Filed 1/28/14 P. v. Rodriguez CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B245986

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. LA068402)
         v.

EDUARDO RODRIGUEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Gregory A. Dohi, Judge. Affirmed as modified.
         Edward H. Schulman, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, James William
Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.


         Eduardo Rodriguez appeals from the judgment entered following his
conviction by jury on six counts: kidnapping to commit another crime (Pen. Code,
§ 209, subd. (b)(1)),1 sexual penetration by a foreign object (§ 289, subd. (a)(1)(a)),
attempted forcible rape (§§ 664/261, subd. (a)(2)), kidnapping (§ 207, subd. (a)),
and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). He contends
that the trial court erred in failing to declare a doubt as to his mental competence
and hold a hearing pursuant to section 1368. He also argues that the court erred in
imposing a $5,000 fine pursuant to section 667.6. We conclude that the court did
not err in failing to declare a doubt as to appellant’s mental competence. However,
the fine under section 667.6 was erroneously imposed. We strike the $5,000 fine
and order the imposition of the mandatory court security fee and criminal
conviction assessment. In all other respects the judgment is affirmed.


              FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
      On July 17, 2011, around 10:00 p.m., Irma N. went to a nightclub in Los
Angeles County, where she saw an acquaintance named Jimmy Alexander
Rodriguez (known as Alex). Appellant was also at the nightclub. Irma N. and
Alex were acquainted with appellant, and appellant and Alex shared mutual
friends.
      When the nightclub closed around 2:00 a.m. that night, Alex invited Irma to
go with him to a friend’s house, so Irma got into the passenger seat of Alex’s car
for him to drive her there. Appellant approached Alex’s car and got into the rear
seat, telling Alex he was going wherever they were going.
      Alex drove them to his friend’s house but there was no one home, so he
started driving back to the nightclub for Irma and appellant to retrieve their cars.


1
      All further statutory references are to the Penal Code unless otherwise specified.

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As they started driving away, appellant placed a knife against Alex’s neck and
threatened to cut him if he stopped driving. Appellant placed the knife against
Irma’s neck and threatened her, telling her she was going to die. He told Alex to
continue driving and told Irma to get in the back seat with him. Appellant pulled
Irma into the back seat and climbed on top of her, still wielding the knife and
touching it to various parts of her body. Appellant removed Irma’s underwear and
attempted to rape her, but he did not have an erection. He put his finger in her
vagina, touched her breasts, and put his penis in her mouth.
       Alex told appellant he needed to buy gas, so he stopped at a gas station and
called the police. Police officers arrived and detained appellant.
       Kimberly Freeman, a DNA analyst, testified that swab samples matching
appellant’s DNA were taken from Irma’s breasts and mouth area. Swab samples
matching Irma’s DNA were taken from appellant’s finger and from a brown stain
on his shirt.
       The sexual assault nurse who collected swabs and blood from appellant
testified, as did the forensic nurse examiner who examined Irma. In addition, the
officer who responded to the 911 call and the detective who investigated the case
both testified.


Defense Evidence
       Mehul Anjaria, a DNA consultant, testified about the limitations of DNA
testing in general and of the DNA tests performed in this case. These limitations
included that it was not possible to determine with certainty whether a certain
sample was saliva, and that a test of material from appellant’s penis was too
incomplete to be conclusive.



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Procedural Background
      Appellant was charged in an amended information with six counts:
(1) kidnapping to commit another crime (§ 209, subd. (b)(1)); (2) sexual
penetration by a foreign object (§ 289, subd. (a)(1)(A)); (3) attempted forcible rape
(§§ 664/261, subd. (a)(2)); (4) assault with a deadly weapon on Irma (§ 245, subd.
(a)(1)); (5) kidnapping (§ 207, subd. (a)); and (6) assault with a deadly weapon on
Alex (§ 245, subd. (a)(1)). It was further alleged as to counts 1, 2, 3, and 5 that
appellant personally used a deadly weapon (§ 12022, subd. (b)(1)).
      The jury found appellant guilty on all counts and found the special
allegations to be true. The court sentenced appellant to a term of 31 years to life
calculated as follows: as to count 2, 25 years to life (§§ 289, subd. (a)(1)(A),
667.61, subds. (a), (d)); as to count 5, the midterm of five years, plus one year for
the weapon allegation (§§ 207, subd. (a), 12022, subd. (b)(1)). Sentences on the
other counts were imposed and stayed. Appellant filed a timely notice of appeal.


