Retroactive Edwards/Johnson Competency Standard for Self-Representation at Capital Penalty Phase; Confrontation Clause Inapplicable to Kelly Hearings

I. Introduction

People v. Bertsch and Hronis is a California Supreme Court automatic appeal from two capital judgments arising out of the 1985 kidnapping, sexual assaults, and murder of Linda Canady. Defendants John Anthony Bertsch and Jeffery Lee Hronis were tried jointly with dual juries and convicted of murder, rape in concert, and kidnapping; Bertsch was additionally convicted of sodomy. Separate penalty juries returned death verdicts for both defendants.

The appeal presented a wide sweep of issues: competency proceedings, severance and dual-jury fairness, speedy trial, jury selection, extensive DNA admissibility disputes (including Kelly hearings), instructions, and penalty-phase claims. The opinion’s most consequential holdings address (1) the standard for competency to represent oneself at the penalty phase in light of intervening federal and state law and (2) the scope of confrontation rights as applied to pretrial Kelly hearings.

II. Summary of the Opinion

  • Convictions affirmed for both defendants.
  • Bertsch: death judgment affirmed.
  • Hronis: death judgment (and sentence) reversed because the trial court granted self-representation at the penalty phase under a pre-Indiana v. Edwards framework; the court holds the post-People v. Johnson (Edwards-based) standard applies retroactively to nonfinal cases, and it is reasonably possible the error affected the penalty verdict.
  • Restitution: any unpaid balance of restitution fines is vacated for both defendants under section 1465.9, subdivision (d).
  • Evidence procedure: the court holds the confrontation clause does not apply to Kelly pretrial hearings.

III. Analysis

A. Precedents Cited

1. Competency to stand trial vs. competency to self-represent

  • Dusky v. United States (1960) 362 U.S. 402 (Dusky): Sets the baseline competence-to-stand-trial test (“rational as well as factual understanding” and ability to consult counsel). The court repeatedly measures California’s scheme against Dusky.
  • People v. Stanley (1995) 10 Cal.4th 764 (Stanley) and People v. Buenrostro (2018) 6 Cal.5th 367 (Buenrostro): Used to reject a facial/as-applied attack on section 1367’s “mental disorder or developmental disability” language. The opinion treats section 1367 as functionally coextensive with Dusky and emphasizes the causal relationship between impairment and trial functioning.
  • Indiana v. Edwards (2008) 554 U.S. 164 (Edwards): The pivot-point precedent—states may insist on counsel for defendants competent to stand trial but not competent to conduct proceedings themselves due to severe mental illness. The opinion relies on Edwards’s recognition of a “gray area” between standing-trial competence and self-representation competence.
  • People v. Johnson (2012) 53 Cal.4th 519 (Johnson): California’s adoption of an Edwards-permitted discretionary denial standard—whether the defendant suffers from a severe mental illness to the point he or she cannot carry out basic self-representation tasks. The 2026 court treats Johnson as a “new rule,” applies the general presumption of retroactivity to nonfinal cases, and finds error where the pre-Edwards standard governed the trial court’s ruling.
  • People v. Brown (1988) 46 Cal.3d 432 (Brown): Supplies the penalty-phase prejudice standard for state-law error (“reasonably possible” the error affected the verdict). This is the lens through which the court assesses whether allowing Hronis to proceed pro per at penalty requires reversal.
  • People v. Taylor (2009) 47 Cal.4th 850 (Taylor): Used to explain pre-Edwards practice and that, at the time, trial courts had no alternative test. The present opinion distinguishes Taylor by addressing retroactivity and applying Johnson’s post-Edwards standard in a case still on direct review.

