Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC117150
RUSHING, P.J.
Statement of the Case
The Santa Clara County District Attorney charged defendant Timphony Orlando Walker with robbery and petty theft with a prior conviction and further alleged that he had two prior strike convictions. (Pen. Code, §§ 211-2312.5, subd. (c), 666, 667, subds. (b)-(i).) Defendant pleaded not guilty and not guilty by reason of insanity. After the guilt phase of the trial, the jury convicted defendant of the two offenses. After the sanity phase, the jury found defendant not guilty by reason of insanity. After a court trial, the court found the prior conviction allegation true. At sentencing, the court committed defendant to the California Department of Mental Health for a maximum period of 25 years to life plus a consecutive 16-year term. (§1026.)
All unspecified statutory references are to the Penal Code.
Before trial, the court granted the prosecutor’s motion to dismiss one of the strike allegations.
On appeal from the judgment, defendant claims the court abused its discretion in denying his request for a continuance.
We reverse the judgment.
The Crimes
On July 21, 2001, around 10:20 p.m., Michael Neider, the manager of a San Jose supermarket, observed defendant put some packages of meat and a bottle of beer into his handbasket and then walk toward the front door. Thinking defendant was about to leave without paying, Neider grabbed the handbasket and asked, “You’re not planning on going out the door with this, are you?” Defendant put the basket down, became agitated. He yelled at Neider for three or four minutes, berating Neider for considering him a thief. Then, he said, “I’m going to pick this basket up and I’m going to leave the store and you’re not going to stop me.” Defendant reached behind his back as if to grab something, picked up the basket, backed out of the store, and as he did, he threatened to “do” Neider if he tried to stop him. When defendant cleared the threshold, Neider and another employee tackled him and held him until police arrived.
San Jose Police Officer Isidro Bagon interviewed Neider after the incident. Neider said that defendant had threatened him, saying “[h]ey, mother fucker. If you don’t get out of my way, I’ll blow you up.”
The Request for a Continuance
The felony complaint was filed on July 25, 2001, but the proceedings were suspended until October 2002 because defendant was declared incompetent. At some point, defendant regained competency, and defendant pleaded not guilty and not guilty by reason of insanity. The court ordered psychological examinations of defendant. (§1027.) Two examiners opined that defendant was insane at the time of the incident and recommended an MRI to determine whether a traumatic brain injury in 1999 had caused organic brain damage. The matter was continued until August 2003. In November 2003, the court again declared defendant not competent to stand trial. Proceedings were suspended, and defendant was committed to the Department of Mental Health. (§1370.)
In April 2004, defendant was again found competent, and proceedings recommenced. On October 14, 2004, at a hearing on pretrial motions, defense counsel said she was not ready for trial. She explained that on October 17, 2004, she was scheduled to move from the public defender’s office to the alternative defender’s office and had both personal and professional scheduling conflicts over the next two weeks that would prevent adequately preparing for trial. In particular, counsel said there was a death in her family, and the funeral had not yet been scheduled. She also noted that she had just finished trying a month-long homicide case, she was identified as counsel in four other homicides, and she had been involved in numerous other cases during the last two months. She opined that she could not give proper attention to defendant’s case until after the move to a new office.
Despite this, she had been working on the case. She noted that the doctors who had examined and treated defendant in the past had previously been subpoenaed to testify about defendant’s mental illness and the effects of his traumatic brain injury. However, while the proceedings had been suspended, San Jose Medical Center where defendant had been treated had closed, the doctors had moved on to other hospitals or into private practice, and she had not been able arrange to meet and prepare them for trial. Counsel said that the case was set for trial over her objection. Since then, she had been trying to call the doctors and get their schedules but so far had been able to speak to only one—Doctor Craig Job—who said he would check his schedule and call her back that afternoon. She understood that he was not available on Tuesdays, Thursdays, and Fridays. However, she still had not heard from him.
Counsel pointed out that defendant faced two life sentences and sought continuance for a week to get her psychological experts in order and thereby preserve defendant’s rights. She opined that it would be ineffective assistance for her to start the case.
The court expressed concern that the case had been delayed for so long and asked whether counsel could stay at the public defender’s office until after this case. Counsel assumed that she could. The court continued the case for six days until the following Thursday, October 20, 2004.
