Filed 1/30/15 P. v. White CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139126
v.
ROBERT WHITE,                                                        (Mendocino County
                                                                     Super. Ct. No. SCUKCRCR1270765)
         Defendant and Appellant.

         Robert White was convicted of two counts of attempted robbery with use of a
knife and one count of dissuading a witness. He contends the court erred when it failed
to suspend proceedings for a competency hearing. White further asserts that his court
trial was tantamount to a slow plea, so that the court was required to advise him and
obtain waivers of his constitutional trial rights, that the imposition of consecutive terms
for attempted robbery and dissuading a witness violated Penal Code section 654, 1 and
that the court failed to understand and exercise its discretion to impose three 25-years-to-
life sentences concurrently. None of his contentions have merit. We affirm the
judgment. Both parties correctly agree the abstract of judgment contains errors, so we
also direct the trial court to prepare a corrected abstract that accurately reflects the
judgment.
                                                 BACKGROUND
         Around 11:20 a.m. on December 20, 2012, Royleen Eriksen had finished her
grocery shopping and was approaching her parked pickup truck when she heard someone

         1
             Further statutory citations are to the Penal Code.


                                                             1
say “Look at this. It’s a knife.” She looked and saw White holding a knife an inch or
two from her side. She screamed and ran around to the far side of her shopping basket.
White yelled at her to give him her money. At that point Mrs. Eriksen’s husband jumped
out of the truck and started to make a call on his cell phone. White approached him with
the knife in his hand and told him to hang up, then headed across the parking lot with Mr.
Eriksen following him. After briefly losing sight of White, Mr. Eriksen spotted him in a
Planet Smoothie shop. White left the shop, saw Mr. Eriksen and pulled the knife out of
his pocket, saying “Do you want some of this?” Mr. Eriksen retreated across the street
and White headed around the corner. Just then police arrived. Mr. Eriksen gave them
White’s description and pointed out the direction he had fled.
       Patricia DeLapo was nearby that morning Christmas shopping. She was standing
at the passenger side of her parked car when she heard a voice behind her say “Get in
your car.” She turned and saw White with a knife. He said “Lady, I have something here
that can hurt you.” DeLapo asked White why he wanted her to get in the car. He replied
that he really just wanted money to get out of town. Just then, looking past DeLapo’s
shoulder, White said “Oh, shit, here comes the cops,” and took off. DeLapo walked
around the corner and saw White surrounded by police officers with his hands behind his
back. A knife was found in his back pocket.
       White was charged with the attempted robbery of DeLapo and Mrs. Eriksen
(counts one and four) with special knife use allegations, assault of Mr. Eriksen with a
deadly weapon (count two), dissuading a witness (Mr. Eriksen, count three) with a
special knife use allegation, and inflicting pain or mental suffering on an elder with the
use of a knife (DeLapo, count five). The information alleged four prior serious felony
conviction enhancements under section 667, subdivision (a) and four prior strike
convictions under sections 1170.12 and 667.
       On the day set for trial White waived his right to a jury. The case was tried to the
court the following day. The court found White guilty of the two attempted robberies and
dissuading a witness, and found the knife use allegations true as to those counts. The




