruz.

Cruz testified on his own behalf in the sanity phase, as follows. As a child, from approximately age 11 to 21, Cruz was a victim of human trafficking. Cruz ran away to Florida and was recruited by an older man, who dressed Cruz and taught him how to speak well and order in a fine restaurant.

In prison, Cruz was diagnosed with PTSD and bipolar disease. He was prescribed medication, but when he did not take his medication, he would suffer flashbacks or behave impulsively.

After his release from prison in January 2014, he was assigned a parole officer. A psychiatrist prescribed a 30-day course of lithium. When he ran out of the lithium, Cruz took his other pain medication. He stayed at an armory in the San Fernando Valley, but left because there were too many people.

He worked as a manager at a sober living facility on Figueroa Street. He claimed he was fine until July 4, 2014, when his parole officer told him he had to quit because he was being paid under the table.

Cruz cut off his parole tracking device so he could hide from the people following him. He did not take any bath salts or narcotics on August 11, 2014, the date of the offenses.

Cruz believed he needed to get out of sight to elude the people who were following him. At the time, he had to find a place to hide. After he took Schy’s car, he had no place to go other than to get away. He was speeding because he believed he was being followed.

On the day of the offenses, he did not consider whether his acts were right or wrong. Instead, he was only trying to survive.

2. Cruz Found Incompetent in Case No. 411.

On February 1, 2019, the court continued the defense’s motion to continue trial, which had been made based on pending Case No. 411. Dr. Rothberg evaluated Cruz in No. 411 and on February 11, 2019, found him incompetent to stand trial. Dr. Rothberg noted there “may be some malingering or exaggeration going on, since [Cruz] settled down substantially once he got away from the court proceedings.”

On February 13, 2019, the trial court in this case learned the proceedings had been reinstated in No. 411 after a prosecution motion to vacate the section 1368 finding based upon Dr. Lindsay’s report. In spite of this, at the hearing in this case, defense counsel argued that based upon Dr. Rothberg’s report, he would nonetheless declare a doubt.

The trial court denied the motion to continue and found Cruz competent based on the two-part test, assessing whether Cruz was (1) unable to understand the nature of the criminal proceedings or (2) unable to assist counsel in the conduct of a defense in a rational manner. The court told Cruz’s counsel, “I believe your client is a fox. He is a con man. . . . [¶] . . . .Yes, competency is a fluid thing. I have seen nothing to make me believe that the second prong of [in]competency has been met . . . .”

On June 28 and July 12, 2019, the court formally denied the motions for mistrial.

3. Proceeding in Department 117

The court scheduled May 31, 2019 for closing arguments on the guilt phase, to be followed by its ruling. However, the trial court discovered that in yet another related proceeding, Judge Eleanor Hunter had found Cruz incompetent on March 21, 2019, based on Dr. Rothberg’s report.[7]

The court refused to find Cruz incompetent based on this latest action. Defense counsel attempted to make a record regarding Cruz’s courtroom conduct, stating that Cruz was “borderline incompetent” and counsel could not control him.

The court observed, “When [Cruz] wants to do something, he is a gentleman and he does it and he’s quiet when it is beneficial, when he knows it’s beneficial for his purposes. [¶] When he doesn’t like a ruling or something that the prosecutor is putting on or arguing, he becomes belligerent and angry. That is not a defendant who is incompetent. He has been working just fine with you, Mr. Benitez, until he gets to that point where he doesn’t like something or he doesn’t like the way you’re handling the case.” The trial court concluded, “I truly believe that he is very smart and that he is manipulating the system. He’s manipulating the system by committing crimes in the jail so then he can get new court cases filed so then he can have judges declare a doubt . . . .”

On June 28, 2019, defense counsel declared a doubt as to Cruz’s competency in this case and requested the trial court to suspend proceedings. The trial court disagreed with the finding in Dr. Rothberg’s February 11, 2019 report.

