Filed 8/18/26 P. v. Kazemi CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B342179
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA107058)
v.
JALAL KAZEMI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph J. Burghardt, Judge. Affirmed.
Bird Rock Law Group, Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Jalal Kazemi, through his appointed attorney, seeks reversal of his criminal conviction on the sole ground that the trial court erroneously refused to declare a second doubt regarding his competency to stand trial. We now affirm the judgment, because Kazemi’s conduct following his first competency evaluation did not present a substantial change of circumstances or new evidence that required revisiting competency.
I. A.
In February 2023, the People charged Kazemi with a single count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1), and included a special allegation that Kazemi personally used a dangerous and deadly weapon in violation of Penal Code section 969f. (Further unspecified statutory references are to the Penal Code.) Kazemi pleaded not guilty and was convicted after an October 2024 jury trial.
At trial, the victim, Richard Calabro, testified for the People. While Calabro jogged in Santa Monica, Kazemi drove a car through an intersection, almost hitting Calabro. Calabro yelled, “It’s a fucking stop sign.” Calabro continued on, reached the sidewalk, and saw the same car turn and drive towards him. The front bumper of the car hit Calabro’s ankle, and Calabro jumped backwards.
Four percipient witnesses testified for the People. They testified consistently with each other and corroborated Calabro’s description of events: an argument occurred between a jogger and the car’s driver in the intersection, the car turned and accelerated towards the jogger, the jogger jumped out of the way, and the car hit a wall.
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Kazemi testified in his defense. He claimed Calabro was the aggressor. Calabro had banged on Kazemi’s stopped car with his fist. Calabro cursed at Kazemi, and Kazemi replied, “when you see a car, stop.” Calabro approached and grabbed Kazemi’s neck, shoulders, and shirt through the open car window. Calabro tried to pull Kazemi out of the car. Kazemi removed his hands from the steering wheel to push Calabro away. During the struggle, Kazemi’s foot moved off the brake. Calabro held the steering wheel and steered the car, while Kazemi pushed on the accelerator. Calabro jumped to the side, the car went over the curb, a front tire popped, and an airbag went off, injuring Kazemi.
B.
Having summarized the trial evidence for context, we recount the proceedings regarding Kazemi’s competency that are central to this appeal.
In January 2024, at a pretrial conference, defense counsel declared a doubt regarding Kazemi’s competency to stand trial. She cited her conversations with Kazemi, as well as a report she solicited from Robin Rhodes Campbell, Ph.D. The court reviewed a portion of Dr. Campbell’s report and concluded “the opinion of a mental health professional that [Kazemi is] not competent raises a doubt.” The court suspended criminal proceedings and transferred the case to the mental health division for competency proceedings.
The mental health division appointed Dr. Karine Shakib-
Beltran to evaluate Kazemi’s competency, and she found him competent. She met Kazemi face-to-face and evaluated him using a “structured competency screening instrument” and through a clinical interview. In her 12-page report, Dr. Shakib-
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Beltran described how Kazemi presented “some non-bizarre delusions of a grandiose and persecutory nature,” but she had insufficient information to determine whether Kazemi definitively suffered from a mental disorder because Kazemi refused to participate in psychological testing. Kazemi reported potentially delusional thoughts including that the police, fire department, prosecutor, and judge were all “in on it” and working against him in the case, that he had been an advisor to President Trump, and that his ex-wife and son were stealing from him. The majority, if not all, of his persecutory thoughts were “associated with this case.” Dr. Shakib-Beltran stated that anxiety or concern over his fate could account for Kazemi’s “ostensibly outlandish” thoughts, especially since he was 67 years old with no prior criminal history. There was “insufficient information to determine that Mr. Kazemi [was] in fact experiencing delusional disorder, which is a type of psychotic disorder whose main symptom is the presence of one or more delusions. Mr. Kazemi’s behaviors are not supported by a psychotic disorder, such as schizophrenia, because he does not have the disorganization in thought and speech in addition to the delusions. They are also not supported by a mood disorder, such a[s] bipolar disorder, because he does not have the requisite mood instability.” There was also insufficient information to support a personality disorder.
