         Filed 12/17/15 P. v Holland CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D068040

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FSB1102728)

MICHAEL FRED HOLLAND,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Michael M. Dest, Duke D. Rouse, Arthur R. Harrison and J. David Mazurek, Judges.

Affirmed as modified and remanded with directions.

         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L Garland,

Assistant Attorneys General, Arlene A. Sevidal and Sean M. Rodriquez, Deputy

Attorneys General, for Plaintiff and Respondent.
       A jury convicted Michael Fred Holland of attempted murder (Pen. Code,1 §§ 664,

187, subd. (a); count 1), assault with force likely to produce great bodily injury (§ 245,

subd. (a)(1); count 2), criminal threat (§ 422; count 3), attempted first degree residential

robbery (§ 211; count 4) and first degree residential burglary (§ 459; count 5). It found

true allegations that as to all counts, Holland personally used a dangerous and deadly

weapon (§ 12022, subd. (b)(1)); as to counts one and four, he personally inflicted great

bodily injury to Sandra Briones (§ 12022.7, subd. (a)); as to counts two and five, he

personally inflicted great bodily injury to Michael Briones (§ 12022.7, subd. (a));2 and,

as to count five, a person was present in the residence within the meaning of section

667.5, subdivision (c)(21).

       In separate proceedings, the trial court found true that Holland had suffered prior

convictions for violating sections 664 and 266 (§ 667.5, subd. (b)) and Vehicle Code

section 2001, subdivision (a). Further, he had suffered prior serious or violent felonies as

a juvenile. (§§ 245, subd. (a)(1), 12022.70, 211.) It sentenced Holland to a determinate

term of 19 years and an indeterminate term of 125 years to life.

       Holland contends the trial court erroneously (1) found him competent to stand trial

despite his mental health problems, thus violating his state and federal due process rights;

(2) denied his motion to relieve appointed counsel under People v. Marsden (1970) 2

Cal.3d 118 (Marsden); (3) allowed him to represent himself at trial, thus depriving him of

1      Statutory references are to the Penal Code unless otherwise stated.

2      We will refer to the Brioneses by their first names to avoid confusion.

                                              2
his constitutional rights to due process and the effective assistance of counsel as set forth

in Faretta v. California (1975) 422 U.S. 806 (Faretta); (4) limited his closing argument

in violation of his constitutional right to self representation; (5) instructed the jury with

CALCRIM No. 362 on consciousness of guilt from false statements and CALCRIM No.

372 regarding flight; (6) failed to instruct the jury on the elements of a criminal threat

under section 422, which is unconstitutionally vague; (7) used his juvenile adjudication

as a prior serious or violent felony conviction in violation of his due process and jury trial

rights; (8) failed to stay the sentence on either the attempted robbery or burglary count

under section 654; and (9) failed to stay the section 12022.7 enhancement on either the

attempted murder (count 1) or the attempted robbery (count 4). Finding merit in the last

contention only, we stay the great bodily harm enhancement on count 1. We otherwise

affirm the judgment and remand with directions set forth below.

                                 PROCEDURAL BACKGROUND

       On June 22, 2011, the People filed an amended complaint charging Holland with

the crimes listed above. Approximately a week later, Deputy Public Defender Rodrigo

Curbelo expressed doubt about Holland's competency to stand trial; therefore, Judge Dest

suspended proceedings and ordered a mental evaluation of Holland under section 1367.

Judge Dest ordered two subsequent mental health evaluations of Holland.

       On November 2, 2011, Judge Rouse denied both Holland's motion to represent

himself, and his motion to relieve Deputy Public Defender Rodrigo Curbelo. At the

preliminary hearing held that day, Deputy Public Defender Jason Oei represented

Holland.

                                               3
       On November 10, 2011, Judge Mazurek granted Holland's motion to represent

himself.

       On January 5, 2012, trial commenced, with Judge Rouse presiding. Holland

represented himself at all stages of trial, from voir dire to closing arguments. He cross-

examined all of the seven witnesses the People called. On January 19, 2012, the jury

convicted Holland.

       On January 23, 2012, at Holland's request, the court appointed attorney Scott

Brown to represent him in bifurcated proceedings regarding his prior convictions.

       On September 21, 2012, Judge Rouse stated at a hearing that based on his doubts

regarding Holland's mental competency, he had appointed a medical commission. Dr.

Jenkins therefore evaluated Holland and concluded he was mentally competent to be

tried. Defense counsel H. Charles Smith told the court, "If the court wants to go ahead

and find [Holland] competent, that's fine too." The court made a competency finding and

the prosecutor and defense counsel submitted on that finding. Judge Rouse also granted

Holland's motion to represent himself.

       On December 3, 2012, Judge Harrison denied Holland's motion for an investigator

he sought to assist him in preparing a new trial motion.

       On February 8, 2013, Judge Rouse denied Holland's motion for a new trial and

pronounced judgment.




                                             4
                                  FACTUAL BACKGROUND3

Prosecution Case

         On the morning of June 15, 2011, Sandra awoke and found Holland—who she did

not know and who had no right to be there—in her home located in the city of Highland,

in San Bernardino County. She told him he needed to leave, and tried to get past him to

reach the front door. Holland said, "Isn't this Greg's house? I thought this was Greg's

house." Holland walked alongside her and said, "Fuck it, where is the money, lady? I

want the money." Holland grabbed her shoulders and started pulling her back. She hit

him. He lunged at her with a knife, slammed her against the refrigerator and on a table.

He choked her as he pushed her on a couch. She blacked out and thought she was going

to die. When she revived, she heard Holland screaming at her to give him some money.

Sandra's husband, Michael, arrived home shortly afterwards and she yelled that Holland

was choking her. Michael hit Holland, and Sandra managed to leave the house. Sandra

called 911. She suffered a stab wound to her right arm, a finger cut, and abrasions and

scratches to her nose, face and legs. Sandra identified Holland in a lineup and again at

trial.