The trial court stated it had always found the competency question with Cruz focused on the second prong, namely, his ability to assist counsel. The court stated: “I have known [Cruz] for almost three years, since 2016. I have observed him on multiple occasions. I have seen his behavior that he can cooperate when he chooses to cooperate. . . . . [¶] And I’ve also seen that multiple [doctors] in this case, when they are not presented with the whole of it and they are looking at a snapshot in time, without the benefit of all of this that I have seen for three years—looking at multiple reports, listening to the testimony of Dr. Booker—and [Dr. Booker’s] testimony went 180 degrees.” The trial court denied Cruz’s motion to suspend proceedings.

4. Closing Arguments in Guilt Phase, Conclusion of Sanity Phase.

Closing arguments in the guilt phase commenced July 12, 2019. On July 29, 2019, the trial court began rendering its ruling on the guilt phase. During the hearing, Cruz interrupted the trial court each time he disagreed with the court’s findings.

On September 20, 2019, the trial court continued with the guilt phase ruling. The trial court found Cruz guilty on counts 1 through 4, 6 through 12, 16 and 17, and not guilty on counts 19 through 21.

On November 1, 2019, Cruz testified in the sanity phase and the defense made its closing argument. The trial court found Cruz had not met his burden of establishing he was not guilty by reason of insanity.

In November 2019, in a new case against Cruz, a doubt was declared and he was referred to Patton. After a conflict arose with defense counsel, an alternate public defender was appointed. The trial court in this case appointed Dr. Bangston to reevaluate Cruz for competency before the sentencing hearing.

On February 7, 2020, the court read Dr. Bangston’s report. Dr. Bangston’s report showed Cruz was competent, with no signs of psychosis. Cruz had anti-social personality disorder and refused to work with his attorney.

5. Sentencing.

On July 6, 2020, the trial court sentenced Cruz to a total of 123 years and six months in state prison.

DISCUSSION

I. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S REPEATED CONCLUSIONS THAT CRUZ WAS COMPETENT TO STAND TRIAL. THE COURT DID NOT ABUSE ITS DISCRETION.

Cruz argues his lack of competency during trial violated his due process rights. First, he argues the record demonstrates his competence never reached the “necessary level of stability” throughout the trial, as demonstrated by his outbursts during trial, which caused him often to be removed from the courtroom, and his inability to cooperate with his counsel. Second, he argues the trial court erred in denying his first motion for mistrial, made in May 2017, based upon the pending case where a doubt had been declared on the eve of trial. We conclude there is substantial evidence Cruz was competent throughout, and the trial court did not abuse its discretion in denying his first mistrial motion and declining to hold a competency hearing at that time.

A. Legal Principles.

The constitutional guarantee of due process prohibits a court from trying or convicting a criminal defendant who is mentally incompetent to stand trial. (Rodas, supra, 6 Cal.5th at p. 231; People v. Mickel (2016) 2 Cal.5th 181, 194-195; U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, subd. (a), 15.) In that regard, section 1367, subdivision (a), incorporating the applicable constitutional standard, specifies that a person is incompetent to stand trial “if, as a result of 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.” Competence entails sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding, as well as a rational and factual understanding of the proceedings against him or her. (Rodas, supra, 6 Cal.5th at pp. 230–231.)

Procedurally, section 1368, subdivision (a) requires the trial court to suspend criminal proceedings and commence competency proceedings if “a doubt arises in the mind of the judge” regarding the defendant’s competence and defense counsel concurs. An accused has the right “to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense.” (People v. Pennington (1967) 66 Cal.2d 508, 518 (Pennington); Pate v. Robinson (1966) 383 U.S. 375, 385–386 .)

Once substantial evidence has been presented, a doubt as to the competence of the accused exists “no matter how persuasive other evidence—testimony of prosecution witnesses or the court’s own observations of the accused—may be to the contrary.” (Pennington, supra, 66 Cal.2d at p. 518.) Substantial evidence for competence purposes is evidence “that raises a reasonable or bona fide doubt” as to competence. (People v. Rogers (2006) 39 Cal.4th 826, 847.) The duty to conduct a competency hearing “may arise at any time prior to judgment. [Citations.]” (Ibid.; People v. Sattiewhite (2014) 59 Cal.4th 446, 464.)