On that day, however, counsel attended the family funeral in Sacramento. She returned on Friday, October 21, 2004, and appeared in court later that morning. Counsel reported that the previous weekend, she had had to vacate her office because of a conflict between her and the public defender in two multiple-defendant homicide cases. She was currently without an office at the alternative defender’s office and had an appointment to get formally processed, an office, and a key that afternoon. If she missed the appointment, she would have to reschedule it. Accordingly, counsel asked to be excused that afternoon to accomplish these tasks. The court agreed to break off proceedings at noon and recommence the following Monday, October 24.
Before the break, the prosecutor asked about defense mental health witnesses. Counsel said her lack of an office with voicemail and e-mail had made it difficult to communicate with the doctors. However, she had left messages. Three had returned her calls: Doctors Doug Johnson, Rudolph Cook, and Craig Job. She had not had a chance to call them back. The court then commenced jury selection, informing prospective jurors that deliberations would probably begin on November 10, 2004. Jury selection continued the following Monday, October 24, but at that time, the court predicted that deliberations would not begin until around November 18.
On Tuesday, October 25, 2004, counsel said that she still had scheduling problems with her witnesses. She had been in court every day and had played “phone tag” with them. Moreover, one of them—Doctor Cook—said he would be out of town until November 7 and had not responded to her e-mails. In all, she was still unprepared and could not guarantee that she would have her witnesses ready when it was time for the defense to present its case. Counsel reiterated that she had been in court almost constantly for the previous two months and had office difficulties but was doing the best she could under the circumstances. Arguing that defendant’s constitutional rights must prevail over the issue of convenience, counsel asked the court to put the case back on standby and excuse the jury.
The prosecutor objected and faulted counsel for not subpoenaing her witnesses. He argued that the guilt phase should proceed but was agreeable to accommodate counsel before the sanity phase began.
The court noted that counsel had been involved in the case since 2001 and knew since October 7, 2004, that the case had been assigned for trial. Assuming that counsel had not subpoenaed the prospective witnesses, the court denied counsel’s request. It then called the jurors back and completed the selection process. After a recess, counsel informed the court that she had returned to her office and unpacked a box related to defendant’s case and discovered that the witnesses had been subpoenaed in August 2004 and thereafter been on telephone standby. However, the case was then continued, the hospital where the witnesses had worked had closed, and they had moved, all of which complicated efforts to communicate with them. The court noted her comments for the record.
Trial commenced immediately. The prosecution called two witnesses and then rested. The court dismissed the jury until Thursday, October 27, 2004, in order to rule on the admissibility and the scope of testimony by the defense witnesses. On Wednesday, October 26, defense counsel explained that she intended to introduce evidence of mental disease or defect because it was relevant in determining whether defendant formed the requisite specific intent for each crime. She then made offers of proof concerning three witnesses. Doctor Craig Job would testify that he examined defendant in 1999 after he had been beaten and determined that defendant suffered traumatic brain injury that caused a psychotic disorder, cognitive impairment, and hallucinations. He would also explain the various medication that defendant was taking because of his condition, their effect on his body chemistry and physical mobility, and the consequences of not taking them. Doctor Doug Johnson would explain his subsequent diagnosis of defendant, his determination that he needed treatment, and his recommendation for a placement in a state hospital. Doctor Rudolph Cook would testify that that defendant still had disorders resulting from his traumatic brain injury and also suffered hallucinations and possibly schizophrenia.
The court ruled that with a proper foundation it would allow Doctor Job to testify. The prosecutor then requested an Evidence Code section 402 hearing. Defense counsel said she had met with Doctor Job at his office that morning. She explained that he was in private practice and had patients scheduled for the next two days, Thursday and Friday, October 27 and 28, 2004. She said that she told him she was not sure the court would allow him to testify but would call that evening or the next day to schedule his testimony. Under the circumstances, counsel asked the court to postpone the “402” hearing until Monday morning, October 31. He could then testify that afternoon or the following Monday. Counsel stated that Doctor Job would be defendant’s only witness at the guilt phase.
