P. v. Ruth

Filed 8/28/19 P. v. Ruth CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENDRICK JAMAR RUTH,
Defendant and Appellant.
B289124
(Los Angeles County
Super. Ct. No. NA105943)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Conditionally reversed
in part and remanded with directions.
Renee Rich and James M. Crawford, under appointment by
the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 18 --

2
I. INTRODUCTION
A jury convicted defendant and appellant Kendrick Jamar
Ruth of elder adult abuse likely to produce great bodily harm or
death (Pen. Code, § 368, subd. (b)(1))1 and found that his victim
was 70 years of age or older and suffered great bodily injury
(§ 368, subd. (b)(2)(B)). The jury further found that defendant
suffered a prior conviction charged as a serious and/or violent
felony under the Three Strikes law (§§ 667, subd. (d); 1170.12,
subd. (b)) and as a serious felony (§ 667, subd. (a)(1)) and that he
served two prior prison terms (§ 667.5, subd. (b)). The trial court
sentenced defendant to state prison for 16 years.
On appeal, defendant contends the trial court erred in
declining to hold a second competency hearing; remand is
necessary to allow the court to exercise its discretion to strike his
section 667, subdivision (a)(1) enhancement; remand is necessary
to allow the court to determine whether he would benefit from
mental health diversion under section 1001.36; clerical errors
must be corrected; and remand is necessary so the court can
determine defendant’s ability to pay fines and assessments
pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas). We conditionally reverse defendant’s elder abuse
conviction and remand for a hearing to determine his eligibility
for a mental health diversion program pursuant to section
1001.36. Depending on the trial court’s resolution of that issue,
the trial court is also to consider whether to exercise its section
1385 discretion to strike defendant’s section 667, subdivision
1 All statutory citations are to the Penal Code unless
otherwise noted.

-- 2 of 18 --

3
(a)(1) enhancement and is to correct the clerical errors in the
abstract of judgment.
II. BACKGROUND
At the time of his testimony on October 18, 2017, Luis
Perez was 83 years old. On February 28, 2017, he was walking
on the sidewalk along Willow Street in Long Beach when
defendant walked about 10 or 15 steps past him. Defendant then
turned around, approached Perez, and punched him in the head.
The blow knocked Perez unconscious and he fell into the street.
Jesus Manrique, who witnessed defendant strike Perez, ran
across the street to help Perez. Manrique and another person
picked up Perez and moved him from the street. Andrew
Williams, who also saw defendant strike Perez, also went to
Perez’s aid. Perez regained consciousness and was taken to the
hospital. He experienced a lot of pain and had swelling on the
top of his head. He was released from the hospital later that day.
III. DISCUSSION
A. Competency Hearing
Defendant contends the trial court abused its discretion
when it declined to hold a second competency hearing. We
disagree.

-- 3 of 18 --

4
1. Background
On March 10, 2017, prior to trial, defense counsel declared
a doubt about defendant’s mental competence to stand trial
pursuant to section 1368. The trial court suspended proceedings.
On April 3, 2017, the mental health court appointed Dr.
Phani Tumu, pursuant to Evidence Code section 730, to examine
defendant and prepare a report on defendant’s mental status.
Dr. Tumu interviewed defendant at the Twin Towers
Correctional Facility on April 22, 2017, and prepared a report
dated May 3, 2017, that he submitted to the mental health
court.2
In the interview, defendant gave his correct age and date of
birth to Dr. Tumu. Defendant said that he was not prescribed
medications and had not taken them in the past. He denied
having been previously psychiatrically hospitalized—he was
housed on the psychiatric floor because his lawyer requested it—
or having any psychiatric symptoms. He also denied using
alcohol and/or illicit substances, although his legal history
suggested otherwise.
Defendant told Dr. Tumu that he was “‘accused of hitting
someone.’” He had gone to the Long Beach court where he was
told the charge was a misdemeanor. He pleaded not guilty and
said he would take his case to trial as necessary. Defendant
reported that a witness had told the police that defendant was
not the perpetrator. Defendant would not consider a plea
agreement because he “‘didn’t do anything.’” Defendant told Dr.
2 We granted the Attorney General’s request to take judicial
notice of the mental health court’s case file in case number
ZM035942 which contains Dr. Tumu’s report.