When a doubt exists as to the defendant’s mental competence, the court must appoint an expert or experts to examine the defendant. The issue is then tried to the court or a jury under the procedures set out in section 1369. Except as provided in section 1368.1 (allowing for probable cause and motion hearings in certain circumstances), all criminal proceedings are to be suspended until the competence question has been determined. (§ 1368, subd. (c).) If after a competency hearing the defendant is found competent to stand trial, a trial court may rely on that finding unless the court “‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding. [Citations.]” (People v. Jones (1991) 53 Cal.3d 1115, 1153; People v. Mendoza (2016) 62 Cal.4th 856, 884.)

“Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 847.) “[T]he evidence must bear on the defendant’s competency to stand trial, rather than simply establish the existence of a mental illness that could conceivably affect his ability to understand the proceedings or assist counsel.” (People v. Ghobrial (2018) 5 Cal.5th 250, 270.) As a result, “to be entitled to a competency hearing, ‘a defendant must exhibit more than bizarre . . . behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]’” (People v. Lewis (2008) 43 Cal.4th 415, 524, overruled on another ground in People v. Black (2014) 58 Cal.4th. 912, 919.)

Thus, refusal to communicate with counsel, without more, does not indicate incompetence. (People v. Mendoza, supra, 62 Cal.4th at pp. 878–879.) Bizarre actions or statements in the courtroom likewise do not indicate incompetence. (People v. Welch (1999) 20 Cal.4th 701, 742.) Nor does disruptive courtroom behavior. (People v. Elliott (2012) 53 Cal.4th 535, 581–583.)

On appeal, we will affirm if substantial evidence supports the trial court’s findings. Where, as here, “our review of the record shows that there is substantial evidence to support the judgment, we must affirm, even if there is also substantial evidence to support a contrary conclusion and the [trier of fact] might have reached a different result if it had believed other evidence. [Citation.]” (People v. Riley (2015) 240 Cal.App.4th 1152, 1165–1166; see People v. Mendoza, supra, 62 Cal.4th at p. 883 [when reviewing a competency finding, the reviewing court does not substitute its judgment for that of the trier of fact or reweigh the evidence].)

B. Substantial Evidence Indicated Cruz Was Competent Throughout.

Substantial evidence demonstrated that Cruz was competent to stand trial, and any symptoms he displayed were the result of malingering.

The evidence discussed ante demonstrates the experts at trial repeatedly found Cruz competent. Those doctors that initially found Cruz incompetent concluded, after further evaluation, that he was malingering and choosing not to cooperate with his lawyers. Under our substantial evidence review, the presence of expert opinions that Cruz was, at times, incompetent, does not change this result. The findings of competence by Drs. Ochoa, Kim, Bangston, Markham, Lindsay, and other doctors at Patton support the trial court’s conclusion that Cruz was competent to stand trial.

Furthermore, Cruz himself said, “I am just at Patton to lessen my charges.”

III. THE TRIAL COURT PROPERLY DENIED CRUZ’S MISTRIAL MOTIONS.

Cruz argues the trial court erred in denying his first, second and third mistrial motions brought in May 2017 and October and December 2018. The motions asserted three grounds: (1) denial of due process based on his incompetency in another case at the outset of trial; (2) ineffective assistance based upon counsel’s failure at the outset of trial to raise the competence issue based on the other case; and (3) the trial judge’s asserted embroilment based on the trial court’s procurement of Cruz’s records from the Sheriff’s Department.[8] We are not persuaded.

A. Factual Background.

1. First Mistrial Motion.

Cruz’s oral motion for mistrial was brought in May 2017 after receipt of the April 2017 reports of Drs. Najera and Tumu. Counsel asserted that at the outset of trial, he believed Cruz would be declared competent in the other case and therefore moved forward with trial in this case. However, based on these recent reports, he declared a doubt. After finding Cruz competent, the court nonetheless suspended the proceedings.

2. Second Mistrial Motion.

Cruz’s second mistrial motion argued that (1) the trial court violated due process when it began the trial despite an incompetence finding in another case, and (2) he was denied his right to effective assistance of counsel when Seemen substituted out of the case on the eve of the closing arguments in the sanity phase. He asserted that he was prejudiced because he waived jury trial while incompetent.