                                             2
court also found true three of the section 667, subdivision (a) allegations and all four
strike allegations. White was acquitted of counts two and five.
       White was sentenced to a total term of 98 years to life in state prison.
                                       DISCUSSION
 I. The Court Was Not Required To Suspend the Trial For A Competency Hearing
       White contends there was substantial evidence that he was not competent to stand
trial, and therefore that the court deprived him of due process of law when it failed to
suspend the proceedings and conduct a competency hearing. His assertion is meritless.
       “Both the due process clause of the Fourteenth Amendment to the United States
Constitution and state law prohibit the state from trying or convicting a criminal
defendant while he or she is mentally incompetent. [Citations.] A defendant is
incompetent to stand trial if he or she lacks ‘ “a sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and . . . a rational as well
as a factual understanding of the proceedings against him.” ’ ” (People v. Rogers (2006)
39 Cal.4th 826, 846–847.) Therefore, “[b]oth federal due process and state law require a
trial judge to suspend trial proceedings and conduct a competency hearing whenever the
court is presented with substantial evidence of incompetence, that is, evidence that raises
a reasonable or bona fide doubt concerning the defendant's competence to stand trial.
[Citations.] The court’s duty to conduct a competency hearing may arise at any time
prior to judgment. [Citations.] Evidence of incompetence may emanate from several
sources, including the defendant’s demeanor, irrational behavior, and prior mental
evaluations. [Citations.] But to be entitled to a competency hearing, “ ‘a defendant must
exhibit more than . . . a preexisting psychiatric condition that has little bearing on the
question . . . whether the defendant can assist his defense counsel.’ ” (Id. at p. 47; People
v. Ramos (2004) 34 Cal.4th 494, 508; People v. Welch (1999) 20 Cal.4th 701, 738.) On
appeal we apply a substantial evidence standard based on the record at the time the ruling
was made. (People v. Welch, supra, 20 Cal.4th at p. 739; People v. Laudermilk (1967) 67
Cal.2d 272, 283, fn. 10.) The court’s decision “whether or not to hold a competence




                                               3
hearing is entitled to deference, because the court has the opportunity to observe the
defendant during trial. (People v. Rogers, supra, 39 Cal.4th at p. 847.)
       White claims the following evidence raised a reasonable doubt about his
competence. In October 1996, while incarcerated, he was transferred to Atascadero State
Hospital pursuant to Penal Code section 2684.2 In April 1997 he was paroled but
retained at Atascadero for four additional months of treatment by the Department of
Mental Health as a condition of his parole. White told his probation officer that in June
2012 he was released on parole “with prescription medication for his mental health
issues.” He entered a recovery program, but left after five months “once his medication
ran out” and resumed his lifelong pattern of alcohol and polysubstance abuse. White
“disclosed methamphetamine is his drug of choice and he was high at the time of the
instant offense.” He said he had been “up for nine days straight just prior to this offense
and had been hallucinating and acting paranoid. He believed people were after him.”



       2
        Section 2684 provides: “(a) If, in the opinion of the Secretary of the Department
of Corrections and Rehabilitation, the rehabilitation of any mentally ill, mentally
deficient, or insane person confined in a state prison may be expedited by treatment at
any one of the state hospitals under the jurisdiction of the State Department of State
Hospitals or the State Department of Developmental Services, the Secretary of the
Department of Corrections and Rehabilitation, with the approval of the Board of Parole
Hearings for persons sentenced pursuant to subdivision (b) of Section 1168, shall certify
that fact to the director of the appropriate department who shall evaluate the prisoner to
determine if he or she would benefit from care and treatment in a state hospital. If the
director of the appropriate department so determines, the superintendent of the hospital
shall receive the prisoner and keep him or her until in the opinion of the superintendent
the person has been treated to the extent that he or she will not benefit from further care
and treatment in the state hospital.
(b) Whenever the Secretary of the Department of Corrections and Rehabilitation receives
a recommendation from the court that a defendant convicted of a violation of Section
646.9 and sentenced to confinement in the state prison would benefit from treatment in a
state hospital pursuant to subdivision (a), the secretary shall consider the
recommendation. If appropriate, the secretary shall certify that the rehabilitation of the
defendant may be expedited by treatment in a state hospital and subdivision (a) shall
apply.”