-- 4 of 18 --

5
Tumu that he would work with his public defender and described
work the attorney was performing on his behalf.
In the “Mental Status Exam” section of his report, Dr.
Tumu found: “No abnormal movements were noted; he made
good eye contact. He was awake, alert and oriented. The
defendant was calm and pleasant; he did not appear distracted by
internal preoccupation. [His] speech was of a normal rate,
spontaneous, with a normal latency to response. He was linear
and goal-directed in his thought process. The defendant did not
endorse auditory/visual hallucination and paranoid/grandiose
delusions were not elicited. His mood was euthymic and his
affect was constricted. His insight and judgment were impaired.
His memory and concentration were intact.”
In the “Presence (or Lack) of Mental Illness” section of his
report, Dr. Tumu opined that defendant “more likely, than not,
suffers from a substance use disorder.” He noted defendant had
been arrested for driving under the influence, possession of
phencyclidine, public intoxication, possession of a narcotic
substance, and possession of marijuana while driving.
Dr. Tumu stated that the use of alcohol can cause poor
judgment and disinhibition and the use of stimulants can cause
symptoms similar to a manic phase of Bipolar disorder.
Methamphetamine use can cause psychotic symptoms like
auditory hallucinations and paranoia. Phencyclidine use can
cause significant maladaptive behavioral changes including
belligerence, “assaultiveness,” impulsivity, and/or impaired
judgment. During the interview, defendant did not present with
paranoid delusions or other psychotic symptoms like thought
disorganization.

-- 5 of 18 --

6
Dr. Tumu noted that defendant did not have a psychiatric
history that pointed to a primary psychotic disorder. He
concluded, “I am not convinced [defendant] suffers from a
primary psychotic disorder because of his history of illicit
substance use and lack of objective signs of a psychotic disorder
during the interview.”
In the “Competency to Stand Trial” section of his report,
Dr. Tumu opined that defendant was competent to stand trial.
Defendant understood the various courtroom personnel and their
roles and the courtroom procedures. He knew there was a
witness who might testify against him, but told Dr. Tumu that
that witness (the alleged victim) had not identified him as the
assailant. Defendant was unaware if there was any evidence in
the case, but aware that any evidence and/or witnesses could be
used against him if he went to trial. Defendant did not know the
potential period of incarceration he faced if convicted, but
insisted that he was not the assailant.
Dr. Tumu opined that defendant was not suffering from
psychiatric symptoms that were inhibiting his decision-making
process regarding “his current legal predicament.” Defendant
had the ability to rationally assist his attorney in this case. He
was not suffering from psychotic symptoms such as thought
disorganization or paranoia and was able to provide a linear
history of himself. Defendant did not exhibit any symptoms of a
psychiatric illness that would stop him from moving forward with
this case or from working with his attorney. Dr. Tumu found
that defendant’s denial about the allegations in this case, in and
of itself, was not due to psychosis.
On May 31, 2017, the mental health court found defendant
mentally competent to stand trial. Defendant’s bifurcated trial

-- 6 of 18 --

7
began on October 17, 2017, and the jury rendered its guilty
verdict on October 19, 2017.
Defendant was then tried on the prior conviction
allegations. After the prosecution presented its case, defendant
stated that he wanted to testify. The trial court asked defense
counsel if he wanted to ask defendant questions or have him
testify “in the narrative.” Defense counsel opted for narrative
testimony.
Testifying about an alleged driving under the influence of
alcohol conviction, defendant said that he won $140 million in
2008 in the Super Lotto, but his family got together and took it
from him. Defendant explained that his grandmother, who “was
Chinese at the time,” was the cashier who sold him the winning
ticket.
Defendant’s mother and father worked for the Long Beach
Police Department and his “whole family” worked for the sheriff’s
department. They conspired with defendant’s girlfriend to set
him up for driving under the influence and succeeded in putting
him in prison for two years. His family was trying to take his
inheritance because he was the only survivor in the family.
When defendant was released from prison, his grandfather and
his uncle married defendant’s wife “as one guy.”
The trial court then asked defendant to address the other
alleged prior conviction—an assault conviction. Defendant
testified that “they” obtained an $800 million loan in 2008 of
which they owed him 68 percent. Also, he just won $239 million
in Mega Millions. He testified that Snoop Dogg was his father,
Halle Berry was his mother, and Michael Jackson was his
“military mother.”