         Michael testified that he returned home from work at around 7:45 a.m. on June 15,

2001. He entered the house and heard Sandra say, "Mike, Mike, he choked me out."

Michael saw Holland's hand around Sandra's throat. Michael was afraid, thinking



3      We grant Holland's request to take judicial notice of his writ of habeas corpus
petition.

                                             5
Holland had brutally attacked Sandra. He was about to punch Holland, who held a knife.

Holland looked at him and said, "You come any closer, she dies." Michael thought

Holland would carry out his threat to kill Sandra. Michael saw blood on Sandra's shirt

and went to the kitchen to grab a knife. In the ensuing fight, Michael punched Holland,

who kicked Michael in the chest. Holland punched Michael in the face. Holland threw

his jacket at Michael and ran out of the house. Michael chased Holland, who fled.

Michael suffered a broken hand and a cracked tooth.

       San Bernardino County Deputy Sheriff Aaron Halloway arrived on the scene.

Holland saw him and tried to flee, but after a brief chase the deputy detained Holland.

Holland gave the deputy a wrong name and date of birth.

       Michael identified Holland in a field showup that morning. Holland had wounds

consistent with his having attacked someone with a knife, and blood was on his clothing.

A backpack containing Holland's bank deposit slip was found in the Brioneses' home.

Defense Case

       Holland did not testify at trial. In closing arguments he presented his theory of the

case that Sandra was caught in the act of having consensual sex with him: "[Michael

Briones] snuck inside the house, see [Sandra and me] on the couch together, see the

pantyhose. There's nothing to talk about. It's absolutely nothing to talk about. He




                                             6
already hollered, 'What the F is going on?' That's the famous words of Ron Isley coming

home to see that his woman is cheating."4

                                          DISCUSSION

                                                  I.

       Sufficient Evidence Supports the Trial Court's Finding that Holland was Mentally

                                 Competent to Stand Trial

       Holland contends insufficient evidence supported the court's finding he was

competent to stand trial; therefore, the court violated his constitutional due process rights

by making that finding.

A. Background5

       As noted, three psychologists evaluated Holland for mental competency to stand

trial. First, in a July 29, 2011 report, psychologist Christopher Michael concluded that

4      Holland summarizes his defense in his opening brief: "[I]n his [closing] argument,
[he] presented an alternate scenario in which he may have been invited into the residence
by Sandra for a romantic interlude and was attacked by a jealous husband."

5       Following oral argument, we requested the parties to brief the issue of whether the
appellate briefs filed under seal should be unsealed. Having reviewed their letter briefs,
we order unsealed those appellate briefs under California Rules of Court, rule 8.46(e)(3).
The appellate court order sealing the briefs did not set forth the facts establishing a basis
for so doing under California Rules of Court, rule 2.550(c)-(e). The trial court had not
ordered Holland's mental health records prepared under Penal Code section 1368 to be
filed under California Rules of Court, rule 2.550(c)-(e). Further, those records, which
were the basis for the request for ordering the appellate briefs sealed, are presumptively
public documents. (Advisory Com. com. foll. Cal. Rules of Court, rule 4.130 ["The
expert reports, unless sealed under rule 2.550, are publicly accessible court
documents."].) On appeal, Holland has put his mental health at issue; therefore, applying
the criteria set forth in rule 2.550(c)-(e), we conclude that no overriding interest exists
that overcomes the right of public access to the information contained in the mental
health evaluations.
                                              7
although Holland was sufficiently mentally competent to understand the nature of the

criminal proceedings, he was not able to assist his attorney in the preparation of his own

defense: "Finally, and likely as a result of his delusional convictions, Mr. Holland stated

that he intended to serve as his own counsel. This path is inadvisably risky for most

persons—let alone persons suffering from delusions that have incorporated the legal case

itself." The court decided Dr. Michael's report "appear[ed] to be ambiguous" and

therefore ordered another mental evaluation of Holland.

       Second, in a September 7, 2011 report, psychologist Robert Suiter concluded

Holland was competent to stand trial: "Despite his psychotic symptoms, Mr. Holland

was able to describe quite adequately the nature of the current charges, the potential

penalties if found guilty, and the parameters of a plea bargain. He was able to describe

adequately the roles of the principal court officers and the adversarial nature of the

proceedings. He described he did not trust his attorney, although mainly as he perceives

his attorney has not spent sufficient time with him as there was no indication he considers

there was any type of conspiracy against him with the court system. In total, his

presentation was one of having some unrealistic expectations of his attorney rather than

any dissatisfaction with him due to paranoid ideation. In that vein, Mr. Holland was also

able to describe quite adequately how he would cooperate with his attorney in presenting

his defense as it is this examiner's opinion he is able to do so in a rational manner."

       Third, in an October 3, 2011, report, psychologist Tseday Aberra concluded

Holland did not appear to have a "diagnosable primary psychiatric disorder," and he was

competent to stand trial: "Mr. Holland's participation during this clinical interview and

                                              8
administration of the R-CAI [Competency Assessment Instrument, Revised] was

satisfactory. He understood the nature of his charges and has the ability to fully

understand and appreciate the purpose of the court proceedings being taken against him

at the present. Mr. Holland also has the ability to cooperate rationally with his counsel in

presenting a defense."

       Holland's public defender did not oppose the two psychologists' finding of

competency: "I would go ahead and submit on those reports and ask the court to set dates

within the statutory time." The prosecutor and defense counsel stipulated to those two

psychological reports. The court concluded based on the two most recent psychological

evaluations that Holland was mentally competent to stand trial, and his mental health had

"progressed in the last several months."

B. Legal Principles

       State law and federal due process prohibit the trial or conviction of a mentally

incompetent criminal defendant. (People v. Dunkle (2005) 36 Cal.4th 861, 885,

disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;

§ 1367, subd. (a).) "A defendant is mentally incompetent" if a mental disorder prevents

the defendant from understanding "the nature of the criminal proceedings" or assisting

counsel "in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) Section

1368 sets forth the procedure for implementing section 1367 protections.

       The trial court plays a critical role in safeguarding the defendant's due process

right not to be tried while incompetent. It must suspend trial proceedings and conduct a

competency hearing whenever substantial evidence exists, that is, evidence which raises a

                                             9
reasonable or bona fide doubt concerning a defendant's competence to stand trial.