                                             4
White was “previously diagnosed with Schizoaffective Bipolar Disorder and disclosed
several suicide attempts in the past.”
       None of this indicates White was unable to understand the proceedings and assist
his counsel at the time of trial, and there is no indication in the pretrial, trial and
sentencing transcripts that White’s behavior or demeanor in the courtroom cast doubt on
his competence. There was no evidence that any past or current mental illness or
substance abuse affected his ability to understand the trial process or assist his attorney.
In contrast to the cases White cites, his self-reported suicide attempts were neither current
nor accompanied by bizarre behavior, the testimony of a mental health professional
regarding his competence, nor any other indication of incompetence to stand trial. (Cf.
People v. Pennington (1967) 66 Cal.2d 508 [defendant interrupted trial with comments
and curses, displayed his penis to courtroom spectators, was observed weeping in his jail
cell with abrasions on his wrists, and a psychologist testified the defendant was not
competent]; Drope v. Missouri (1975) 420 U.S. 162 [defendant with previous diagnoses
of psychiatric problems tried to choke his wife the evening before trial and shot himself
during the trial; pretrial psychiatric evaluation reported defendant had difficulty
participating and relating and was “markedly circumstantial and irrelevant in his
speech”]; Pate v. Robinson (1966) 383 U.S. 375 [childhood head injury followed by long
history of severely disturbed and irrational behavior, testimony of four witnesses that
defendant was insane].) Nor did defense counsel indicate at any time that White was
having difficulty assisting in his defense or understanding the proceedings or charges
against him.
       After our review of the entire record, we are satisfied there was no evidence of
incompetence that would have required the trial court to stop the trial and conduct a
competence hearing.
                       II. White’s Trial Did Not Amount To A Slow Plea
       White contends his court trial amounted to a slow plea because his attorney cross-
examined only two of five prosecution witnesses, presented no defense evidence, and
argued only that White was not guilty of three of the five counts. Therefore, he argues,


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the trial court erred when it failed to advise him and obtain a waiver of his constitutional
trial rights and to explain the consequences of a conviction. His contention fails with its
premise that the court trial “ ‘amounted to a prima facie showing of guilt’ ” and was “
‘equivalent of a plea of guilty.’ ”
       When a defendant pleads guilty or admits the truth of a prior conviction, the court
must obtain a knowing and intelligent waiver of the defendant’s constitutional rights to a
jury trial and to confront and cross-examine the witnesses against him, and his right to
assert a privilege against self-incrimination. (People v. Wright (1987) 43 Cal.3d 487,
491-492; see Boykin v. Alabama (1969) 395 U.S. 238, 242 (Boykin); In re Tahl (1969) 1
Cal.3d 122, 132 (Tahl); In re Yurko (1974) 10 Cal.3d 857, 863–864.) When a prior
conviction allegation is admitted, the court must also advise the defendant of the
increased sentence that may be imposed due to the prior conviction. (In re Yurko, supra,
at p. 864.) If the court fails to give required advisements and obtain the defendant’s
waiver of constitutional rights, the judgment must be reversed unless the record shows
the plea was voluntarily and intelligently given under the totality of the circumstances.
(People v. Howard (1992) 1 Cal.4th 1132, 1175.)
       Our Supreme Court extended these constitutional requirements to cases in which a
defendant enters a “slow plea,” or submits on the transcript of the preliminary hearing
and the submission is “tantamount to a plea of guilty.” (In re Mosley (1970) 1 Cal.3d
913, 924–926; People v. Levey (1973) 8 Cal.3d 648, 654; Bunnell v. Superior Court
(1975) 13 Cal.3d 592; see also People v. Robertson (1989) 48 Cal.3d 18, 39; People v.
Wright, supra, 43 Cal.3d at p. 492.) “Under the rule of [Boykin] and [Tahl], as extended
in [Bunnell] and other cases, ‘when the defendant agrees to a submission procedure, such
as a guilty plea or a submission on the preliminary hearing transcript, by virtue of which
he surrenders one or more of the three specified rights . . . ’ [citation], the record must
reflect that he was advised of and personally waived the applicable right or rights.
[Citation.] When the submission is a guilty plea or ‘tantamount to a plea of guilty’
[citation] the Boykin-Tahl requirements are constitutionally compelled.” (People v.
Robertson, supra, at p. 39.)