                                    DISCUSSION
I.    Mental Competence
      Appellant contends that the trial court erred in failing to declare a doubt as to
his competence to stand trial. He relies on several incidents and discussions during
trial, recounted in detail below, to argue that the trial court should have declared a
doubt as to his competence and conducted a hearing pursuant to section 1368. We
conclude that the trial court did not abuse its discretion in failing to declare a doubt
and hold a competency hearing.
      “‘Both the due process clause of the Fourteenth Amendment to the United
States Constitution and state law require a trial judge to suspend proceedings and
conduct a competency hearing whenever the court is presented with substantial

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evidence of incompetence, that is, evidence that raises a reasonable or bona fide
doubt concerning the defendant’s competence to stand trial. [Citations.] Failure to
declare a doubt and to conduct a competency hearing when there is substantial
evidence of incompetence requires reversal of the judgment. [Citation.]’
[Citation.] Competency under federal law requires sufficient present ability to
consult with one’s lawyer with a reasonable degree of rational understanding and a
rational and factual understanding of the proceedings against one. [Citation.]
Similarly, under state law a defendant is mentally incompetent to stand trial if, as a
result of mental disorder or developmental disability, he or she is unable to
understand the nature of the criminal proceedings or to assist counsel in the
conduct of the defense in a rational manner. (§ 1367.)” (People v. Halvorsen
(2007) 42 Cal.4th 379, 401 (Halvorsen).)
      “When the evidence casting doubt on an accused’s present competence is
less than substantial, the following rules govern the application of section 1368. It
is within the discretion of the trial judge whether to order a competence hearing.
When the trial court’s declaration of a doubt is discretionary, it is clear that ‘more
is required to raise a doubt than mere bizarre actions [citation] or bizarre
statements [citation] or statements of defense counsel that defendant is incapable of
cooperating in his defense [citation] or psychiatric testimony that defendant is
immature, dangerous, psychopathic, or homicidal or such diagnosis with little
reference to defendant’s ability to assist in his own defense [citation].’ [Citation.]”
(People v. Welch (1999) 20 Cal.4th 701, 742 (Welch), overruled in part on another
ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
      Appellant’s argument is based on the following incidents.
      On November 6, 2012, the first day of trial, appellant refused to change out
of jail clothing into regular street clothes. He told the court that he wanted to

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replace his privately-retained attorney. The court advised appellant that it would
not grant a continuance, explaining that the case already had been delayed and a
jury pool ordered, so any further delay would cause great inconvenience and
expense. The court therefore gave appellant the choice of proceeding with his
attorney or asking to represent himself. Appellant replied, “We have been delayed
so long now in this trial it was – to wait for the investigator to finish. And even
now he told me that the investigator has disappeared. Why so much time when the
investigator hasn’t done anything. There were three investigators that started, and
that’s why there was so much of a delay. I would like to have a just trial, Your
Honor, before God, and I want you, sir, to do the right thing. You are a witness
that we have changed investigators several times.” Appellant also expressed
frustration that, only the day before trial, defense counsel told him about a plea
offer from the prosecutor. Defense counsel explained that he received the offer
late in the day and expressed his readiness to proceed to trial. The court again gave
appellant the choice to represent himself or to proceed with his retained attorney.
Appellant replied, “I cannot represent myself. That’s why I got a lawyer.” He
expressed frustration that he had not had sufficient time to consider the plea offer
but decided to turn down the offer.
      After further discussion, appellant changed into regular clothes and
proceeded with the trial. Appellant’s responses and comments to the court
throughout the discussion were appropriate and indicated that he understood the
nature of the proceedings.
      The following day, after a break during jury selection, appellant refused to
change his clothes and refused to leave his cell. Defense counsel stated the
following regarding appellant’s mental competency: “[E]arlier I made a comment
that I was not having a doubt as to my client’s competency. Because of the