(People v. Rogers (2006) 39 Cal.4th 826, 847.) Such evidence may be in the form of

expert testimony but may also consist in whole or in part of " 'a defendant's irrational

behavior, his demeanor at trial, and any prior medical opinion on competence to stand

trial,' " all of which are relevant and any one of which standing alone may be sufficient.

(People v. Ary (2004) 118 Cal.App.4th 1016, 1024.)

       Because a court must "consider all of the relevant circumstances" in determining

whether there is substantial evidence of incompetency, defense "counsel's opinion is

undoubtedly relevant." (People v. Howard (1992) 1 Cal.4th 1132, 1164) However,

"[t]he opinion of counsel, without a statement of specific reasons supporting that opinion,

does not constitute substantial evidence." (Cal. Rules of Court, rule 4.130(b)(2).)

       Once the defendant is found "mentally competent," the criminal process resumes.

(§§ 1370, subd. (a)(1)(A), 1372, subd. (a)(1).) " 'Even when a defendant is competent at

the commencement of his trial, a trial court must always be alert to circumstances

suggesting a change that would render the accused unable to meet the standards of

competence to stand trial.' " (People v. Lightsey (2012) 54 Cal.4th 668, 690.)

       On appeal, "[i]n resolving the question of whether, as a matter of law, the evidence

raised a reasonable doubt as to defendant's mental competence, we may consider all the

relevant facts in the record." (People v. Young (2005) 34 Cal.4th 1149, 1217.) The

evidence is viewed in the light most favorable to the finding. (People v. Dunkle, supra,

36 Cal.4th at p. 885.) "Evidence is substantial if it is reasonable, credible and of solid

value." (Ibid.)

                                             10
C. Analysis

       We conclude the trial court did not err in finding Holland was mentally competent

to stand trial. As set forth above, although Dr. Michael concluded Holland was not

mentally competent to stand trial, Drs. Suiter and Aberra subsequently evaluated Holland

and concluded he was mentally competent to stand trial. The court reviewed those

findings and concluded Holland was competent. Defense counsel stipulated to the

reports and did not object to this finding of competency. Among the most important

factors courts consider in assessing whether a defendant is competent are the opinion and

observations of defense counsel. (See Medina v. California (1992) 505 U.S. 437, 450

["defense counsel will often have the best-informed view of the defendant's ability to

participate in his defense"].)

       After Holland was permitted to represent himself, different judges presided over

different motions in which Holland appeared, and Holland was represented by counsel at

one point; yet, there is no evidence of " 'a substantial change of circumstances or . . . new

evidence' casting serious doubt [on the finding that defendant was competent]." (People

v. Jones (1991) 53 Cal.3d 1115, 1153.) Neither the judges nor counsel sought a further

mental competency test for Holland until after the verdict was entered. Then, a

psychologist again found Holland was mentally competent to participate in the court

proceedings, and thereafter the court sentenced Holland.

       Holland argues in his reply brief: "[W]hile superficially seeming to understand

the nature of the charges against him, he was obsessed with the prior conviction

allegations and the prosecution's failure to produce a '[section] 995[, subdivision] (b)

                                             11
packet.' . . . Despite convincing evidence to the contrary, Holland maintained that he

could prove that he did not have a criminal record. . . . Seemingly without recognizing

the inherent contradiction, he also contended that the prosecution's proceeding on the

prior conviction allegations would violate double jeopardy." Courts have recognized that

" ' " '[m]ore is required to raise a doubt [of competence] than mere bizarre actions

[citation] or bizarre statements [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.' " ' " (People v. Murdoch (2011) 194

Cal.App.4th 230, 236-237.) Here, this reference to Holland's bizarre actions, without

more, is insufficient evidence to establish that he was not mentally competent to represent

himself.

       Our review of this case is aided by the trial court's summary of its observation of

Holland during the trial. Specifically, at a hearing scheduled for Holland's new trial

motion, Holland claimed he had not timely filed a motion for a new trial because he was

not mentally competent. The court disputed that claim, concluding Holland had not

timely brought the motion. It proceeded to make a finding regarding Holland's

competency during the entire trial, telling Holland: "You've played the competency rule.

You played it three or four times during the trial. Every time you pretended and acted

like you were incompetent, we suspended the proceedings, we had a medical

commission, and they all come back, 'he's competent.' And you also argue that 'I was

competent' and now when you think it's to your advantage, suddenly you're incompetent

again." The court added, "You're acting perfectly rationally today for the record." In

                                              12
effect, the court found Holland was malingering. Reviewing courts must "defer largely to

the trial court's discretion" and uphold the trial court's ruling if supported by substantial

evidence. (People v. Johnson (2012) 53 Cal.4th 519, 531 (Johnson).) In light of the

whole record, we conclude sufficient evidence supported the trial court's finding that

Holland was mentally competent to stand trial.

                                                   II.

                  The Court Did Not Err in Denying Holland's Marsden Motion

       Holland contends the trial court abused its discretion in denying his Marsden

motion, thus violating his state and federal constitutional rights to counsel.

A. Background

       On November 2, 2011, the court held a Marsden hearing to consider Holland's

request to relieve appointed counsel. Holland told the court that his counsel was "trying

to play me crazy. Trying to call me ignorant." Holland said his attorney was conspiring

to keep him falsely imprisoned by not filing appropriate motions. Holland added his

counsel "knows good and well I should have been out of jail and the [district attorney]

was trying to make a deal with me." Holland also stated his counsel "called [him] a

nigger."6

       Defense counsel responded that he would never use that ethnic slur. Further, he

disagreed with the motions Holland wanted him to file. Counsel also said Holland had




6      The probation report lists Holland's ethnicity as Black.
                                              13
requested that he offer the district attorney that he would plead guilty to a trespassing

charge in exchange for time served. The district attorney rejected that offer.

       The court ruled the attorney was responsible for trial tactics, including deciding

what motions to file. The court also told Holland, "No matter what your offer is, counsel

cannot force the District Attorney to take it." The court found no basis to relieve

appointed counsel.