3. Third Mistrial Motion.

Cruz’s third mistrial motion asserted that Judge Weis-Birnstein had become improperly embroiled in the case by obtaining Cruz’s jail and medical records in November 2018.

The trial court, in response to the decision in Rodas, emailed the Sheriff’s Department seeking Cruz’s disciplinary records, which included a dozen violations and a report of an assault in 2016. The parties held an in camera conference November 30, 2018.

The trial court stated at the hearings on June 28 and July 12, 2019, when it read its decision into the record, that the information sought pertained to Cruz’s medication. It stated: “This court’s purpose was to try to determine if the records would show that [Cruz’s] competence required medication; at what points in time [Cruz] had been taking medication; and when, if at all, he had discontinued medication and why.”

The trial court read the transcript of the in camera hearing. At the hearing, the trial court and defense counsel discussed the propriety of the court’s inspection of the medical records. After a discussion on this issue, the trial court stated it had not viewed the records, and it would be sending them back.

In particular, the trial court stated, “[b]ecause of the competency issues raised by the defense in its motion for mistrial, because counsel had argued and raised the point that the experts in the competency trial said that competency is a fluid thing—. . . and because of the Rodas case . . . this court felt it was incumbent upon it to obtain . . . [Cruz’s] medical records, mental health records, medicine records, and disciplinary records relating to mental health treatment and medication. . . . . [¶] These medical records were never received or looked at by this court. . . . [¶] This court believed [the records] possibly may have been beneficial—and I want to highlight that—beneficial to the defense as stated in an ex parte conversation on November 30, 2018 . . . .

“I have not looked at [the records]. They are sealed. And I wanted you to know in case you want to do anything with them. If you want to get a HIPAA waiver and look at them, you may. If you think it would be beneficial to your client, they will not be released to the other side or myself, unless you choose to raise that issue. What would you like to do?”

The trial court stated it was not embroiled and had no “leaning toward guilt or innocence, and [would] not make a decision until hearing all of the evidence and arguments of counsel.”

B. Discussion

Once a defendant has been found competent by the court, the court is not obligated to suspend proceedings to conduct another competency hearing unless “‘“it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding. [Citations.]”’ [Citation.]” (People v. Taylor (2009) 47 Cal.4th 850, 864.) The trial court “may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant’s mental state.” (People v. Jones, supra, 53 Cal.3d at p. 1153.) We accord great deference to the trial court’s ruling, as we are in no position to evaluate the defendant’s demeanor, including whether Cruz’s conduct established incompetency or malingering. (People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on another ground in Price v. Superior Court (2001) 25 Cal. 4th 1046, 1069.)

Further, a trial court should grant a motion for mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged. (People v. Avila (2006) 38 Cal.4th 491, 573.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.) We review the denial of a mistrial motion for abuse of discretion. (People v. Sanchez (2019) 7 Cal.5th 14, 64.) “‘“[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.”’ [Citation.]” (People v. Charles (2015) 61 Cal.4th 308, 333.)

Here, at the time the trial court ruled on the first mistrial motion: (1) Cruz had been found competent in this proceeding by Drs. Ochoa and Kim in 2014, and by no fewer than four doctors at Patton in 2016; (2) Dr. Bangston had reviewed the Patton report and found no basis to challenge that finding; and (3) Dr. Najera in May 2017 found Cruz competent. Given this state of the record, the trial court did not abuse its discretion in denying Cruz’s mistrial motions.

1. First and Second Mistrial Motion

The first and second mistrial motions were brought on the same grounds, namely, that Cruz was not competent at the outset of trial. The first oral motion made in May 2017 was directed at Drs. Najera and Tumu’s reports, while the second motion made in October 2018 argued the trial court itself should not have commenced trial in the first instance given the declaration of incompetence in the other case (No. 854), demonstrating Cruz was incompetent in March 2017.