Kazemi understood and could converse about the criminal justice system, the role of case participants, the People’s burden of proof beyond a reasonable doubt, and the charges he faced. While Kazemi’s personality and strenuous belief in his innocence could make him “a challenging client,” “Kazemi demonstrated an ability to rationally cooperate with counsel to construct his
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defense.” He remained “amenable to redirection” even if “no amount of psychiatric treatment w[ould] change his obstinate approach, attitude, and character.” Any difficulty working with defense counsel would be “volitional and/or personality driven as opposed to due to an underlying mental health condition.” And Kazemi’s fatalistic desire to have his case proceed stemmed “from a place of frustration as opposed to delusions.” Dr. Shakib- Beltran believed “Kazemi’s personality may make him, at times, unwilling to rationally cooperate with his counsel; though he is not unable to do [so] as a result of any mental illness or disorder.”
Dr. Shakib-Beltran concluded, as to Kazemi, there was “insufficient evidence to overcome the presumption of competence.” His behavior and personality aside, there was no impairment of Kazemi’s ability to understand the proceedings against him or assist counsel.
In March 2024, the mental health division found Kazemi competent to stand trial based on Dr. Shakib-Beltran’s report, reinstated criminal proceedings, and transferred the case back to criminal court.
On June 11, 2024, just three months later and two days before jury selection was scheduled, defense counsel and the prosecution appeared at an “add on” hearing. Defense counsel again raised a doubt about Kazemi’s competence to stand trial, believing he suffered schizophrenic delusions and could not rationally assist in his defense. Kazemi was not present when counsel declared this doubt, and counsel advised Kazemi would object to her pursuit of further competency proceedings. Counsel recounted additional statements Kazemi had made to her the prior day as the basis for her doubt. These included (1) a higher authority had mandated to his defense attorney that he be
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convicted; (2) he had $165 million but would not hire private counsel; and (3) his ex-wife and son tried to steal or had stolen $500,000 from him. Counsel also recounted how, in the past, Kazemi had said “the FBI and CIA have cornered him to work for them and he’s considering it,” and that Kazemi had recently reiterated those statements. Counsel conceded, however, that his supposed connections to the U.S. government were addressed in the prior competency report but challenged the report’s conclusions about them. Counsel then added, “this is not new” and Kazemi “said this all along, but he reiterated it yesterday that he does believe that all the parties involved, including the firefighters, the police officers, are all colluding with the five witnesses against him in a conspiracy to frame him.” Counsel stated Kazemi also believed the court was “in on it, and that is one of the reasons that he would not stipulate to a bench trial,” but, again, Kazemi’s suspicions were not new and Kazemi “might have made the same decision before he was found competent, but we never discussed the option.”
The court asked counsel whether there had been decompensation since the determination of competency. Counsel responded, “everything that I’ve witnessed is what I’ve told you. So I have a doubt, but I’ve always had a doubt. I do think this is new information that for me is more evidence of the doubt that I’ve always had.” The court summarized its hesitation towards declaring a further doubt, stating the new information offers “just sort of more support for your original belief” and that “nothing . . . indicate[s] that he has decompensated.” The court asked counsel if she wanted to be heard further. Counsel said, “no.” The court declined to declare a new doubt.
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Six days later, on June 17, 2024, stand-in defense counsel raised another doubt about Kazemi’s ability to rationally assist in his defense. By this time, a jury had been selected, and trial was supposed to commence. But Kazemi’s attorney of record was ill, necessitating stand-in counsel and postponement of trial. At the June 17 hearing, stand-in counsel proffered the following statements from Kazemi as support for declaring a doubt: (1) a juror was a government plant; (2) he has $165 billion and is a biblical figure, so whether he goes to prison may not matter; (3) he has been recruited by the FBI and CIA; (4) he is physically present today but his presence is elsewhere; and (5) he refused to sign releases for the defense to evaluate his medical records.