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behavior, I have asked him if he understands the charges, and he has responded in
a manner that I do think indicates that he does understand the charges. However, I
would say I have some concern about his abilities to cooperate with me rationally
during this trial. Related to that, it’s apparent that he’s expressed suicidal thoughts.
I have relayed those to the court because I believe that the court is – he’s in the
court’s custody and the court should be aware of that. My information is that he
may be subject to a suicide watch. So where we are in the trial, I think that he
probably qualifies for what we would call a Welfare and Institutions Code 5150
type of treatment, but he may not qualify as a 1368 based upon my interview and
my observation at this time. So I’m not sure how the court wishes to proceed.”
        The court asked, “First, you are not declaring a doubt at this time then?”
Defense counsel replied, “That is correct.”
        The court then stated, “So I would also note that I have spoken to the
defendant in your presence on the record, and he has shown an understanding with
his situation; albeit, a deep unhappiness with his situation. He appears to be
coherent, at least he did appear to be coherent yesterday. When I saw him this
morning, looking at him, he is dressed appropriately and behaves appropriately.
So I’m – there’s nothing for me to base any sort of a finding of a doubt of his
competence.
        “As to how to proceed from here, the deputies have been made aware of his
expressions of suicidal thoughts, and they’ve taken the appropriate steps. I want to
deem him to have absented himself from these proceedings, and we’ll just carry
on. This is pursuant to Penal Code section 1043 subdivision (b)(2), which permits
the court to proceed in the absence of the defendant in a non-capital case where the
defendant voluntarily absents himself, . . . and that’s what we’ve got going on right
now.”

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      A deputy who had spoken with appellant explained to the court that, “Earlier
[appellant] said he wanted to hurt himself and didn’t want to live, that he was
ashamed. And when I brought him up just right before maybe 1:30, he said he was
not going to come out and he wasn’t going to dress out.” Following further
discussion, the court provided appellant with a portable speaker through which the
interpreter translated the proceedings. Neither party objected to the procedure.
      On November 9, 2012, during trial, defense counsel explained that appellant
had declined an offer from the prosecutor, a decision contrary to counsel’s advice.
He further stated, “I’ve raised the issue that I did not have a doubt as to my client’s
competency. . . . I do not now express a doubt as to my client’s competency
because I do believe that he understands the nature of the charges. I’ve raised
some concerns about his ability to cooperate with me. However, . . . it’s not the
actuality of cooperation but rather it’s the capacity to cooperate. So those are the
reasons why I’m not declaring a doubt. But I have explored the issue, and I’ve
certainly asked him questions as I believe I’m required to.”
      The court replied, “All right. Thank you. So I’m making no findings with
regard to that.”
      We conclude that appellant has not presented substantial evidence of mental
incompetence. His attorney repeatedly stated that, although appellant had
expressed suicidal thoughts, he understood the nature of the proceedings and was
able to cooperate in his defense. There was no medical testimony, bizarre
behavior, or any other indication that appellant did not understand the nature of the
proceedings or was incapable of assisting counsel in the conduct of the defense in a
rational manner. (See Halvorsen, supra, 42 Cal.4th at p. 401.)
      Because the evidence casting doubt on his competence is less than
substantial, we review the trial court’s decision for an abuse of discretion. (Welch,