B. Legal Principles

       "Marsden motions are subject to the following well-established rules. ' " 'When a

defendant seeks to discharge his appointed counsel and substitute another attorney, and

asserts inadequate representation, the trial court must permit the defendant to explain the

basis of his contention and to relate specific instances of the attorney's inadequate

performance. [Citation.] A defendant is entitled to relief if the record clearly shows that

the first appointed attorney is not providing adequate representation [citation] or that

defendant and counsel have become embroiled in such an irreconcilable conflict that

ineffective representation is likely to result [citations].' [Citations.]" ' [Citation.] Denials

of Marsden motions are reviewed under an abuse of discretion standard. [Citation.]

Denial 'is not an abuse of discretion unless the defendant has shown that a failure to

replace the appointed attorney would "substantially impair" the defendant's right to

assistance of counsel.' " (People v. Barnett (1998) 17 Cal.4th 1044, 1085-1086.) A

defendant who does not make this showing is not entitled to substitute counsel. (People

v. Smith (1993) 6 Cal.4th 684, 696.)



                                              14
C. Analysis

        Here, the court did not err in concluding that it was within the attorney's purview

to make tactical decisions about which motions to file. A difference of opinion between a

defendant and his attorney over trial tactics does not place a court under a duty to appoint

another attorney. (People v. Lucky (1988) 45 Cal.3d 259, 281-282.) The court also did

not err in pointing out that the district attorney was not required to accept the plea deal

Holland sought. In sum, there was no error. Holland's allegations were not sufficient to

show that his right to counsel would be substantially imperiled without a substitution of

counsel. (People v. Walker (1976) 18 Cal.3d 232, 238.) "The transcript clearly indicates

that the trial judge made inquiry of defendant and listened to his complaints. Nothing

more was required under Marsden." (People v. Williamson (1985) 172 Cal.App.3d 737,

745.)

                                                   III.

                   The Court Did Not Err in Granting Holland's Faretta Motion

        Holland contends the trial court allowed him to represent himself "[d]espite [his]

inability to appreciate the validity of the charges against him and his failure to perceive

any viable legal or factual defense, as well as the court's own belief that self-

representation was an unwise choice." Holland specifically contends: "A review of the

record demonstrates [his inability] to represent himself effectively. While [he] was

capable of reproducing motions and pleadings that were superficially proper in form and

appearance[,] the content of those motions and the primary theory of his defense

demonstrate that he was suffering from delusions and paranoia that distorted his

                                              15
perception of reality and precluded him from defending himself in a manner sufficient to

respond to the serious charges against him." Holland attempts to bolster his arguments

with citations from the psychologists' evaluations of his mental competency to stand trial.

He further contends "the trial court appears to have believed that [his] competency to

stand trial equated to competency to represent himself."

A. Background

       On November 10, 2011, the court extensively questioned Holland about his

request for self representation, initially warning him, "Do you understand that self-

representation is almost always a bad choice?" and "It's like trying to do surgery on

yourself. Would you try to do that?" Holland replied that he understood.

       The court specifically asked Holland a series of questions aimed at showing the

disadvantages of self-representation: "Do you understand that you're going to have to

abide by or live by the same rules of evidence and the same rules of procedure that the

[district attorney] is going to have to abide by?" "And do you understand that because

the same rules of evidence apply—even though you are not an attorney, haven't been to

law school, probably don't know the Evidence Code—if you don't object due to

something that you have not studied or don't understand, inadmissible evidence will come

in . . . ?" "You're on your own basically. All right? You're not going to receive any

special treatment if you file any pretrial motions or motions during the trial. Do you

understand that?" "Do you understand you'll be up against the district attorney who has

graduated from college, graduated from law school and has probably tried hundreds of

more cases than you have?" "Do you understand if you represent yourself, you cannot

                                            16
raise your own incompetence as grounds for appeal?" (Italics added.) "Do you

understand that the district attorney has a whole staff—a whole building full of people

that can help him and you're not going to have that same staff to help you with your

case?" "Do you understand that if we get close to the trial date and—because the People

have a right to go to trial, just like you do—that if you decide close to the trial date that

you really can't handle it, the Court does not have to relieve you? I can make you go to

trial yourself?" "Do you understand if you misbehave and you are in pro per, I can have

you removed from the courtroom and the trial can proceed without you being here?" "Do

you understand that when you ask questions of the jurors, of the witnesses, or you argue

to the jury, you run the risk or the danger of the jury reading into what you're saying and

maybe presuming that you have knowledge of events or that you've tipped your hands or

indicated in some way that you were present for these crimes? That would not be a

danger if you were represented by counsel. You might say something that the jury would

think, 'Oh well, if he says this, he must have been there.' " (Italics added.)

       Holland responded to all of the above questions in the affirmative, indicating he

understood the court's warnings. The court asked him several questions regarding the

charges against him, his possible punishment, and the trial court procedures to be

followed. Holland responded appropriately. The court asked about Holland's educational

background. Holland replied he "graduated from college course at the age of, like, 17

years old." Holland explained his degree was "for independent living. Like I said, I got

emancipated. By the time I turned 17, I had two trades: One for business management,

another for technician. I was already living on my own."

                                              17
       The trial court ruled: "[Holland] is competent. He's literate. He is fully informed

of his right to counsel. He can express himself . . . maybe not to the extent that a lawyer

can, but he is capable of making his point, at least to the court. [¶] The court finds that

[Holland] has made a voluntary, intelligent, and understanding [waiver] of his right to be

represented by counsel. . . . [¶] The defendant has—understands the nature of the

charges. He understands the facts. He is aware of the possible punishments. And I will

allow the defendant to proceed in representing himself."

       Even after that ruling, the court gave Holland a final warning: "I would just

suggest that you think very long and hard about representing yourself. I know you want

to, but it's a lot of charges. It's a complicated case. The potential consequences for you

are you never see the light of day as a free person again. So it's a very serious thing. So

think about it. I granted you the right to represent yourself. I will let you change your

mind on [December 2, 2011] but probably after that I won't." On December 2, 2011,

Holland declared himself to be "ready for trial." He did not refer to the court's previous

offer to reconsider his decision to represent himself.

B. Legal Principles

       The Sixth Amendment to the United States Constitution gives criminal defendants

the right to represent themselves. (Faretta, supra, 422 U.S. at p. 807.) A knowing and

intelligent waiver of the right to counsel is required before a criminal defendant is

allowed to represent himself. (People v. Noriega (1997) 59 Cal.App.4th 311, 319.) The

defendant should be made aware of the dangers and disadvantages of self-representation

so the record shows he is making an informed choice with his eyes wide open. (Ibid.)