Kazemi interrupted stand-in counsel’s presentation to seek removal of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During the Marsden hearing, Kazemi described a disagreement with his counsel about mental health diversion and the Dr. Shakib-Beltran report. He believed the report, which deemed him competent, described him positively, while his attorney believed the report said negative things about him. Kazemi asked to see the report, and his counsel showed him the second page. Kazemi responded, “this is not the same report,” and counsel showed him the first and last pages of the report to prove that it was. Kazemi then stated, “I can understand all those things. I’m not a child. Those reports can be — for lack of a better word — can be manipulated. I did not object — but I told her, and I objected to it. I really, really resented the way that she was doing this.” They then discussed various options for how the case could proceed. Kazemi also discussed the merits of the prosecution.
The court denied the Marsden motion.
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After the Marsden hearing, the court returned to the competency matter, found nothing caused it to believe Kazemi had decompensated since the previous competency finding, and refused to declare a doubt. “The concerns that have been raised,” the court stated, “are just more examples of — if they’re accurate — they’re more examples of delusional thought and [a] delusional thought process that were present at the time when he was found competent.”
On June 20, 2024, the court declared a mistrial due to the original defense counsel’s unavailability. Kazemi sought the appointment of a new attorney and mentioned chain of custody issues regarding his car that he wanted to discuss with his attorney. The court advised Kazemi to raise the issue at the next court date.
On July 23, 2024, the next court date, Kazemi made another Marsden motion. Issues of competency and mental health were not discussed, and the motion was denied.
On September 26, 2024, Kazemi again brought a Marsden motion. Kazemi discussed disagreements he had with his counsel over defense strategy. Kazemi articulated several strategies he had proposed. At this hearing, counsel again mentioned hesitations with Kazemi’s competence and her interest in providing jurors with evidence of how Kazemi had, years ago, suffered a condition necessitating brain surgery, but Kazemi would not sign a medical release to obtain records. The court denied the Marsden motion.
On October 1, 2024, after the first day of voir dire in what would be Kazemi’s trial, and outside the presence of both potential jurors and Kazemi, defense counsel again expressed a doubt about Kazemi’s competence. Kazemi had told counsel he
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was fine with going to prison because he was a prophet and that is where prophets go. Counsel could not have a coherent exchange with Kazemi after court the prior day, and believed Kazemi’s delusions factored into his decision-making. Counsel also challenged Dr. Shakib-Beltran’s report, which was the basis for finding Kazemi competent, noting it indicated Kazemi refused to complete psychological testing as part of that competency evaluation and questioning its couching of some of Kazemi’s beliefs as “possible albeit highly improbable.” Counsel believed Kazemi’s incompetency drove all his poor decisions in the case and, if restored to competence, he would have accepted mental health diversion.
The court again declined to declare a doubt. It found there was not a sufficient change in circumstances or anything new in terms of decompensation since the original competency finding.
On October 2, 2024, after the close of the People’s case-inchief , defense counsel moved for a mistrial due to Kazemi’s incompetence. The trial court denied the motion for the same reasons it had previously declined to declare a doubt. Kazemi then elected to testify. He indicated his agreement that he could testify only about the relevant issues, could not speculate, and had to remain within the constraints of the evidentiary rules. He then clarified with the court that he could testify about what happened before the incident, and advised he wanted to recreate how the accident occurred with a toy car.
Kazemi’s testimony spanned two court days. He mentioned his business background involving lucrative contracts. He briefly mentioned, at his counsel’s prompting, that the CIA and FBI looked into hiring him for his skillsets and had investigated his past “under [his] employment.” He detailed his prior brain injury
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and surgery, showing the scars to the jury. He described his view of the incident with Calabro and how Calabro was the actual aggressor. Twice he mentioned rhetorically that he should be believed unless he was insane.
After the defense rested, defense counsel again doubted Kazemi’s competency and the trial court again declined to declare a doubt. The jury returned a guilty verdict.
On November 12, 2024, the court sentenced Kazemi.