The court continued the “402” hearing only until the next morning, Thursday, October 27, 2004, and directed counsel to call Doctor Job and tell him to be present and ready at that time. The court further found that counsel had not established good cause for any further delay. Defense counsel objected, saying that she had never announced her readiness to proceed to trial and due to her lack of an office and support staff, she had been forced to rely on her cell phone and use her car as an office. As a result, she said that defendant was being deprived of effective representation. However, the court declined to change its ruling.
The next morning, Thursday October 27, 2004, defense counsel said that she had spoken to Doctor Job’s receptionist and left a voicemail message with his answering service but had not been able to speak to him directly. She said that she was not prepared to call any witnesses and asked the court to continue the “402” hearing and trial until Monday, November 7, when she felt Doctor Job could be present. She opined that the case could be submitted by November 8 and expected that the jury could reach a verdict by November 10, which would still allow time for the sanity phase and allow the jury to commence deliberations within the trial court’s estimate. She said that Doctor Job would be her only witness.
The prosecutor objected to a continuance, and the court denied the request. After the parties and court discussed instructions, the court recalled the jury and asked whether defense counsel had any witnesses. She said none were available, and the matter proceeded to closing argument. On October 28, 2004, the jury reached a guilty verdict.
The sanity phase began on Monday, November 7, 2004. Doctors Job, Johnson, and Cook all testified.
Doctor Job testified that in 2000, he treated defendant for seizures. At the time, defendant complained of “a severe altered level of consciousness.” Doctor Job learned that in 1999, defendant had suffered a severe head injury during an assault and had been diagnosed as “cognitively impaired,” which meant that he was not “thinking right.”
At the time he treated defendant, defendant was taking antipsychotic medication to control hallucinations and delusions and help him “better process reality.” The medication is used to treat schizophrenia, and Doctor Job opined that defendant was schizophrenic in 2000 and had stopped taking his medication, which had allowed his psychotic symptoms to reappear. Defendant had also been prescribed numerous other medications for anxiety, seizures, neurological brain disorders, and psychosis, but at the time, Doctor Job did not know whether defendant had stopped taking those medications.
After examining defendant, Doctor Job recommended a rehabilitative placement because defendant was disoriented; suffered from a brain disorder that included dementia, delirium, altered consciousness, and psychosis; and could not take care of himself. He opined that without treatment, defendant’s prognosis was poor, and he would most likely get in trouble with the law.
Doctor Johnson testified that in 2002, he evaluated defendant. He found no evidence to contradict a finding of dementia due to brain injury and recommended a commitment to the Department of Mental Health for treatment in a competency program.
Doctor Cook evaluated defendant in 2003. He agreed that defendant suffered from dementia due to a brain injury and experienced hallucinations that affected his actions and choices. He opined that defendant was experiencing hallucinations during the incident at the supermarket.
Doctor Ubaldo Sanchez testified for the prosecution. He evaluated defendant in 2004. At that time, defendant said that he took the groceries because he was hungry. He did not remember threatening Neider. When he asked defendant whether stealing was against the law, defendant replied, “You are hungry. Like here, they say I am mean. They have me all wrapped up like gorilla.” Doctor Sanchez opined that defendant could distinguish between right and wrong when he took the groceries.
The jury found that defendant was legally insane at the time of the charged offenses.
Discussion
As noted, defendant contends the court erred in declining to continue the guilt phase trial until he could secure the attendance of his sole witness.
A trial court has broad discretion concerning whether there is good cause for a continuance. (People v. Roldan (2005) 35 Cal.4th 646, 670.) To establish good cause for a continuance to secure the attendance of a witness, the defendant must show that he exercised due diligence to secure the witness’s attendance, the witness’s expected testimony would be material and not cumulative—i.e., the facts to which the witness would testify to could not otherwise be proven—and the witness could be obtained within a reasonable time. (People v. Howard (1992) 1 Cal.4th 1132, 1171.) In exercising its discretion, the court should consider “ ‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 972.)
Where, as here, a criminal defendant seeks a continuance, a court may not exercise its discretion in such a way as to deprive the defendant of fundamental rights, such as the right to prepare and present a defense, the right to counsel, and the right to effective assistance. (People v. Fontana (1982) 139 Cal.App.3d 326, 333 (Fontana); see People v. Roldan, supra, 35 Cal.4th at p. 670; People v. Maddox (1967) 67 Cal.2d 647, 652; Hughes v. Superior Court (1980) 106 Cal.App.3d 1, 4.)