                                             18
The purpose of this requirement is to determine whether the defendant in fact understands

the significance and consequences of his decision and whether that decision is voluntary.

(Ibid.) On appeal the test is not whether specific warnings or advisements were given.

Instead, we examine the record as a whole to determine whether the defendant

understood the disadvantages of self-representation, including the risks and complexities

of his case. (Ibid.) Our examination of the record is de novo. (People v. Koontz (2002)

27 Cal.4th 1041, 1070.)

       In Indiana v. Edwards (2008) 554 U.S. 164 (Edwards) the United States Supreme

court recognized the existence of "gray-area defendants," who are mentally competent to

stand trial but suffer from severe mental illness rendering them incompetent to conduct

trial proceedings by themselves. (Id. at pp. 174, 177-178.) In such cases the United

States Constitution gives states the option of insisting upon representation by counsel.

(Id. at pp. 177-178.)

       Edwards did not hold that due process requires a higher standard of mental

competence for self-representation than for trial with counsel; it only allows states to

impose a higher standard without violating Faretta. (People v. Taylor (2009) 47 Cal.4th

850, 877-878.) In People v. Johnson, supra, the California Supreme Court accepted

Edwards's invitation and held that trial courts have discretion to deny a defendant's

Faretta motion consistent with the holding in Edwards. (Johnson, at p. 528.) Declining

to adopt a specific standard, Johnson held that trial courts may exercise their discretion to

deny self-representation if the "defendant suffers from a severe mental illness to the point



                                             19
where he or she cannot carry out the basic tasks needed to present the defense without the

help of counsel." (Id. at p. 530.)

       "[W]e have held that a trial court may not measure a defendant's competence to

waive his right counsel by evaluating the defendant's 'technical legal knowledge'

[citation] or his ability to represent himself [citation]. The right to self-representation

may be invoked by any defendant competent to stand trial." (People v. Doolin, supra, 45

Cal.4th at p. 454.)

C. Analysis

       Having examined the entire record of proceedings, we conclude the trial court

abundantly explained, and Holland clearly understood, the disadvantages of self-

representation, including the risks and complexities of his case. The trial court

additionally warned Holland he would have no basis to raise an appellate claim that he

was incompetent to represent himself. We believe the court did as much as reasonably

possible to dissuade Holland from self-representation. (See People v. Taylor, supra, 47

Cal.4th at p. 891 [record clearly showed defendant chose self-representation with his eyes

open to the risks and disadvantages it entailed, the nature and seriousness of the charges

he faced, and his right to continue being represented by appointed counsel throughout

trial].) Accordingly, we conclude Holland made an intelligent waiver of his right to

counsel. The denial of self-representation must not be done lightly, or for the purpose of

increased efficiency or even fairness. (Johnson, supra, 53 Cal.4th at p 531.)

       Holland contends he was incompetent to represent himself at trial as shown by his

conduct at the Faretta hearing, when he claimed to be a college graduate, but later stated

                                              20
he had two trades, one for business management another for technician. The California

Supreme Court addressed a similar situation in People v. Koontz (2002) 27 Cal.4th 1041

and found such claims by the defendant did not undermine a finding of competency:

"Defendant further asserts that he made 'delusional' claims, such as an assertion that he

possessed an Associate of Arts degree and had attended the University of California at

Davis, that the trial court—aware that defendant had spent most of his adult life in

prison—should have realized indicated he was mentally unfit to stand trial. But a

proclivity to boast or exaggerate, a tendency to digress in argument, a shaky grasp of the

legal concept of relevancy, even a certain tangentiality in speech patterns does not

necessarily mean that a defendant lacks a rational and factual understanding of the

proceedings, the basic criterion for competency." (Koontz, at p. 1073; see Dusky v.

United States (1960) 362 U.S. 402.)

       The same analysis applies to Holland's claim that at the Faretta hearing he

described the charges against him as "bogus" and claimed the People did not have a

"[section] 995[, subdivision] (b) packet." The defense claims, "Despite what proved to be

clear evidence to the contrary, [he] insisted that he would prove that he did not have a

record." He also claimed double jeopardy. Holland also alludes to his claim during the

Faretta hearing that he "focused on the prosecution's lack of a weapon and the absence of

an injury report. Ignoring the eyewitness identification and his detention near the crime

scene, [he] noted that without the weapon, the prosecution had been unable to obtain any

fingerprint evidence. . . . [He] then proceeded to characterize the case as 'contaminated'

and 'nothing but double jeopardy.' . . . He also went on to state that the prosecution's

                                             21
case was 'all hearsay.' . . . [¶] When the lower court asked about any legal or factual

defenses [he] had, all he could say was 'so many ways this case can be beat . . . . ' . . . In

responding to a question about his ability to pick a jury, Holland stated, 'it would be a

waste of time. If you want to go to trial, it will be a waste of time.' "

       Holland argues: "A review of the record demonstrates [his inability] to represent

himself effectively. While [he] was capable of reproducing motions and pleadings that

were superficially proper in form and appearance, the content of those motions and the

primary theory of his defense demonstrate that he was suffering from delusions and

paranoia that distorted his perception of reality and precluded him from defending

himself in a manner sufficient to respond to the serious charges against him." The

California Supreme Court's response to a similar claim raised in Koontz, supra, 27

Cal.4th at p. 1070, is applicable here: "That defendant later took missteps in his self-

representation . . . appears to reflect his lack of legal knowledge, not necessarily mental

illness or incompetency."

       Holland claims with no citation to the record: "Instead of denying [his] request for

self-representation, something the trial court should have done based upon the

psychological reports and its own observation, the trial court ultimately granted the

Faretta motion, presumably believing that was its only option." But the assertion that

the trial court believed it had no other options is belied by the trial court's own findings

Holland was competent to represent himself at all times during trial and was in fact

malingering. Specifically, at the new trial motion the court for a second time stated its

perception of Holland's mental competence: "Record should also reflect that during the

                                              22
course of all of the proceedings in this case in which this court has been involved, Mr.