2. Confrontation, hearsay, and expert testimony

  • Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 813 (Davis): Provide the testimonial/nontestimonial framework for confrontation. The court uses these authorities to analyze trial testimony and to explain why many lab statements may raise evolving Crawford issues—then largely resolves prejudice via harmless-error analysis.
  • People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez): Drives the modern distinction between permissible expert background reliance and impermissible case-specific hearsay related as true. The court applies Sanchez to portions of the DNA expert testimony (often assuming error) but finds any errors harmless given overwhelming evidence and stronger STR proof.
  • Pennsylvania v. Ritchie (1987) 480 U.S. 39 and Kentucky v. Stincer (1987) 482 U.S. 730: Invoked to support the key structural point that confrontation is primarily a “trial right,” bolstering the court’s explicit holding that confrontation does not apply to Kelly hearings.

3. DNA admissibility and scientific evidence

  • People v. Kelly (1976) 17 Cal.3d 24 (Kelly): The governing framework for novel scientific technique admissibility (general acceptance, expert qualification, correct procedures). The court repeatedly frames the DNA litigation through Kelly’s prongs and distinguishes Kelly’s foundational reliability inquiry from case-specific “weight” disputes.
  • People v. Venegas (1998) 18 Cal.4th 47 (Venegas), People v. Soto (1999) 21 Cal.4th 512 (Soto), People v. Cordova (2015) 62 Cal.4th 104 (Cordova), People v. Morganti (1996) 43 Cal.App.4th 643 (Morganti), People v. Jones (2013) 57 Cal.4th 899 (Jones): These anchor the court’s conclusion that RFLP, PCR/DQ-Alpha/Polymarker, and STR methodologies were properly admitted under then-existing Kelly precedents and that many criticisms were for cross-examination/weight, not exclusion.

4. Joinder, dual juries, and severance

  • People v. Harris (1989) 47 Cal.3d 1047 (Harris), People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), People v. Jackson (1996) 13 Cal.4th 1164 (Jackson), People v. Thompson (2016) 1 Cal.5th 1043 (Thompson): Support the proposition that dual juries are permissible and reversible only upon “identifiable prejudice” or “gross unfairness.” The court treats this as “settled” and rejects speculative prejudice theories (crowding, juror speculation, “second prosecutor” effect).

5. Retroactivity methodology

  • People v. Guerra (1984) 37 Cal.3d 385 (Guerra) and Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973: Provide the California framework for identifying a “new rule” and applying the presumption of retroactivity to nonfinal cases while acknowledging narrow fairness/administration-of-justice exceptions (which the court rejects here).

B. Legal Reasoning

1. Hronis’s penalty-phase self-representation: retroactive Edwards/Johnson error

The court draws a sharp doctrinal line: competence to stand trial (Dusky/section 1367) does not necessarily answer competence to conduct proceedings without counsel (Edwards/Johnson). At the time of Hronis’s 2000 penalty phase, California courts generally treated the standards as the same; the trial court thus did not apply the Edwards/Johnson inquiry.

The 2026 court then makes two crucial moves:

  1. Retroactivity: It characterizes Johnson as a “new rule” because it changed the self-representation competency inquiry by adopting an Edwards-permitted standard, and it applies the default retroactivity presumption to cases not final on appeal (rejecting administration-of-justice and reliance concerns given Edwards’s age and settledness).
  2. Prejudice: Using People v. Brown (1988) 46 Cal.3d 432 (Brown), it finds it “reasonably possible” the error affected the penalty verdict. The record contained substantial litigation about Hronis’s rigid religious revelation, cognitive limits, and potential inability to perform the “expanded role” of self-representation—followed by a penalty phase in which he presented no evidence, filed no motions, did not testify, and gave no closing argument.

This reasoning is as much functional as doctrinal: even if Hronis could “play the lesser role of represented defendant,” Edwards permits a state to bar him from “playing the significantly expanded role required for self-representation,” particularly where the reliability demands of a capital penalty phase heighten the stakes.

2. Confrontation clause inapplicable to Kelly hearings

The court squarely holds that the confrontation clause does not apply to Kelly pretrial hearings. Its rationale is structural:

  • Confrontation is a “trial right,” not a general pretrial evidentiary entitlement.
  • A Kelly hearing’s purpose is limited—screening the admissibility of novel science, not determining guilt—and the prosecution must still prove its case at trial where confrontation applies.
  • The third Kelly prong concerns threshold procedural correctness, not every case-specific irregularity; lab staff participation and record review are often sufficient to meet the prong, leaving many disputes for weight at trial.