-- 7 of 18 --

8
As to “this case,” defendant testified that when he was at
the hospital, “they” asked if he “wanted to do the doctor’s time
who killed Michael Jackson,” but he declined. He added, “As of
’09, Michael Jackson was 53 years old. That’s my— [¶] . . . [¶]
—case number. That’s my—that’s my—my booking number—
[¶] . . . [¶] —for that case.” Defendant said, “It was a set up.”
The jury found true the prior conviction allegations. The
trial court set defendant’s sentencing hearing for
November 16, 2017.
At the sentencing hearing, defense counsel declared a doubt
as to defendant’s competence based on defendant’s testimony at
the prior convictions trial and defendant’s statements in
subsequent telephone conversations with defense counsel. The
trial court then had the following conversation with defendant:
“The Court: Let’s just ask. Mr. Ruth, do you know what’s
going on today? Do you know what you’re here for today.
“The Defendant: I think so.
“The Court: What is it?
“The Defendant: To finish the case.
“The Court: To finish the case. And by ‘finish the case,’ are
you aware that the jury found you guilty on the case?
“The Defendant: I didn’t hear all the—
“The Court: Are you aware that the jury found you guilty?
“The Defendant: I didn’t hear all the—all the answers—I
mean, all the decisions. I didn’t hear all of them.
“The Court: You were here for court when they announced
guilty, and then you were found guilty on the priors.
“The Defendant: They didn’t let me testify.

-- 8 of 18 --

9
“The Court: No. I did let you testify. I just stopped you in
the middle of your testimony because you weren’t testifying to
some of the things that needed to go on.
“The Defendant: That was after—after the case.
“The Court: After the trial.
“The Defendant: I never got a chance to testify, and my
witness didn’t get a chance to testify either.
“The Court: That was an option that was offered up, and
you chose not to testify at the time.
“The Defendant: No, I didn’t. I didn’t—I never got offered
that.
“The Court: Yes, you did. I was here in court when it
happened.
“The Defendant: I never got that offer.”
The trial court asked defense counsel to approach for an ex
parte discussion. At the conclusion of that discussion, the trial
court stated that it was not prepared to declare a doubt, but was
willing to continue the sentencing hearing to allow defense
counsel “to order a psych report and have a doctor interview
him.” Defense counsel responded, “Perfect.” After continuing the
sentencing hearing to December 13, 2017, the trial court told
defense counsel, “Fill out your medical order and he can be,
evaluated by a doctor.”
On defendant’s request, the sentencing hearing was
continued twice—once expressly to allow time to “gather[] mental
health records in preparation for a motion for a new trial”—and
held on March 29, 2018. At the sentencing hearing, defense
counsel made an oral motion for a new trial asserting that
defendant was not competent to stand trial as defendant stopped
taking his psychotropic drugs causing him to decompensate

-- 9 of 18 --

10
throughout the course of trial. Among other things, defense
counsel referred to defendant’s statements about Michael
Jackson, Halle Berry, and winning the lottery. Defense counsel
did not present any mental health reports. The trial court denied
the motion for a new trial.
2. Analysis
“A defendant who is mentally incompetent cannot be tried
or adjudged to punishment. (§ 1367, subd. (a); Pate v. Robinson
(1966) 383 U.S. 375, 378 . . . .) A defendant is mentally
incompetent to stand trial if, as a result of mental disorder or
developmental disability, the defendant is ‘unable to understand
the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.’ (§ 1367, subd. (a).)
The defendant has the burden of proving incompetency by a
preponderance of the evidence. (§ 1369, subd. (f); People v.
Medina (1990) 51 Cal.3d 870, 881-886 . . . .)” (People v. Marshall
(1997) 15 Cal.4th 1, 31 (Marshall).)
“When, as here, a competency hearing has already been
held and the defendant was found to be competent to stand trial,
a trial court is not required to conduct a second competency
hearing unless ‘it “is presented with a substantial change of
circumstances or with new evidence”’ that gives rise to a ‘serious
doubt’ about the validity of the competency finding. [Citation.]
More is required than just bizarre actions or statements by the
defendant to raise a doubt of competency. [Citations.] In
addition, a reviewing court generally gives great deference to a
trial court’s decision whether to hold a competency hearing. As
we have said: ‘“An appellate court is in no position to appraise a