During Kazemi’s allocution, he sought to disprove the prosecution’s trial argument that he had lied. He discussed his work background, which included contracts with the government and private business dealings involving oil sales and billions of dollars, to establish he was not a liar. He acknowledged, “the case ha[d] already gone to the jury. But I resent the fact that people destroy people — destroy their lives just for an ounce of progress in their career. They have no idea of what they’re doing with the people’s life. And that’s the sad thing about it. I’m not a liar.” At this point, defense counsel interrupted the allocution to again declare a doubt about Kazemi’s competency. Counsel stated: “I’m sorry — but anyone who would choose to go to prison for over a year over — just from the comfort of their home getting on Zoom and attending a video therapy appointment, there’s something wrong. And I think that’s even more evidence that he is not competent now. He wasn’t competent before. I’ll submit on that. I just — I really don’t think he’s competent.”
The court again declined to declare a doubt: “The court does not find a sufficient change in circumstances. I understand the defense position that he’s always been incompetent, but the court does not find a sufficient change in circumstances. I’m not disputing the fact that there are some mental health issues there.
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And that’s why I’m going to be sentencing him to the low term — at least that’s my initial indication before listening to the People.”
The court then sentenced Kazemi to the low term of two years in state prison. Kazemi timely appeals.
II.
Kazemi’s appellate counsel argues the trial court erred when it declined Kazemi’s trial counsel’s multiple requests, following the first competency proceeding, to declare a new doubt about Kazemi’s competency to stand trial.
Federal and state law “prohibit[ ] the state from trying or convicting a criminal defendant who is mentally incompetent.” (People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 226–227 (Bertsch); accord, People v. Rodas (2018) 6 Cal.5th 219, 230 (Rodas).) It is a defendant’s burden to show he lacks competence, by a preponderance of the evidence, because the law otherwise presumes competence. (Bertsch, at p. 229.) To do so, a defendant must establish that “ ‘as a result of a mental health disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ ” (Id. at p. 227, quoting § 1367, subd. (a).) Only the latter prong, assisting counsel, is at issue here.
The decision whether to reinstate competency proceedings, though, “is fundamentally different from the initial decision to institute competency proceedings. Mere doubt about a defendant’s competency is insufficient, since the court has already gone beyond the identification of doubt and determined that defendant is not incompetent.” (Bertsch, supra, 19 Cal.5th at p. 236.) Accordingly, “ ‘ “ ‘[o]nce a defendant has been found competent to stand trial, a second competency hearing is required
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only if the evidence discloses a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant’s competence.’ ” ’ ” (Bertsch, at p. 233; accord, Rodas, supra, 6 Cal.5th at p. 231 [trial court “may rely” on prior competency finding unless “ ‘ “presented with a substantial change of circumstances or with new evidence” casting a serious doubt on the validity of that finding’ ”]; People v. Jones (1991) 53 Cal.3d 1115, 1153.)
The inquiry is fact specific. (Rodas, supra, 6 Cal.5th at p.
235.) Neither “ ‘substantially duplicat[ive] evidence’ ” of that considered at the original competency proceedings nor “ ‘evidence of relatively minor changes in the defendant’s mental state’ ” is enough. (Bertsch, supra, 19 Cal.5th at p. 233, quoting Rodas, at pp. 234–235.)
Further, a trial court may consider its own observations of the defendant when “ ‘determining whether there has been some significant change in the defendant’s mental state. This is particularly true when . . . the defendant has actively participated in the trial.’ ” (Bertsch, supra, 19 Cal.5th at p. 233.) “ ‘An uncooperative defendant is not tantamount to an incompetent one.’ ” (Id. at p. 228.) “ ‘More is required than just bizarre actions or statements by the defendant to raise a doubt of competency’ [citation], or ‘counsel’s unparticularized assertion that defendant’s condition had deteriorated, with no explanation of how it had done so.’ ” (People v. Buenrostro (2018) 6 Cal.5th 367, 409–410.) “[G]eneral assertion[s] of defendant’s worsening condition and inability to cooperate with counsel [are] inadequate to justify [a] second hearing.” (People v. Medina (1995) 11 Cal.4th 694, 734; accord, Buenrostro, at p. 410 [“Trial counsel
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offered only unparticularized assertions and brief descriptions of isolated incidents that, in his view, reflected a ‘deepening’ of defendant’s inability to understand the legal proceedings and cooperate with counsel”]; Bertsch, at p. 236 [expert opinion of incompetency insufficient to declare second doubt if no evidence of changed circumstances or new evidence]; People v. Weaver (2001) 26 Cal.4th 876, 952–953 [same].)