As the record demonstrates, Cruz was found competent at Patton in August 2016. At the time he waived jury trial and entered his plea, November 1 and 16, 2016, respectively, No. 854 had not yet been filed (it was filed November 17, 2016), and doubt was not declared until January 27, 2017. When trial commenced, Cruz’s counsel did not declare a doubt because he believed competency would be restored in No. 854. In May 2018, Judge Ford found Cruz competent to stand trial, yet once again, according to his counsel, a doubt was declared in another case in July 2018. In September 2018, however, Cruz was found competent in both Nos. 729 and 854. Although at times Cruz was found incompetent, ultimately this finding would be reversed. Substantial evidence therefore supported denial of the first and second mistrial motions. We find no error.

2. Third Mistrial Motion.

With respect to the third mistrial motion, we find no improper embroilment. Embroilment occurs when the judge becomes personally involved in the proceedings. (In re Buckley (1973) 10 Cal.3d 237, 256.) Due process requires a new and impartial judge where there is evidence that the trial judge “has become ‘personally embroiled’” in the trial. (Mayberry v. Pennsylvania (1971) 400 U.S. 455, 465.) There must be “‘such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.’ [Citation.]” (Taylor v. Hayes (1974) 418 U.S. 488, 501.)

Rather than becoming embroiled, the trial court was responding to its duty as set forth in the then recent Rodas decision. Specifically, Rodas held that, “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. In the face of such evidence, a trial court’s failure to suspend proceedings violates the constitutional guarantee of due process in criminal trials. [Citation.]” (People v. Rodas, supra, 6 Cal.5th at p. 223.)

Further, given that Cruz had, on numerous occasions, a doubt declared in other proceedings and the trial court was made aware of a potential medication issue, the trial court sought to investigate. The record demonstrates the trial judge believed she was assisting the defense in obtaining information that would be helpful to Cruz, and that the information would expedite the process. After counsel made its objections known, the trial judge did not review the materials.

We find no embroilment and no error in the denial of the third mistrial motion.

IV. COUNSEL WAS NOT INEFFECTIVE.

Cruz argues that he received ineffective assistance from his trial counsel, raising this issue in two different contexts. Cruz argued in his second mistrial motion that his due process rights were violated by the commencement of trial when a doubt had been declared in No. 854, and he received ineffective assistance due to Seemen’s departure from the case on the eve of the sanity phase trial.

A. Factual Background.

1. Outset of Trial: Second Mistrial Motion.

In his second mistrial motion, Cruz argued counsel (Seemen) was ineffective because he did not declare a doubt at the outset of trial. As noted above, on February 1, 2017, counsel informed the trial court that a doubt had been declared in another case (No. 854), but that Cruz had not yet been declared incompetent. The trial court and counsel discussed People v. Dudley (1978) 81 Cal.App.3d 866, where the appellate court found no error in an identical situation. (Id. at pp. 870–872.) The trial court informed counsel it would not suspend proceedings unless Cruz was found incompetent. Counsel agreed, stating “I would just say I’d like for it—I believe [there] should be a determination . . . made prior to starting trial in this case.” The trial court agreed. After Cruz failed to appear for two more dates, counsel again advised the court he was being evaluated, but that counsel was not declaring a doubt in the current case.

2. Seemen’s Departure.

Benitez argued that he was at a tremendous disadvantage because he would never understand the case as well as Seemen. He would not be able to evaluate witness credibility, and the lack of continuity prevented him from developing a consistent strategy.

B. Discussion.

The right to effective assistance of counsel derives from the Sixth Amendment right to assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684–686.) To state a claim that counsel rendered constitutionally ineffective assistance, “‘the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, [namely], a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.’ [Citation.]” (People v. Hoyt (2020) 8 Cal.5th 892, 958.)

“When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) “On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]” (Ibid.)