-- 10 of 18 --

11
defendant’s conduct in the trial court as indicating insanity, a
calculated attempt to feign insanity and delay the proceedings, or
sheer temper.”’ [Citations.]” (Marshall, supra, 15 Cal.4th at
p. 33.)
In Marshall, supra, 15 Cal.4th 1, the trial court held two
hearings to determine the defendant’s competency to stand trial.
In the first hearing, a psychoanalyst opined that the defendant
was not competent. The trial court ruled that the defendant
failed to meet his burden of proving incompetence. (Id. at p. 29.)
In the second hearing, the defense and prosecution presented
competing witnesses on the defendant’s competency. The jury
found the defendant mentally competent to stand trial. (Id. at
pp. 30-31.)
On appeal, the defendant argued the Supreme Court
should reverse his conviction because the trial court did not, sua
sponte, make a renewed inquiry into his mental competency
during and after the trial after he made statements that raised
reasonable doubts about his mental competency. (Marshall,
supra, 15 Cal.4th at p. 32.) The defendant supported his
argument with “certain unusual statements he made before jury
selection about his having large amounts of money and being
born in Spain; statements he made to the probation officer to the
effect that he was a god, that the President and Governor were
conspiring against him, and that the conspirators would be
beheaded; and statements he made after trial about attorneys
and other trial participants previously involved in his life, about
the court’s loss of its budget, and about himself being the victim
of entrapment.” (Id. at p. 33.)
The Supreme Court held that it could not say, as a matter
of law, that the defendant’s statements were a “‘substantial

-- 11 of 18 --

12
change of circumstances’” that required the trial court to hold a
second competency hearing. (Marshall, supra, 15 Cal.4th. at
p. 33.) It noted that a defendant’s bizarre statements, standing
alone, are not sufficient. (Ibid.) Accordingly, it concluded, the
trial court did not abuse its discretion when it determined that
the defendant’s statements did not establish a substantial change
of circumstances. (Ibid.)
Here, the trial court implicitly ruled that defendant’s
bizarre statements about, among other things, his lottery
winnings, his family’s conspiracy to imprison him to take his
money, and his parentage did not establish a substantial change
of circumstances or new evidence that gave rise to a serious doubt
about the prior finding of defendant’s competence. The trial court
did not abuse its discretion. (Marshall, supra, 15 Cal.4th at
p. 33.)
B. Remand to Allow the Trial Court to Exercise Its Section
1385 Discretion to Strike Defendant’s Section 667,
Subdivision (a)(1) Enhancement
Senate Bill No. 1393, which became effective on
January 1, 2019, amended sections 667 and 1385 to give the trial
court discretion to strike five-year sentence enhancements under
section 667, subdivision (a) in furtherance of justice. Defendant
contends that in light of Senate Bill No. 1393 we should remand
this matter to the trial court to allow it to decide whether to
strike his section 667, subdivision (a) enhancement. The
Attorney General agrees as do we.

-- 12 of 18 --

13
C. Pretrial Diversion Hearing
Defendant contends that he is entitled to a hearing on
mental health diversion under recently enacted section 1001.36
because the Legislature intended the statute to apply
retroactively. The Attorney General counters that the language
of subdivisions (a), (b), and (c) of section 1001.36 demonstrates
that the Legislature intended the enactment to operate
prospectively, i.e., the enactment would not apply to cases such
as this one in which there has already been an adjudication.
Our Supreme Court has granted review to decide whether
section 1001.36 applies retroactively. (People v. Frahs (2018) 27
Cal.App.5th 784, review granted in S252220 (Dec. 27, 2018)
(Frahs).3) Because our Supreme Court will soon have the final
word, we will keep our discussion brief. We agree with the
outcome in Frahs, and as in Frahs, defendant’s case is not yet
final on appeal and the record affirmatively discloses that he
appears to meet at least one of section 1001.36’s threshold
eligibility requirements. We will therefore remand to allow the
trial court to determine whether defendant should benefit from
diversion under section 1001.36. (Frahs, supra, 27 Cal.App.5th
at p. 791.)
3 See Cal. Rules of Court, rule 8.1115(e)(1) [“Pending review
and filing of the Supreme Court’s opinion, unless otherwise
ordered by the Supreme Court . . . , a published opinion of a
Court of Appeal in the matter has no binding or precedential
effect, and may be cited for potentially persuasive value only”].)

-- 13 of 18 --

14
D. Clerical Errors
Defendant asserts that the abstract of judgment must be
modified because it inaccurately states that he was convicted by
plea and lists an incorrect date of conviction. Further, he
contends, the abstract of judgment and sentencing minute order
must be corrected to reflect that he received a five-year sentence
enhancement under section 368, subdivision (b)(2)(B),4 rather
than section 12022.7, subdivision (c), as he was neither charged
with nor convicted of violating section 12022.7, subdivision (c).
The Attorney General agrees the abstract of judgment should be
modified to reflect that defendant was convicted by a jury and the
correct date of conviction, but disagrees that defendant was not
convicted of violating section 12022.7, subdivision (c).
The abstract of judgment states that defendant was
convicted by plea on March 29, 2018. Instead, he was convicted
by a jury on October 19, 2017. We order the abstract of judgment
modified to correct these errors. (People v. Mitchell (2001) 26
Cal.4th 181, 185 (Mitchell).)
The sentencing minute order and abstract of judgment
state that the trial court imposed a five-year sentence
enhancement under section 12022.7, subdivision (c). The
amended information charged defendant with violating section
368, subdivision (b)(2) and section 12022.7, subdivision (a). It did
not contain an allegation under section 12022.7, subdivision (c).
4 Section 368, subdivision (b)(2)(B) provides for a five-year
sentencing enhancement if the “victim suffer[ed] great bodily
injury, as defined in Section 12022.7” and the victim is 70 years
of age or older.