“We review for substantial evidence the trial court’s finding of no substantial change of circumstances and no new evidence casting serious doubt on the initial competency determination, and we review its decision not to reinstate competency proceedings for an abuse of discretion.” (Bertsch, supra, 19 Cal.5th at p. 233.)
Substantial evidence supports the court’s determination that Kazemi had not shown a substantial change in his circumstances or new evidence that casts a serious doubt on the initial competency determination. The circumstances and evidence Kazemi’s counsel identifies on appeal do not compel the opposite conclusion.
Dr. Shakib-Beltran’s report serves as our benchmark. (See Bertsch, supra, 19 Cal.5th at p. 234.) Dr. Shakib-Beltran considered purportedly delusional statements during her initial competency evaluation. This includes Kazemi’s statements, of a grandiose or persecutory nature, that his family had stolen from him, that the court, case participants, and witnesses were all “in on it” and working against him, and that he had worked with high levels of the government, like President Trump.
Kazemi’s asserted later statements do not sufficiently tread new ground. For instance, statements about the FBI and CIA being interested in Kazemi as an employee or about his
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purported wealth were akin to other grandiose statements Dr. Shakib-Beltran had considered. So were his unadorned comparisons of himself as a criminal defendant enduring prosecution to a biblical figure or prophet destined for prison, which also fit Dr. Shakib-Beltran’s view of Kazemi as fatalistic. (See People v. Marshall (1997) 15 Cal.4th 1, 33 [newly reported statements that defendant had “large amounts of money,” was “born in Spain,” and “was a god,” as well as defendant’s statement that “the President and Governor were conspiring against him, and that the conspirators would be beheaded,” were insufficient to require declaring a new doubt as “[m]ore is required than just bizarre actions or statements”]; Bertsch, supra, 19 Cal.5th at p. 236 [a refusal to assist counsel based on religious revelations “ ‘did not necessarily bear on [defendant’s] competence . . . , or reflect a substantial change of circumstances or new evidence casting serious doubt on the validity of the prior finding of defendant’s competence’ ”].)
Other conduct Kazemi’s counsel mentions on appeal, like disagreements over whether to waive his constitutional right to a jury trial based on a perception that case participants were biased against him or Kazemi’s refusal to seek mental health diversion, was also insufficient to trigger a second competency proceeding. Dr. Shakib-Beltran had already addressed Kazemi’s suspicions about the court and the criminal justice system and had found Kazemi would be “a challenging client,” but it was due to his belief in his own innocence and reflective of his personality, not a reflection of incompetency due to a mental health condition. Also, Kazemi has not shown how those refusals to acquiesce in trial counsel’s desired defense strategy evinced a new inability, rather than a continued unwillingness, to assist counsel. (See
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Bertsch, supra, 19 Cal.5th at p. 228 [“ ‘uncooperative defendant is not tantamount to an incompetent one’ ”].)
As the People note, Kazemi was able to advocate for himself at various points throughout the prosecution, including at several Marsden hearings. The trial court thus had several opportunities to view Kazemi and compare his behavior from before and after the competency proceeding, and evidently concluded there had not been a significant change. (Bertsch, supra, 19 Cal.5th at pp. 233, 235 [trial court observations are evidence bearing on whether to order a second competency hearing].)