Cruz cannot demonstrate prejudice on this record. On the first issue, the colloquy between the trial court and counsel indicates that although a doubt had been declared in the other case, counsel did not consider it necessary to do so in this case unless and until an incompetence finding was made in the other proceeding. In People v. Dudley (1978) 81 Cal.App.3d 866, a competency hearing was held prior to trial and the trial judge found the defendant competent to stand trial. (Id. at pp. 870–871.) However, the trial judge did not, sua sponte, suspend proceedings and reopen the section 1368 hearing when, midtrial, he received information that the defendant had been found not competent to stand trial in another proceeding pending before a different judge. (Id. at p. 870.) Dudley rejected the defendant’s contention that he was entitled to a second hearing before the judge who found him competent. (Id. at p. 872.) The appellate court found that the other judge’s decision did not constitute substantial evidence requiring the trial judge to vacate his own decision on the issue. (Ibid.) Dudley concluded, “[a]side from the simple fact that [the other judge] reached a different conclusion, defendant has advanced no factual matters nor legal argument bearing on the correctness of [the trial judge’s] ruling.” (Ibid.) Such is the case here.

On the second issue, Cruz’s argument assumes prejudice based upon his new substitute counsel’s asserted inability to evaluate witnesses or form a cogent strategy. Cruz, however, does not argue how this translates to prejudice, namely, had Seemen remained his counsel, the result would have been different. Here, Cruz cannot show any lack of preparation or continuity. Benitez was immediately assigned and given eight months to prepare motions, call witnesses, reopen Cruz’s testimony, and prepare for the sanity phase of trial. He was given all of the prior transcripts in order to determine how best to prepare. Further, Seemen had rested in the guilt phase, was not going to call any more witnesses in the guilt phase, and did not intend to present any witnesses or records in the sanity phase. Seeman asserted he would rely solely on Cruz’s testimony to argue a lack of specific intent as well as for the NGI defense because Dr. Booker’s testimony, the expert on the issue of sanity, was detrimental to the defense. Thus, observation of witnesses was not key, nor was continuity of preparation. As a result, Cruz has not demonstrated he was prejudiced by the change in counsel.

IV. JUDICIAL BIAS.

Cruz argues that at the hearings on the February 13, 2019 motion to continue trial, the trial court demonstrated impermissible bias in its “inability to compartmentalize” its personal beliefs and demonstrated its lack of impartiality, requiring reversal of his convictions.

A. Factual Background.

On February 19, 2019, Cruz moved to continue trial and suspend proceedings based upon the doubt declared in No. 411. In that case, Dr. Rothberg had evaluated Cruz and found him incompetent to stand trial.

The trial court stated, “[Cruz is] the consummate actor, in this court’s humble opinion. He has a way of being able, when he is faced with a new bench officer, a new attorney, to con every one of those people.” The trial court noted that Dr. Rothberg’s report stated that Cruz was able to provide a “calm and organized history,” and every psychologist’s report in this case stated something similar.

Defense counsel argued that some of the initial reports did not find malingering. The trial court explained that Judge Ford, with the benefit of all the reports, found Cruz competent, and that Dr. Rothberg’s report did not carry much weight because Dr. Rothberg had not read the previous reports. The trial court stated, “Just like Judge Edwards was fooled into thinking that [Cruz]—because he puts on a good act, that second prong is not there, that he can’t cooperate [with his counsel].”

The trial court finished, “I’m going to deny your motion . . . . I believe [Cruz] is a fox. He’s a con man. He has tried over and over. He has preyed upon the stupidity of the prosecutors in this case to file cases in the jail while he is in trial on a serious case. They don’t need to file those cases, but they go ahead and they do it. And that gives [Cruz] an opportunity to play the system over and over and over again.”

B. Discussion.

Cruz argues the judge’s comments were inappropriate because the judge was the sole trier of fact in this case.

A defendant has a due process right to an impartial trial judge under the state and federal Constitutions. (Arizona v. Fulminante (1991) 499 U.S. 279, 309; People v. Brown (1993) 6 Cal.4th 322, 332.) The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. (Bracy v. Gramley (1997) 520 U.S. 899, 904–905 People v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) “On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of ‘“a fair, as opposed to a perfect, trial.”’ [Citation.]” (People v. Guerra, supra, 37 Cal.4th at p. 1112.)

Our “role is not to examine whether the trial judge’s comments left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge’s behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial. [Citation.]” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.) “Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias. [Citation.] Numerous and continuous rulings against a party are not grounds for a finding of bias.’ [Citation.]” (Ibid.)