                                               6
       White’s court trial was not the equivalent of a “slow plea.” “A ‘slow plea’ has
been defined as follows: ‘It is an agreed-upon disposition of a criminal case via any one
of a number of contrived procedures which does not require the defendant to admit guilt
but results in a finding of guilt on an anticipated charge and, usually, for a promised
punishment.’ [Citation.] ‘Perhaps the clearest example of a slow plea is a bargained-for
submission on the transcript of a preliminary hearing in which the only evidence is the
victim’s credible testimony, and the defendant does not testify and counsel presents no
evidence or argument on defendant’s behalf . . . . [¶] Submissions that are not considered
slow pleas include those in which . . . the facts revealed at the preliminary examination
are essentially undisputed but counsel makes an argument to the court as to the legal
significance to be accorded them. [Citation.]’ [Citation.] ‘If it appears on the whole that
the defendant advanced a substantial defense, the submission cannot be considered to be
tantamount to a plea of guilty.’ ” (People v. Stone (1994) 27 Cal.App.4th 276, 282;
People v. Wright, supra, 43 Cal.3d at pp. 496–497.) Whether a proceeding qualifies even
as a “submission,” of which a slow plea is a subset, depends on whether the defendant’s
waiver of rights was by virtue of an agreement to proceeding on agreed evidence.
(People v. Robertson, supra, 48 Cal.3d at p. 39.)
       Here, White agreed to, and proceeded with, a court trial. He did not agree to
submit the truth of the allegations on agreed evidence, and his waiver of a jury was not a
consequence of any such agreement. There was no negotiated punishment. While
defense counsel did not cross-examine three of the five prosecution witnesses, he did
cross-examine two of them and retained the right to conduct further cross-examination.
White did not elect to present evidence in his defense, but he retained the right to do so.
“[A] decision not to exercise a right is not the same as a waiver of that right.” (People v.
Marella (1990) 225 Cal.App.3d 381, 387 [waiver of jury trial on prior prison term
allegation was not a “submission” even though only evidence was certified prison records
and defendant submitted without argument].) Moreover, White’s attorney successfully
argued that there was insufficient evidence to convict White of elder abuse or assaulting
Mr. Eriksen with a deadly weapon and, albeit unsuccessfully, that the prosecution failed


                                              7
to prove witness intimidation. As in Marella, “[u]nder the circumstances, [White] did not
‘incriminate himself by an “involuntary confession of guilt” ’ or ‘surrender the right to
confront and cross-examine the witnesses against him’ by agreeing to a court rather than
a jury trial.” (Ibid., fn. omitted.)
       White argues the court trial was tantamount to a guilty plea because his counsel
presented no defense to the attempted robbery charges and only minimal argument
against the witness intimidation count. Not so. The fact that defense counsel focused on
the counts supported by the weakest evidence and chose not to challenge the
overwhelmingly strong evidence on the attempted robbery counts, which included both
victims’ eyewitness testimony, did not transform the trial into a slow plea. “ ‘If it appears
on the whole that the defendant advanced a substantial defense, the submission cannot be
considered to be tantamount to a plea of guilty. Sometimes, a defendant’s best defense is
weak. He may make a tactical decision to concede guilt as to one or more of several
counts as part of an overall defense strategy. A submission under these circumstances is
not a slow plea, and the trial court is not constitutionally compelled by Boykin and Tahl
to administer the guilty-plea safeguards to assure that the tactical decision is voluntary
and intelligent.’ ” (People v. Sanchez (1995) 12 Cal.4th 1, 28–29, quoting People v.
Wright, supra, 43 Cal.3d at pp. 496–497, italics omitted.)
       People v. Tran (1984) 152 Cal.App.3d 680 (Tran), which White argues supports
reversal, is inapposite. The defendants there were charged with attempted robbery,
assault with a deadly weapon, and related offenses and enhancements. The jury was
sworn and the victim “related a confusing, disjointed” recitation of the crime through an
interpreter. Then, before any cross-examination, the defendants and their attorneys
waived a jury, stipulated that disturbing the peace and brandishing a firearm were lesser
included offenses, and submitted. The prosecution accepted the stipulations and rested.
Defense counsel neither cross-examined the victim nor presented evidence. The court
immediately found the defendants guilty of the stipulated lesser included offenses,
acquitted them of all other charges, and sentenced them to 60-day jail terms with credit
for 60 days time served. (Id. at pp. 682–683.)