Kazemi’s appellate counsel contends one of the Marsden hearings instead supported declaring a doubt as to competence. Counsel points to Kazemi’s belief that trial counsel had manipulated Dr. Shakib-Beltran’s report, relayed during the June 17 Marsden hearing. During that June 17 hearing, Kazemi expressed frustration with his counsel and the mental health and competency proceedings generally. He provided the example of a disagreement he and counsel had over the report as well as case strategy. Kazemi himself viewed the report as positive because it deemed him competent and, among other things, indicated he was intelligent. He viewed his attorney as wielding the report to suggest he had mental health issues that cast him in a negative light. His claim of “manipulation,” then, can be viewed as a colorable claim of cherry picking evidence. Kazemi, moreover, was able to describe, as that June 17 hearing continued, his version of events of the alleged crime. And in a subsequent Marsden hearing, Kazemi was again able to describe his version of events, as well as specific defense strategies he wanted to analyze. In light of this, we do not believe the isolated comment regarding a disagreement with counsel constitutes evidence that
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casts a serious doubt on the original competency proceeding or presents a substantially changed circumstance. (See People v. Blacksher (2011) 52 Cal.4th 769, 798 [“his steadfast contention” that the victim was “responsible reflected an ability to formulate a defense to the charges against him”].)
Kazemi’s appellate counsel contends a trio of cases establish the trial court should have declared a second doubt due to Kazemi’s conspiratorial, persecutory beliefs.
In the first case, Rodas, the Supreme Court found the trial court’s refusal to declare a doubt was error, but under different circumstances than presented here. (Rodas, supra, 6 Cal.5th at p. 232.) The defendant there had been previously confined under a mental health conservatorship and found incompetent at two previous criminal proceedings and at the outset of the current proceeding. (Id. at p. 224.) The defendant had been deemed incompetent in the current proceeding because of schizophrenia causing delusional beliefs, fragmented thought processes, and rambling speech consisting of nonsensical “word salad.” (Id. at pp. 224, 232.) He was only restored to competency through involuntary medication. (Id. at pp. 225–226, 237.) And, said the reports on this defendant, only involuntary medication would maintain his competency. (Id. at pp. 226, 237.) When the trial court later learned the defendant had stopped taking his medication and was again speaking to his counsel in “word salad,” there was pivotal evidence of changed circumstances that required declaration of a new doubt. (Id. at pp. 232, 235.)
On the other hand, Kazemi’s mental health division evaluation found him competent. Kazemi did not need to be restored to competency like the Rodas defendant, and he did not abandon a treatment necessary to maintaining his competency.
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Nor did Kazemi share the Rodas defendant’s most troubling symptoms. The Rodas defendant’s speech, when compromised, was unintelligible and of no assistance to counsel. (Cf. People v. Easter (2019) 34 Cal.App.5th 226, 243 [newly developed “word salad” manner of speech can denote incompetence].) Kazemi did not exhibit this behavior; rather, he could communicate with counsel and the court and could convey his version of events at trial.
Reliance on People v. Tejeda (2019) 40 Cal.App.5th 785 is similarly misplaced. There, the defendant was found incompetent twice during the proceedings due to delusions that the government controlled his brain. (Id. at pp. 788–790.) He had been restored to competence based on his perceived ability to compartmentalize that delusion from his defense. (Id. at p. 787.) He then testified at trial about that very delusion. This presented the same issue as Rodas: the trial court had evidence that the basis for his restoration to competency no longer held, and the appellate court found it was error not to declare another doubt. (Id. at p. 791.) Here, again, Kazemi was found competent, and there was no crucial guarantor of competency that suddenly disappeared.
Nor is People v. Leelu (2019) 42 Cal.App.5th 1023 instructive. The appellate court there found no prejudicial error in failing to appoint a second mental health expert, pursuant to section 1369, after the defendant was found incompetent and committed to a state hospital. (Id. at p. 1026.) Any error was harmless because of the “overwhelming evidence” defendant was incompetent, including that she was irrational, incoherent, not understandable in conversation, unable to perceive others’ meaning, and claimed her attorney was the Canadian Senior
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Minister of the Interior and the parties involved in the case had harassed her. (Id. at pp. 1026, 1032.) The court had no occasion to discuss the showing necessary to merit a second competency hearing.
In sum, counsel’s proffers were insufficient to require a second competency hearing. (Bertsch, supra, 19 Cal.5th at p. 235.)
DISPOSITION
We affirm the judgment.
SCHERB, J.
We Concur:
STRATTON, P. J.
VIRAMONTES, J.