This holding materially clarifies litigation strategy in scientific-evidence cases: it channels confrontation disputes to trial (and, as needed, to post-Sanchez hearsay analysis), while allowing Kelly gatekeeping to proceed without importing full confrontation doctrine.

3. Treatment of post-Crawford/Sanchez expert issues at trial

Although the court assumes or acknowledges potential Crawford/Sanchez problems in some DNA testimony (especially surrogate/managerial testimony about technicians’ work), it repeatedly resolves the case on prejudice, emphasizing:

  • The overwhelming non-DNA evidence of the joint crime spree, plan to carjack, credit-card trail, and admissions.
  • The dominance of modern STR results (trillion-level random match figures) relative to older RFLP and DQ-Alpha/Polymarker proof, rendering any error cumulative.

4. Restitution fine balances vacated under section 1465.9, subdivision (d)

The court applies the statutory 10-year enforceability limit to vacate any unpaid balance of restitution fines—relief that attaches by operation of law and requires amended abstracts.

C. Impact

1. Capital penalty-phase self-representation litigation

The opinion will be cited for two propositions with practical bite:

  • Retroactivity on direct review: If a death judgment is still nonfinal, trial courts’ pre-Edwards grant of Faretta at the penalty phase may be vulnerable if the record suggests “gray area” severe mental illness or functional inability to self-try.
  • Functional focus: The inquiry is not legal sophistication; it is the ability to perform “basic tasks” of self-defense (motions, organization, voir dire participation, witness examination, argument).

Expect increased emphasis on building an Edwards/Johnson record at the moment of the Faretta request—particularly in capital penalty phases, where the prejudice calculus is more defendant-protective under Brown.

2. Scientific evidence procedure: streamlined Kelly hearings

The confrontation-clause holding reduces incentives to transform Kelly hearings into quasi-trials demanding production of every technician. Defense challenges will instead concentrate on: (a) developing hearsay-exception deficiencies for trial, (b) Sanchez framing of “case-specific” facts, and (c) weight attacks (validation, contamination risks, interpretation disputes) before the jury.

3. Restitution fine enforcement

The application of section 1465.9, subdivision (d) reinforces that legacy restitution fine balances can be vacated after 10 years, prompting defense counsel to scrutinize old abstracts and collection status even in capital and life cases.

IV. Complex Concepts Simplified

  • Competent to stand trial (Dusky/section 1367): You can understand the proceedings and rationally help your lawyer.
  • Competent to represent yourself (Edwards/Johnson): Even if you can stand trial, you might be too impaired (because of severe mental illness) to do the lawyer’s job—organize a defense, make motions, question witnesses, and argue to a jury—so the court may require counsel.
  • Faretta motion: A request to waive counsel and represent oneself.
  • Kelly hearing: A pretrial screening to decide whether a scientific method is reliable enough (generally accepted), whether the expert is qualified, and whether proper procedures were used in the case.
  • Crawford/Sanchez issues: Limits on using out-of-court statements through experts. Experts can rely on information, but generally cannot present case-specific out-of-court assertions as true unless a hearsay exception applies—and testimonial statements can trigger confrontation problems at trial.
  • Dual juries: Two defendants tried together in one courtroom, but each has a separate jury to avoid evidentiary spillover.

V. Conclusion

People v. Bertsch and Hronis leaves the guilt verdicts intact and affirms Bertsch’s death judgment, but reverses Hronis’s death sentence on a forward-looking, system-shaping ground: self-representation at a capital penalty phase must be evaluated under the Edwards/Johnson “severe mental illness/functional capacity” standard, and that standard applies retroactively to cases not final on appeal. In parallel, the court clarifies pretrial scientific-evidence practice by holding the confrontation clause does not apply to Kelly hearings. Together, these holdings recalibrate two recurring pressure points in capital litigation—autonomy versus reliability at penalty, and the procedural architecture for testing forensic science before trial.