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supra, 20 Cal.4th at p. 742.) “‘A trial court’s decision whether or not to hold a
competence hearing is entitled to deference, because the court has the opportunity
to observe the defendant during trial.’ [Citations.]” (People v. Howard (2010) 51
Cal.4th 15, 45.) The transcript indicates that appellant’s responses and conduct
during the proceedings were appropriate. The trial court similarly observed that
appellant, although deeply unhappy with his situation, understood the situation and
was coherent.
      The evidence simply does not show that appellant was “unable to understand
the nature of the criminal proceedings or to assist counsel in the conduct of the
defense in a rational manner. (§ 1367.)” (Halvorsen, supra, 42 Cal.4th at p. 401.)
The trial court therefore did not abuse its discretion in failing to declare a doubt as
to appellant’s competence and hold a hearing pursuant to section 1368.
      Appellant relies on People v. Lightsey (2012) 54 Cal.4th 668, but, unlike the
instant case, the evidence in Lightsey of the defendant’s incompetence was
substantial. His current and former defense counsel asked the court to declare a
doubt regarding his mental competence, and several of his lawyers submitted
declarations expressing doubts about his mental stability and his ability to
understand the nature of the proceedings. (See id. at pp. 685-686, 688, 689-690.)
In addition, one of two medical experts concluded he was not competent to stand
trial. When defense counsel again requested that the court suspend proceedings in
order to evaluate the defendant’s mental competence, the court expressed the belief
that the defendant voluntarily chose not to cooperate with counsel and “merely had
a bad ‘attitude.’” (Id. at p. 690.)
      In sharp contrast to Lightsey, defense counsel here expressed the view that,
although appellant might be , he understood the nature of the proceedings and was
able to cooperate and so was competent to stand trial. As discussed above, there

                                           9
was no medical evidence of his incompetence, and the transcript indicates that he
responded appropriately to the court’s questions and understood the proceedings.
      The trial court did not err in failing to declare a doubt as to appellant’s
competency and hold a hearing pursuant to section 1368.


II.   Abstract of Judgment and Fines
      Appellant contends that the trial court erred in imposing a $5,000 fine
pursuant to section 667.6. We agree.
      Section 667.6 imposes sentence enhancements and allows the imposition of
fines upon defendants convicted of sex offenses who have prior sex offense
convictions. As respondent concedes and the record shows, appellant does not
have a qualifying prior conviction.
      “A sentence is said to be unauthorized if it cannot ‘lawfully be imposed
under any circumstance in the particular case’ [citation], and therefore is
reviewable ‘regardless of whether an objection or argument was raised in the trial
and/or reviewing court.’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875,
887.) “An unauthorized sentence is ‘“subject to judicial correction when it
ultimately [comes] to the attention of the trial court or [reviewing] court”
[citation].’ [Citation.]” (People v. Cates (2009) 170 Cal.App.4th 545, 552.) We
therefore order the $5,000 fine imposed under section 667.6 stricken.
      Respondent contends, and appellant concedes, that the trial court erred in
failing to impose a $40 court security fee per conviction (§ 1465.8, subd. (a)(1))
and a $30 criminal conviction assessment per conviction (Gov. Code, § 70373,
subd. (a)(1)). These fees are mandatory. (People v. Woods (2010) 191




                                          10
Cal.App.4th 269, 272.) We therefore order the judgment modified to impose a
$240 court security fee and a $180 criminal conviction assessment.2


                                   DISPOSITION
             The judgment is modified as follows: (1) the $5,000 fine imposed
under section 667.6 is ordered stricken; (2) a $240 court security fee (§ 1465.8,
subd. (a)(1)) is ordered imposed; and (3) a $180 criminal conviction assessment
(Gov. Code, § 70373, subd. (a)(1)) is ordered imposed. The clerk of the superior
court is directed to prepare an amended abstract of judgment and to forward a copy
to the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                               WILLHITE, Acting P. J.



             We concur:




             MANELLA, J.                       SUZUKAWA, J.




2
       Respondent erroneously calculated the fees based on seven convictions, but
appellant was convicted on six counts.
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