On appeal, the moving party bears the burden of establishing that denial of a continuance request was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) “A decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.” (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)
The undisputed evidence establishes good cause for a continuance.
Counsel’s efforts to secure the presence of Doctor Job and the circumstances surrounding those efforts demonstrated reasonable diligence. After defendant regained competence, counsel did not state or suggest that she was prepared for trial and objected when it was set. Later, she promptly told the trial court that she was not ready to proceed because, for a variety of reasons, she was unprepared. She explained that during the pertinent period leading up to the October 26, 2004, when the prosecution rested, she had labored under a heavy caseload and a month-long trial. She had had to vacate her office before being given access to a replacement. During that period, she lacked support equipment, communication capability, and staff support. There was also the death and funeral of a family member. For most of that time, she had been unable to confer with medical witnesses about the case and schedule their testimony. Although they previously had been subpoenaed and been on telephone standby, the case had been taken off calendar, the hospital where the witnesses worked had closed, and the witnesses had dispersed to other hospitals or private practice. Despite her constant court appearances during business hours during the work week and using her cell phone and car as an office, counsel had been forced to play “phone tag” with her witnesses. As of October 26, she had been able to directly talk to only Doctor Job, who, due to his patient schedule, would not be available until November 7.
Counsel had also learned indirectly that Doctor Cook would be unavailable until November 7.
Many of the circumstances that prevented counsel from preparing her case and securing her witnesses were beyond her control. Moreover, given those impediments, she diligently persisted and acted to protect defendant’s rights at all times. There is no evidence that she failed to make a good faith effort or sought a continuance solely for purposes of delay. Although in retrospect, she could have served Doctor Job with a subpoena when she met with him on Wednesday, October 26, 2004, her failure to do so does not by itself negate the reasonable diligence that she otherwise exhibited up to that time.
Next, the undisputed evidence shows that Doctor Job was a material witness. The defense hinged on showing that defendant lacked the specific intent due to his mental illness and brain injury. In her offer of proof, counsel told the court that Doctor Job would testify “not only about possible mental illness but also about the effects of a closed head traumatic brain injury . . . .” The court found that with a proper foundation, the proposed testimony would be relevant and admissible. Because the court disallowed the proposed testimony of Doctors Johnson and Cook, Doctor Job became defendant’s sole witness and the sine qua non of his defense. Moreover, his testimony would not be cumulative of any other witnesses, and because much of his testimony was based on his personal examination and diagnosis of defendant, his testimony could not be provided by any other witness.
The People argue that “[b]ased on counsel’s offer of proof, it does not appear that Dr. Job would have been qualified to testify as to whether appellant had the requisite intent when he took the groceries from the Save Mart Supermarket in July 2001.” However, counsel expressly offered the three witnesses for the purpose of helping the jury determine whether defendant formed the required specific intent. The court found Doctor Job was qualified to testify based on that offer of proof.
The People also argue that Doctor Job was not the only person who could have provided the sort of testimony the defense sought from him; “a friend or family member of appellant’s who had contact with him from the time of his injury until the instant offenses could testify as to appellant’s outward behavior and physical and mental limitations from which [he] could argue the necessary inferences.” However, this argument is based on speculation concerning the existence of equivalent witnesses and not on evidence of persons that defense counsel knew, or should have known, about, who could have testified. Moreover, as opposed to the testimony of a family member or friend, which would be subject to impeachment for bias, the testimony of a disinterested doctor would be entitled to greater weight. (See Skipper v. South Carolina (1986) 476 U.S. 1, 8 [testimony by disinterested witness naturally given more weight].)
Finally, counsel indicated that Doctor Job was generally available on Mondays and Wednesdays, and given his preexisting schedule, she could secure his testimony on November 7, 2004. Although that would have necessitated almost a two week continuance, such a delay does not appear unreasonable given the essential importance of Doctor Job’s testimony. Moreover, the court had already informed the jury that it might not begin deliberations until November 18. Thus, a continuance would not have lengthened the proceedings beyond the court’s original estimate.