The trial court’s comments on Cruz’s manipulation of the proceedings in order to obtain competency inquiries for the purpose of delaying the trial may have been better left unsaid, but they did not deprive Cruz of a fair trial or demonstrate judicial bias. On the contrary, repeatedly, when the proceedings in this case came to a critical juncture, Cruz would instigate the filing of a new action against himself in order to obtain another declaration of doubt. Once the necessary experts had evaluated Cruz over a sufficiently long period of time in order to ascertain he was malingering or feigning symptoms, however, they concluded he was competent to stand trial.

The trial court’s comments thus reflect some understandable frustration at the unnecessary delays in the proceedings. The statements did not indicate the trial court’s view, if any, on Cruz’s guilt. The trial court did not disparage Cruz’s testimony in either phase of the trial, nor the evidence presented by the defense concerning the charges. The trial court’s comments do not demonstrate prejudicial bias.

V. SUBSTANTIAL EVIDENCE SUPPORTS CRUZ’S BURGLARY CONVICTIONS ON COUNTS 1 AND 8.

Cruz argues his due process rights were violated because the prosecution did not prove beyond a reasonable doubt that he entered the residences of Forde (Count 1) and Schy (Count 8) with the intent to commit larceny or another felony. Rather, he “was a crazed person obviously experiencing a psychotic episode or under the influence of a narcotic or both” and his only intent in entering the residences was to escape from the people who were chasing him. We disagree and conclude substantial evidence supports the conclusion that Cruz harbored the requisite intent. To the extent this argument also encompasses the issue of whether, by reason of his insanity, he could not form the requisite intent, we also disagree.

A. Factual Background.

1. Joan Forde

Joan Forde, age 84, lived alone in an apartment in Pacific Palisades. On August 11, 2014, she awoke around 7:00 a.m. and saw Cruz standing in her bedroom. Cruz stated that “cops [we]re all over” and he “[had] to get out of here.” Cruz insisted he needed to change his clothes. Forde gave Cruz some clothing. She gave him money, and Cruz took a gold necklace. Cruz said he wanted to change his appearance to escape the police, so he cut off all his hair in her bathroom.

Cruz grabbed Forde tightly, led her to the garage, put her in her car, and told her to drive. They drove onto Sunset Boulevard. Forde realized Cruz was holding a box cutter against her side. Cruz said there were cops all over. Forde saw a construction site and purposefully drove her car into a truck. Cruz was very angry and jumped out of the car.

2. Julie Schy.

Later on August 11, 2014, at 7:50 a.m., Julie Schy was at her home in Pacific Palisades. She went upstairs and saw Cruz standing in front of her open bedroom balcony doors. Cruz motioned with his hand, leading Schy to believe he had a gun in his pocket.

Cruz told Schy, “give me your car or I’m going to kill you.” Schy told him the keys were downstairs, and Cruz followed her downstairs.

Schy ran to the front door to escape, but Cruz blocked her. Cruz said, “they’re after me,” “I need clothes” “I need a jacket.” Schy gave Cruz a large grey hoodie, and Cruz put it on. Cruz got into Schy’s white Lexus SUV, and drove away.

3. Trial Court Findings.

The trial court found Cruz had the necessary specific intent for burglary. The trial court relied on Dr. Booker’s description of a manic episode and his opinion that Cruz’s systematic, organized, sophisticated, goal-directed behavior during the crimes was inconsistent with patients in severe mania.

In rejecting Cruz’s claim he was in Forde’s house to use her phone to ask his parole agent to come pick him up, the trial court observed this testimony was contradicted by Cruz’s testimony that he told Detective Evans that he was trying to run from parole and that he never used the phone. Further, Cruz testified that he had no money, and he had asked Forde for money, and took her necklace. He also kidnapped her. He did not make a phone call.

The trial court similarly rejected Cruz’s claim that he entered Schy’s home to ask for help and to make a phone call. Cruz had his hand in his pocket simulating a gun pointed at Schy. Cruz told Schy, “give me your car or I’m going to kill you,” demonstrating his specific intent on entry was to deprive her of her property. He neither asked for help nor made a call.