Holland for the most part conducted himself within the rules, and I know basically that he

has the ability to do that if he chooses to do so. I have found—I know at least three times

he has acted out and one other court and this court has sent him for a [section] 1368

evaluation. On each occasion he has been found competent to stand trial and to proceed.

[¶] This court has found in the past that he is competent, and I find that he is competent

today. It seems his habit whenever he seems thing[s] are not going his way, he decides

that the best thing for him to do is act out and try to pretend like he has sanity problems

and things will be delayed."

       " 'An appellate court is in no position to appraise a defendant's conduct in the trial

court as indicating insanity, a calculated attempt to feign insanity and delay the

proceedings, or sheer temper.' " (People v. Danielson (1992) 3 Cal.4th 691, 727.) "As

with other determinations regarding self-representation, we must defer largely to the trial

court's discretion." (Johnson, supra, 53 Cal.4th at p. 531.) The trial court's ruling

regarding a defendant's competence will be upheld if supported by substantial evidence.

(Ibid.) Such deference is especially appropriate when, as here, the same judge has

observed the defendant on numerous occasions. (Ibid.) Here, we defer to the court's

observations of Holland's conduct during trial.

                                                  IV.

                  The Court Did Not Err by Limiting Holland's Oral Argument

       Holland contends the trial court prejudicially erred by violating his right to self-

representation because during oral argument it prevented him from alluding to Nelson

                                             23
Mandela's false incarceration. He specifically argues: "Just as the defense may argue

that convictions based on mistaken identification occur and may cite examples, Holland

also should have been permitted to note a prominent case where an individual was falsely

accused and unjustly imprisoned as the result of governmental overreach and oppression.

While on the surface, Nelson Mandela's political imprisonment in South Africa may not

bear much resemblance to a prosecution for attempted murder and burglary in southern

California, Holland should have been allowed to draw an analogy between the two since

he also claimed to be the victim of false imprisonment, misconduct by law enforcement,

and a corrupt prosecution."

A. Background

       During closing argument, one of Holland's defense theories was that he was

falsely imprisoned: "It's a crying shame that there's no evidence against me, and this

[district attorney] is going to—still taking me to trial like this. That's crazy. False

imprisonment is what it is." Holland also argued to the jury: "All of this injury, talking

about [great bodily injury] and all this man, all this is propaganda. Man, it never should

have went this far. False imprisonment. All this is false imprisonment, false

imprisonment. Should never went this far. This is real talk. They trying [sic] to ruin my

life. That's why I went proper [sic], because they trying [sic] to ruin my life." Holland

argued to the jury that the police "[k]nowing that they put me in jail falsely instead of

simply letting me out of jail, they want to plant evidence on me." Holland further argued

to the jury that the police did not turn on their body cameras or recording devices: "They

supposed [sic] to have it on, period. They supposed [sic] to have that on. No matter what

                                              24
they say, they know I'm falsely imprisoned. The truth—you can't hide the truth. The

truth going [sic] to come out regardless. False imprisonment that's all it is, nothing, no,

nothing more than false imprisonment."

       The trial court more than once warned Holland he was repeating himself during

his closing argument and he should conclude his argument. At one point the court

informed him he had 15 minutes, and then 5 minutes, to argue. Afterwards, Holland

argued to the jury: "Okay. I can sum all these charges up—false imprisonment, they

planted evidence on me, and I proved it. I can sum all these charges up that I'm truly

innocent and in L.A. County jail, there's 15,000 inmates." The court sustained an

objection to that assertion, telling Holland, he was "wasting [his] last minute." Holland

then asked the judge in open court, "Can I talk about Nelson Mandela is in jail [sic] for

25 years falsely?" The court denied the request: "Nelson Mandela has nothing to do with

this case, Mr. Holland. Argue the evidence in this case."

B. Legal Principles

       The California Supreme Court has held that a judge in a criminal case "must be

and is given great latitude in controlling the duration and limiting the scope of closing

summations." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) "Counsel's

summation to the jury must be based upon facts shown by the evidence or known

judicially. [Citation.] Counsel may refer the jury to nonevidentiary matters of common

knowledge, or to illustrations drawn from common experience, history, or literature

[citation], but he may not dwell on the particular facts of unrelated, unsubstantiated

cases." (People v. Mendoza (1974) 37 Cal.App.3d 717, 725 [concluding the trial court

                                             25
did not err in denying defense request to read newspaper reports about unrelated cases in

which children were reported to have fabricated accusations against innocent men].)

C. Analysis

       Here, understood in context, the court was focused on time management when it

decided to exclude Holland's proposed reference to Nelson Mandela. The court

previously had remarked Holland was wasting his last remaining minute of argument.

The court was not seeking to infringe Holland's right to make proper arguments. And it

did not abuse its discretion in restricting Holland's closing argument. Rather, the court

had given Holland repeated opportunities to argue to the jury that he was falsely

imprisoned, and one more argument on that topic, this time invoking Nelson Mandela,

would have been merely cumulative.

                                                 V.

              The Standard Consciousness of Guilt Instructions Are Not Erroneous

       Holland contends CALCRIM Nos. 362 and 372 consciousness of guilt instructions

"embody irrational permissive inferences in violation of due process."

A. CALCRIM No. 362

       CALCRIM No. 362 deals with false statements evincing consciousness of guilt.

Holland contends his "allegedly false statement" refers to his question to Sandra upon

being detected in her house: "Is this Greg's house?"

       Without an objection from Holland, the court instructed the jury under CALCRIM

No. 362 that "[i]f the defendant made a false or misleading statement before this trial

relating to the charged crime, knowing the statement was false or intending to mislead,

                                            26
that conduct may show he was aware of his guilt of the crime and you may consider it in

determining his guilt." The court's instruction also included the following limiting

language contained in CALCRIM No. 362: "If you conclude that the defendant made the

statement, it is up to you to decide its meaning and importance. However, evidence that

the defendant made such a statement cannot prove guilt by itself."