-- 14 of 18 --

15
Section 368, subdivision (b)(2)(B) focuses on the victim of
elder abuse—whether the “victim suffer[ed] great bodily injury.”
Section 12022.7, subdivision (c) focuses on the perpetrator of
elder abuse—whether the perpetrator “personally inflict[ed] great
bodily injury.” The verdict form the trial court provided to the
jury tracked the language in section 368, subdivision (b)(2)(B),
asking it to find whether Perez was “70 years and older” and
“suffer[ed] great bodily injury.” The jury was not asked to decide
whether defendant “personally inflict[ed] great bodily injury.”
Accordingly, we order the sentencing minute order and abstract
of judgment modified to reflect that defendant was sentenced to a
five-year term under section 368, subdivision (b)(2)(B) and not
section 12022.7, subdivision (c). (Mitchell, supra, 26 Cal.4th at
p. 185.)
E. Ability to Pay Fine and Assessments
At defendant’s sentencing hearing, the trial court imposed
a $300 victim restitution fine (§ 1202.4, subd. (b)), a $30 criminal
conviction assessment (Gov. Code, § 70373, subd. (a)), and a $40
court operations assessment (§ 1465.8, subd. (a)(1)). Defendant
did not request a hearing to determine whether he was able to
pay that fine and those assessments.
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant
contends the trial court erred in ordering him to pay a restitution
fund fine and criminal conviction and court operations
assessments without conducting a hearing on his ability to pay
that fine and those assessments. He contends that we should
remand so that the trial court can hold such a hearing. The
Attorney General argues, among other things, that defendant has

-- 15 of 18 --

16
forfeited this issue by failing to object to the imposition of the fine
and assessments without an ability to pay hearing.
“Ordinarily, a criminal defendant who does not challenge
an assertedly erroneous ruling of the trial court in that court has
forfeited his or her right to raise the claim on appeal.” (In re
Sheena K. (2007) 40 Cal.4th 875, 880.) This forfeiture doctrine
applies where a defendant fails to object to the imposition of fines
and fees at sentencing. (See, e.g., People v. Aguilar (2015) 60
Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.)
The record demonstrates that defendant is able to work.
Although defendant was unemployed when the probation report
was prepared, the report indicates a varied and apparently
significant work history that includes: “computer network,
computer technician, customer service, home business, laborer,
network technician, office worker, phone sales, power technician;
and service clerk.” Further, defendant has been sentenced to 16
years in state prison, a term that should allow him to earn
sufficient wages to satisfy his fine and assessments. Based on
these particular facts, any error in failing to hold an ability to pay
hearing was harmless beyond a reasonable doubt. (People v.
Johnson (2019) 35 Cal.App.5th 134, 139-140.)

-- 16 of 18 --

17
IV. DISPOSITION
The judgment is conditionally reversed and the matter is
remanded to the trial court with directions to, within 90 days
from the remittitur, conduct a diversion eligibility hearing under
section 1001.36. If the trial court determines that defendant is
not eligible for diversion, then the court shall reinstate the
judgment.
If the trial court determines that defendant is eligible for
diversion but, in exercising its discretion, the court further
determines diversion is not appropriate under the circumstances,
then the court shall reinstate the judgment.
If the trial court determines that defendant is eligible for
diversion and, in exercising its discretion, the court further
determines diversion is appropriate under the circumstances,
then the court may grant diversion. If defendant successfully
completes diversion, the court shall dismiss the charge in
accordance with section 1001.36, subdivision (e). If, however,
defendant does not successfully complete diversion, the trial court
shall reinstate the judgment.
If the trial court determines that defendant is not eligible
for diversion or is eligible but that diversion is not appropriate
under the circumstances and reinstates the judgment or if the
trial court grants diversion but defendant does not successfully
complete diversion, then it is to consider whether to exercise its

-- 17 of 18 --

18
discretion to strike defendant’s section 667, subdivision (a)(1)
enhancement under section 1385 and it is to modify the abstract
of judgment as set forth above.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.

-- 18 of 18 --