                                              8
       In Tran, the Court of Appeal found the procedure amounted to a slow plea. Only
the victim testified, and after the prosecution’s case faltered with his direct examination
there was no cross-examination, no defense, and no argument by either side. Moreover,
as the court observed, “the prosecution does not stipulate disturbing the peace is a lesser
included offense of robbery in actual trials in our experience. Nor are 60-day ‘time
served’ sentences recommended by prosecutors or accepted by judges in robbery cases
with guns in the real world of real trials.” (Tran, supra, 152 Cal.App.3d at p. 683.) This,
then, was a not a “real trial[]”, but rather a “legal charade with defense counsel and the
prosecutor as principal actors.” (Id. at pp. 683, 684.) The same cannot be said here.
         III. The Court Properly Imposed Consecutive Terms for Counts One and
                                           Three
       White argues the court violated section 654 when it sentenced him to consecutive
25-year terms for counts one and three, the attempted robbery of Mrs. Eriksen and
intimidating a witness as to Mr. Eriksen. This is so, he contends, because the two
offenses were incidental to the same objective of robbing Mrs. Eriksen and avoiding
arrest for the crime. He is mistaken.
       Pursuant to section 654, “[a]n act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) “Section 654 prohibits
punishment for two crimes arising from a single indivisible course of conduct. [Citation.]
If all of the crimes were merely incidental to, or were the means of accomplishing or
facilitating one objective, a defendant may be punished only once. [Citation.] If,
however, a defendant had several independent criminal objectives, he may be punished
for each crime committed in pursuit of each objective, even though the crimes shared
common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The
defendant’s intent and objective are factual questions for the trial court, and we will
uphold its ruling on these matters if it is supported by substantial evidence.” (People v.
Perry (2007) 154 Cal.App.4th 1521, 1525.) We review the evidence in the light most


                                              9
favorable to the People and presume in support of the judgment the existence of every
fact the trier could reasonably deduce from it. (People v. McGuire (1993) 14 Cal.App.4th
687, 698.)
           The fatal weakness in White’s argument lies in the “multiple victim” exception to
section 654. “ ‘Under this exception, “even though a defendant entertains but a single
principal objective during an indivisible course of conduct, he may be convicted and
punished for each crime of violence committed against a different victim.” [Citations.]
The reason for the multiple victim exception is that “when a defendant ‘“commits an act
of violence with the intent to harm more than one person or by means likely to cause
harm to several persons,” his greater culpability precludes application of section 654.’ ”
(People v. Centers (1999) 73 Cal.App.4th 84, 99.) Accordingly, section 654 does not
preclude separate punishment for White’s attempted robbery of Mrs. Eriksen and his
ensuing attempt to prevent her husband from thwarting his escape.
           White argues the multiple victim exception does not apply because a conviction
for witness intimidation under section 136.1, subdivision (b)(3) is not a crime “of
violence.”3 That may be so in some circumstances, but here the court found that White
used a knife in committing the offense against Mr. Eriksen. White can hardly argue, at
least with any modicum of credibility, that his attempt to prevent Mr. Eriksen from
summoning help by threatening him with a knife was not a violent offense for purposes
of the multiple victim exception. (See People v. Centers, supra, 73 Cal.App.4th at p. 99
[any crime involving the use or display of a firearm is deemed violent for multiple victim
exception to § 654].) The imposition of consecutive sentences on counts one and three
was not error.