Next, we focus on the benefit of a continuance versus the burden it may have caused. The benefit to defendant was obvious. That defendant committed the acts underlying the alleged offenses was undisputed. His only defense was to raise a reasonable doubt concerning the requisite mental state. As noted, at the sanity phase, Doctor Job said that before and at the time he committed the acts, defendant suffered from a traumatic brain injury that caused cognitive impairment, and he had been considered schizophrenic, and he was taking various medications to control hallucinations, delusions, and seizures. That testimony would have been significant and probative evidence to support an inference that defendant did not form the requisite mental state. Doctor Job had also opined that without treatment, defendant would probably have trouble with the law, a prediction that came true. Moreover, there was a reasonable likelihood that defendant would have benefited from Doctor Job’s testimony because defendant’s actions and comments during the incident—e.g., his sudden volatility and threat to blow Neider up—were not inconsistent with that of a person suffering from a mental disease or defect. Finally, we note that when the trial court ruled, it was aware that the proceedings had been suspended twice due to defendant’s incompetence.
Concerning the burden of a continuance, we note that no witnesses would have been inconvenienced because there were no other witnesses. We also can conceive of no potentially significant burden on or inconvenience to the prosecution. The jurors might have been inconvenienced by a delay until November 7, 2004. However, they had previously been told that deliberations might not start until as late as November 18. Thus, having a recess and remaining empanelled until November 7, was not a burden beyond what jurors had already come to expect.
In short, because the undisputed evidence of defendant’s mental illness and brain injury was relevant on the issue of specific intent and had great potential benefit to defendant and because the burden of a continuance, if any, was relatively minor, it is quite clear that granting a continuance would have accomplished, not defeated, substantial justice in this case. On the contrary, because the jury did not hear highly relevant and probative evidence and thus did not consider it in determining whether defendant formed the specific intent (see CALJIC No. 3.32), the denial of a continuance defeated the interests of justice during the guilt phase.This is especially so because defendant faced a life sentence, and, with the benefit of hindsight, we know that the jury found the evidence to be credible and convincing at the sanity phase.
Indeed, because Doctor Job’s testimony represented defendant’s sole defense, we find that the denial of a continuance did not simply defeat the interests of justice, it forced counsel to proceed when she was unprepared to do so and prevented defendant from presenting a defense in violation of his rights to effective assistance, due process, and a fair trial. (See Boddie v. Connecticut (1971) 401 U.S. 371, 377 [due process right to be heard]; United States v. Cronic (1984) 466 U.S. 648, 658 [right to effective assistance of counsel]; People v. Pope (1979) 23 Cal.3d 412, 424 [right to constitutionally effective assistance]; People v. Babbitt (1988) 45 Cal.3d 660, 684 [due process right to present all relevant evidence of significance].)
We understand the trial court’s concern that the case had been pending for so long and its frustration with counsel’s apparent inability to secure Doctor Job’s attendance, after it had initially accommodated counsel’s request for more time. However, counsel reasonably explained why she had still been unable to do so, and it was clear that without the proposed testimony, defendant would have no defense.
The California Supreme Court has warned “ ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.] For this reason, trial courts should accommodate such requests—when they are linked to an assertion of the right to retained counsel—‘to the fullest extent consistent with effective judicial administration.’ [Citation.]” (People v. Courts (1985) 37 Cal.3d 784, 791.)
Here the undisputed evidence established good cause, the balance between the benefit to defendant and the burden on the witnesses, prosecution, and jurors strongly weighed in favor of granting a continuance, and the denial of a continuance not only defeated substantial justice but also denied fundamental rights. Under the circumstances, we conclude that trial court’s insistence on expeditiousness concerning the guilt phase constituted an abuse of discretion.
We find support for our analysis and conclusion in People v. Buckley (1972) 23 Cal.App.3d 740, Fontana, supra, 139 Cal.App.3d 326, and Hughes v. Superior Court (1980) 106 Cal.App.3d 1 (Hughes).