       "A permissive inference violates the Due Process Clause only if the suggested

conclusion is not one that reason and common sense justify in light of the proven facts

before the jury." (People v. Mendoza (2000) 24 Cal.4th 130, 180.) In People v. Howard

(2008) 42 Cal.4th 1000 the California Supreme Court rejected the contention CALCRIM

No. 362, and its predecessor CALJIC No. 2.03,7 invite the jury to draw irrational and

impermissible inferences with regard to a defendant's state of mind at the time the offense

was committed. (Howard, supra, at p. 1021; see also People v. McGowan (2008) 160

Cal.App.4th 1099, 1103-1104 (McGowan) ["The California Supreme Court has

consistently upheld CALJIC No. 2.03 against various and sundry attacks." "Although

there are minor differences between CALJIC No. 2.03 and CALCRIM No. 362 [citation],

none is sufficient to undermine our Supreme Court's approval of the language of these

instructions."].) We are bound to follow the decisions of the California Supreme Court.

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)



7      CALJIC No. 2.03 provided: "If you find that before this trial the defendant made
a willfully false or deliberately misleading statement concerning the crime or crimes for
which he is now being tried, you may consider that statement as a circumstance tending
to prove a consciousness of guilt. However, that conduct is not sufficient by itself to
prove guilt, and its weight and significance, if any, are for you to decide."
                                            27
B. CALCRIM No. 372

       Without objection, the trial court instructed the jury with CALCRIM No. 372: "If

the defendant fled immediately after the crime was committed, that conduct may show

that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to

decide the meaning and importance of that conduct. However, evidence that the

defendant fled cannot prove guilt by itself." This instruction and its substantially

identical predecessor, CALJIC No. 2.52, are authorized in appropriate cases by section

1127c, which requires the court to instruct the jury in any case in which evidence of flight

of a defendant is relied upon as tending to show guilt that, if flight has been proved, the

jury may infer consciousness of guilt but that such flight alone "is not sufficient in itself

to establish his [or her] guilt. . . . The weight to which such circumstance is entitled is a

matter for the jury to determine." (§ 1127c.)

       Holland contends that, under the circumstances of this case, CALCRIM No. 372

unconstitutionally permits the jury to infer guilt from flight. In particular, he argues this

instruction "tells jurors that the defendant's flight may be considered by them in

determining guilt. This instruction violates due process because it equates flight with

guilt rather than a mere consciousness of guilt." Holland adds in his reply brief that

"consciousness of guilt suggests a more generalized perception of guilt or responsibility,

such as having a guilty conscience, which is distinguishable from an acknowledgement or

acceptance of actual guilt for a criminal offense. The term 'aware of his guilt' is more

specific and connotes an actual internal recognition that one is guilty of a crime."



                                              28
       This precise contention has been rejected by People v. Hernandez Rios (2007) 151

Cal.App.4th 1154, at pages 1157-1159. We find this case to be persuasive and follow it.

The California Supreme Court squarely rejected a challenge to the predecessor of

CALCRIM No. 372, CALJIC No. 2.52. (People v. Mendoza, supra, 24 Cal.4th at pp.

179-181.) Hernandez Rios found no significant difference between the phrasing of the

two instructions and held that CALCRIM No. 372 passes "constitutional muster."

(Hernandez Rios, at pp. 1158-1159.)

                                                  VI.

            Absence of Instruction on Elements of a Criminal Threat Was Not Error

       Holland contends the trial court prejudicially failed to instruct the jury on the

elements of a criminal threat.

A. Background

       The court instructed the jury with CALCRIM No. 1300:

       " The defendant is charged in Count 3 with having made a criminal threat in

violation of Penal Code section 422.

       "To prove that the defendant is guilty of this crime, the People must prove that:

       "1. The defendant willfully threatened to unlawfully kill or unlawfully cause great

bodily injury to Sandra Briones;

       "2. The defendant made the threat orally;

       "3. The defendant intended that his statement be understood as a threat;




                                             29
       "4. The threat was so clear, immediate, unconditional, and specific that it

communicated to Michael Briones a serious intention and the immediate prospect that the

threat would be carried out;

       "5. The threat actually caused Michael Briones to be in sustained fear for his own

safety or for the safety of his immediate family;

       "AND

       "6. Michael Briones' fear was reasonable under the circumstances.

       "Someone commits an act willfully when he or she does it willingly or on purpose.

       "In deciding whether a threat was sufficiently clear, immediate, unconditional, and

specific, consider the words themselves, as well as the surrounding circumstances.

       "Someone who intends that a statement be understood as a threat does not have to

actually intend to carry out the threatened act.

       "Great bodily injury means significant or substantial physical injury. It is an injury

that is greater than minor or moderate harm.

       "Sustained fear means fear for a period of time that is more than momentary,

fleeting, or transitory."

B. Legal Principles

       In People v. Butler (2000) 85 Cal.App.4th 745, the trial court had instructed the

jury with CALJIC No. 9.94, the predecessor instruction to CALCRIM No. 1300, which

has similar language. The Court of Appeal rejected a contention that an additional

instruction regarding the elements of section 422 was required: "The instruction

sufficiently identifies the elements of the crime that the jury was required to find to

                                             30
convict under section 422. Further instruction on the elements of the threatened crime is

unnecessary." (Butler, at p. 759.) The court in Butler explained that additional

instructions regarding the elements would confuse the jury. (Id. at pp. 759-750.)

C. Analysis

       Here, under Butler, the court's instruction with CALCRIM No. 1300 sufficed and

no further instruction regarding the elements of the section 422 offense was necessary. In

any event, any instructional error would be harmless beyond a reasonable doubt.

       " 'Ascertaining whether claimed instructional error affected the substantial rights

of the defendant necessarily requires an examination of the merits of the claim—at least

to the extent of ascertaining whether the asserted error would result in prejudice if error it

was.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) So, at least to that extent,

we turn to the merits of Holland's argument.