       3
        Section 136.1, subdivision (b)(3) provides that “Except as provided in subdivision
(c), every person who attempts to prevent or dissuade another person who has been the
victim of a crime or who is witness to a crime from doing any of the following is guilty
of a public offense and shall be punished by imprisonment in a county jail for not more
than one year or in the state prison: . . . . (3) Arresting or causing or seeking the arrest of
any person in connection with that victimization.” In contrast, Section 136.1, subdivision
(c)(1) makes the same act a felony “Where the act is accompanied by force or by an
express or implied threat of force or violence. . . .”


                                              10
        IV. The Court Properly Imposed Consecutive Terms Under Section 1170.12
       At sentencing, the trial court first explained its imposition of consecutive terms on
the knife use enhancements as follows: “[F]irst, I think certainly the Court could stay one
or more of the knife enhancements if it chose to do that. But—and they could probably
also be run concurrent to each other, the knife enhancements alone. But the knife was
used on the first victim in the parking lot by Lucky’s. The second use of the knife was on
a different victim, although he was the husband of the first victim. It was in a different
location. It was out on, you know, essentially Orchard. And Mr. White came out of a
place of business to threaten that gentleman with a knife. [¶] And then the incident with
Mrs. DeLapo is a completely different victim. And although the motivation may be
robbery, it could have been wanting to take her vehicle as well. Hard to say. But in the
usual sense where you decide to run things concurrent or consecutive, I would run those
consecutive.”
       The court further commented that while it might have the authority to impose and
stay some of the special allegations of prison priors, it would not do so in this case. “It’s
a significant course of conduct that we have these three—essentially, three separate
strikes in the course of this day with enhancements. And the defendant’s prior record,
which is the reason for the fourth, fifth, sixth and seventh special allegations, merits the
imposition of those prior prison terms.” Then, turning to the felony counts, the court
continued: “The 25-to-life terms are mandatory. My reading of [section] 1170.12 is that
the Court shall run the consecutive 25-to-life sentences concurrent—I mean consecutive.
But even if I have discretion to run them concurrent for the same reason that I articulated
with the knife, you know it’s three separate victims, it’s three separate people who were
subjected to, you know, essentially, fear for their lives, and I don’t think I would if I
could.” (Italics added.)
       White contends the court’s belief that it was required to impose consecutive 25-
years-to-life terms was erroneous because section 1170.12 mandates consecutive
sentencing only when multiple felonies are not committed on the “same occasion” and do
not arise from the same operative facts. White says the attempted robberies and witness


                                              11
dissuasion were committed on the “same occasion” for purposes of section 1170.12, so
the court possessed, but failed to understand and exercise, the discretion to sentence
concurrently. The contention is meritless. Leaving aside that White forfeited this largely
factual claim by failing to raise it at sentencing (see People v. Scott (1994) 9 Cal.4th 331,
353–354), the trial court clearly explained its view that these were different offenses
against different victims, and that it would have imposed consecutive terms even if it had
the authority to sentence White concurrently. “If the record shows that the trial court
would not have exercised its discretion even if it believed it could do so, then remand
would be an idle act and is not required.” (People v. Sanders (1997) 52 Cal.App.4th 175,
178, disapproved on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947 fn.
11; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Such is the case here.
                      IV. The Abstract of Judgment Must Be Corrected
       Both parties agree, correctly, that the abstract of judgment contains errors and
must be corrected to accurately reflect the judgment imposed by the court. Specifically,
the abstract fails to reflect that the trial court imposed one five-year term for each of
White’s four section 667, subdivision (a) special allegations, for a total of four five-year
terms. Instead, the abstract shows three five-year terms and one six-year, one-month
term. In addition, the abstract erroneously indicates White was sentenced to life with the
possibility of parole on counts one, three and four. The abstract must be corrected to
reflect the oral pronouncement of the court at sentencing. (See People v. Jones (1999) 75
Cal.App.4th 616, 635.)
                                          DISPOSITION
       The trial court is directed to prepare a corrected abstract of judgment reflecting the
judgment orally imposed by the court and to forward a certified copy of the corrected
abstract to the Department of Corrections. The judgment is affirmed.




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                                 _________________________
                                 Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




People v. White, A139126




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