In People v. Buckley, supra, 23 Cal.App.3d 740, the defendant was charged with unlawful possession of drugs. His only defense was that he had a prescription. However, the trial court barred the defendant from saying so. (Id. at pp. 742-743.) Surprised by the court’s ruling, defense counsel spoke to the prescribing doctor, who said he would be available to testify on a certain date. Counsel then asked for a continuance to that date, but the court denied the request. (Id. at p. 743.) On appeal, the court found that the denial was an abuse of discretion. The court noted that the witness had been clearly identified; his testimony was “not merely material, it was critical, and highly necessary, especially in view of the court’s insistence on excluding appellant’s own testimony on his sole defense”; and counsel had been diligent in securing his appearance at the soonest possible time. (Id. at p. 744.)
Here, Doctor Job was clearly identified, his testimony was necessary, counsel had been diligent in attempting secure his attendance, and she provided the court with a date certain.
In Fontana, supra, 139 Cal.App.3d 326, defense counsel was unprepared to proceed and requested a continuance. Counsel explained that due to the “difficult” case he was trying that week, and the homicide case he had tried the week before, he was unable to complete his investigation. He also had not reviewed documentary material or discussed it with the defendant. The trial court gave counsel a 45-minute recess to discuss the case with the defendant. Thereafter, counsel said he was still not ready to proceed. The court said it would bifurcate the hearing and receive only the victim’s testimony. However counsel said he was unprepared to cross-examine the victim without a continuance. The court then denied the request. Counsel then said he would have to forego cross-examination. (Id. at pp. 329-331.)
In finding an abuse of discretion, the reviewing court explained that a trial court may not exercise its discretion in a way that deprives the defendant of a reasonable opportunity to prepare his defense. “ ‘ “That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel.” [Citations.]” ’ [Citations.] Put plainly, when a denial of a continuance impairs the fundamental rights of an accused, the trial court abuses its discretion. [Citation.] By denying a continuance to allow counsel to become prepared in the instant case, appellant’s right to the effective assistance of counsel and his right to confront and cross-examine the sole adverse witness were denied . . . .” (Fontana, supra, 139 Cal.App.3d at pp. 334-335.)
In Hughes, supra, 106 Cal.App.3d 1, a public defender refused an order to participate in jury selection in one case because he had devoted his time to another case and as a result was not prepared to proceed. After denying his request for a continuance, the court held him in contempt for refusing to participate in the trial. In issuing a writ of prohibition, the appellate court explained that “[t]he trial court’s error was in finding that there was insufficient reason or excuse for petitioner’s refusal to obey the court’s order to proceed with trial. The sufficient reason was the protection of his client’s constitutional right to adequate representation at trial irrespective of the reason for inadequacy.” (Id. at p. 5.) Thus, Hughes established that “[t]o force an unprepared counsel to proceed to trial regardless of the reasons for the lack of preparedness would result in a violation of constitutional rights. ‘[I]t is a denial of the accused’s constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel.’ [Citations.] If counsel had obeyed the court’s order to proceed, his compliance would have denied his client a fair trial.” (Id. at p. 4.)
Here, as in Fontana and Hughes, counsel was unprepared to proceed without having secured the attendance of an essential witness, counsel presented valid reasons for a continuance, the continuance was clearly necessary to protect the defendant’s constitutional rights, and requiring counsel to proceed without the continuance resulted in the denial of those rights.
We turn now to the issue of prejudice. Having concluded that the denial of a continuance implicated defendant’s federal constitutional rights, we apply the standard for error established in Chapman v. California (1967) 386 U.S. 18, 24, under which we must reverse unless we conclude that the denial of a continuance was harmless beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326 [beyond a reasonable doubt that error did not contribute to the verdict].) We cannot do so. Doctor Job was available and did testify on November 7, 2004, the date counsel said he would be available. When the jurors heard evidence concerning defendant’s mental illness and brain injury, they found it credible and sufficiently convincing to find defendant not guilty by reason of insanity. Moreover, the evidence of defendant’s conduct and comments during the incident does not conclusively establish that he acted with specific intent and just as easily be viewed as manifestations of a person suffering under a mental illness. Under the circumstances, we have a reasonable doubt concerning whether the denial of a continuance was harmless.
Moreover, for the same reasons we would find the error reversible under the more lenient Watson harmless error standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) Simply put, it is reasonably probable defendant would have obtained a more favorable result at the guilt phase of his trial had the court granted a continuance.
Disposition
The judgment is reversed.
WE CONCUR: PREMO, J., ELIA, J.