B. Standard of Review.

In reviewing a challenge to the sufficiency of the evidence, we consider, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Navarro (2021) 12 Cal.5th 285, 302.) Substantial evidence is that which is reasonable, credible, and of solid value and which would support a finding beyond a reasonable doubt. (Ibid.) We do not question the credibility of testimony, nor do we reconsider the weight to be given any particular item of evidence. (Ibid.)

C. Discussion.

Under California’s statutory scheme, persons who are mentally incapacitated are deemed unable to commit a crime as a matter of law. (§ 26; People v. Powell (2018) 5 Cal.5th 921, 955.) Mental incapacity is determined by the M’Naghten test for legal insanity provided in section 25, subdivision (b). (People v. Powell, supra, 5 Cal.5th at p. 955.) Under M’Naghten, insanity is established if the defendant was unable either to understand the nature and quality of the criminal act, or to distinguish right from wrong when the act was committed. (Ibid.)

With respect to the formation of intent, “[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).) A defendant “may suffer from a diagnosable mental illness without being legally insane under the M’Naghten standard. [Citations.]” (People v. Mills (2012) 55 Cal.4th 663, 672.) A finding of sanity is subject to the substantial evidence standard of review, and in a sanity trial, the burden is on the defendant to prove insanity by a preponderance of the evidence. (§ 25, subd. (b); People v. Powell, supra, 5 Cal.5th at pp. 955–956.)

Burglary is defined as the entering of a building with the intent to commit a larceny or a felony. (§ 459.) The elements of first degree burglary are (1) entry into a structure currently being used for dwelling purposes, (2) with the intent to commit a theft or a felony. (People v. Sample (2011) 200 Cal.App.4th 1253, 1261.) Generally, intent must be inferred from the circumstances of the offense. (People v. Holt (1997) 15 Cal.4th 619, 669-670.) “‘“While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence.” [Citation.]’ [Citation.]” (Ibid.)

Here, the fact finder was entitled to discard Cruz’s self-serving testimony concerning his intent upon entering Forde and Schy’s dwellings and rely on the circumstances to infer Cruz possessed the necessary specific intent to commit a larceny or other felony.

Cruz asserts his motivation in entering Forde’s apartment was to get out of sight: he entered what he believed was an unoccupied apartment to call his probation officer to come get him, and he did not immediately ransack the home or look for items to steal. There is substantial evidence to the contrary. A finding of specific intent is consistent with Cruz’s conduct in entering Forde’s apartment without permission, taking clothing, and taking her car. He also demanded money and jewelry. This conduct is consistent with the intent to deprive Forde of her property. The trial court properly could infer Cruz formed the requisite specific intent before entering Forde’s apartment.

Cruz similarly asserts his motivation in entering Schy’s house was to hide from the persons who were chasing him. He points out that Schy described him as “not normal.” But Cruz told Schy when he first saw her, “give me your car or I’m going to kill you.” He repeatedly told her he was going to kill her, demanded clothes, and stole her car. This is substantial evidence of his intent to unlawfully deprive her of her property.

DISPOSITION

The judgment of the superior court is affirmed.

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

[1] All further statutory references are to the Penal Code unless otherwise noted.

[2] Department of State Hospitals – Patton (Patton) is a forensic psychiatric hospital located in Patton, CA, in San Bernardino County. A significant portion of the patient population is there for competency evaluation/restoration of competency. https://www.dsh.ca.gov/Patton/index.html.

[3] Cruz made Marsden motions on February 16, 2017, March 2, 2017, March 9, 2017, May 24, 2018, and April 16, 2019. The trial court denied all of the motions.

[4] No case number was provided.

[5] As discussed post, the court read portions of this sealed transcript into the record when ruling on the motion.

[6] Dr. Booker also testified on February 13, 2019, March 22, 2019, and April 16, 2019.

[7] No case number appears in the record.

[8] Cruz’s opening brief separates his mistrial motions across two arguments, and similarly separates his ineffective assistance of counsel claims across two different arguments. For the sake of clarity, we consolidate discussion of his contentions regarding the mistrial motions here and address his ineffective assistance claims in Part III, post.