       We determine whether the words used by appellant "were sufficiently

unequivocal, unconditional, immediate and specific they conveyed to the victim an

immediacy of purpose and immediate prospect of execution of the threat" by considering

"all the surrounding circumstances and not just on the words alone." (People v. Mendoza

(1997) 59 Cal.App.4th 1333, 1340.) There is no requirement that the threat be

unconditional, nor can we judge a threat "solely on the words spoken. It is clear by case

law that threats are judged in their context." (In re Ricky T. (2001) 87 Cal.App.4th 1132,

1137, fn. omitted.) "[I]t is the circumstances under which the threat is made that give

meaning to the actual words used. Even an ambiguous statement may be a basis for a

violation of section 422." (People v. Butler, supra, 85 Cal.App.4th at p. 753.) Here, the

                                             31
jurors found that Holland attempted to murder Sandra by choking her. The statement

Holland made to Michael: "You come any closer, she dies" imparted a clear threat that

the jurors properly interpreted as one to commit murder. The issue is not a close one.

D. Section 422 is Not Unconstitutionally Vague

       Holland contends section 422 is unconstitutionally vague because it provides

insufficient guidelines for law enforcement and risks arbitrary and discriminatory

enforcement.

       Section 422 defines a criminal threat as one that threatens commission of a crime

"which will result in death or great bodily injury to another person." Holland argues the

quoted language "is unconstitutionally vague because it calls upon law enforcement to

evaluate the nature of threats and to determine, on a case by case basis, and under a

myriad of circumstances, whether a threat is of the type which will result in great bodily

injury or death."

       "Statutes are presumed valid and must be upheld unless their unconstitutionality is

positively and unmistakably demonstrated." (People v. Basuta (2001) 94 Cal.App.4th

370, 397.) "A law is void for vagueness only if it 'fails to provide adequate notice to

those who must observe its strictures' and ' "impermissibly delegates basic policy matters

to police [officers], judges, and juries for resolution on an ad hoc and subjective basis,

with the attendant dangers of arbitrary and discriminatory application." ' " (People v.

Rubalcava (2000) 23 Cal.4th 322, 332.) "Inasmuch as ' "[w]ords inevitably contain

germs of uncertainty," ' mathematical precision in the language of a penal statute is not a

sine qua non of constitutionality." (In re M.S. (1995) 10 Cal.4th 698, 718.)

                                             32
       This issue was addressed and rejected in People v. Maciel (2003) 113 Cal.App.4th

679 (Maciel), which held that the phrase "willfully threatens to commit a crime which

will result in death or great bodily injury" must be construed in context. (Id. at p. 685.)

"[S]ection 422 does not criminalize all threats of crimes that will result in death or great

bodily injury, leaving to law enforcement to determine those threats that will result in

arrest. Instead, the statute criminalizes only those threats that are 'so unequivocal,

unconditional, immediate, and specific as to convey to the person threatened, a gravity of

purpose and an immediate prospect of execution of the threat, and thereby causes [sic ]

that person reasonably to be in sustained fear for his or her own safety or for his or her

immediate family's safety.' This language means that not all threats of crimes that will

result in great bodily injury are criminalized, but only serious threats, intentionally made,

of crimes likely to result in immediate great bodily injury. Moreover, the statute also

includes a specific intent element: 'with the specific intent that the statement . . . is to be

taken as a threat.' A statute that criminalizes threats of crimes that will result in [death

or] great bodily injury with the intent to place the victim in sustained fear for personal

safety or the safety of immediate family members adequately advises an individual and

law enforcement of the conduct prohibited by the statute. One who willfully threatens

violence against another, intending that the victim take the threat seriously and be fearful,

cannot reasonably claim to be unaware that the conduct was prohibited." (Maciel, at

p. 685.)

       Holland attempts to distinguish Maciel by claiming it is based in part on a

Nebraska case (State v. Schmailzl (1993) 243 Neb. 734) that involves an amended version

                                               33
of a Nebraska statute but the original version includes language "which is so similar to

that found in section 422." Holland is incorrect. The Maciel court's discussion of

Nebraska statutes and case law consists of the following statement: "Defendant relies on

a case in which the Nebraska Supreme Court voided Nebraska's criminal threats statute as

unconstitutionally vague. (State v. Hamilton (1983) 215 Neb. 694 [340 N.W.2d 397].)

The Nebraska Supreme Court was to some extent concerned with language similar to the

language challenged in this case. (Id. at pp. 398-399.) However, the challenged

Nebraska statute did not include language that the victim must take the threat seriously or

any intent element. Subsequently, the Nebraska legislature adopted a new criminal

threats statute modeled on the Model Penal Code and including a specific intent element.

The Nebraska Supreme Court concluded that this revised statute did not suffer from

unconstitutional vagueness. (State v. Schmailzl (1993) 243 Neb. 734 [502 N.W.2d 463,

465-467].)" (Maciel, supra, 113 Cal.App.4th at p. 686, fn. 3.)

       Holland's argument in this case is identical to that addressed and rejected in

Maciel, supra, 113 Cal.App.4th 679. Based on Maciel, we reject his argument in this

case that section 422 is unconstitutionally vague.

                                                  VII.

           Treating Holland's Prior Juvenile Adjudication as a Strike Was Not Error

       Holland contends the trial court was prohibited from using his prior adjudication

incurred in juvenile court to sentence him under the Three Strikes Law because he was

not afforded a jury trial in the juvenile court, thereby denying him due process and the



                                             34
right to a jury trial as provided by the Sixth and Fourteenth Amendments to the United

States Constitution.

       Holland recognizes that the California Supreme Court has rejected his position in

People v. Nguyen (2009) 46 Cal.4th 1007, 1028 and we are bound by it under Auto

Equity, supra, 57 Cal.2d at p. 455, but he raises the issue to preserve it for federal review.

                                                VIII.

        Section 654 Does Not Bar Punishment on Both Attempted Robbery and Burglary

       Holland contends the trial court erred by failing to apply section 654 to stay the

sentence on his attempted robbery (count 4) or burglary (count 5) conviction. He argues

the two offenses were part of a single continuous transaction and the burglary was not

completed at the time the robbery was committed.

A. Background

       In sentencing Holland to consecutive terms, the court stated, "With respect to

criteria affecting concurrent or consecutive sentences under [California Rules of Court,]

Rule 4.425, the court finds that the crimes involved in this offense involved separate acts

of violence and separate victims and threats of violence."

B. Legal Principles

       Section 654, subdivision (a) provides: "An 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." In order to determine whether

there is a single act, or a course of conduct involving multiple violations of statutes,

                                             35
requires an examination of the intent or objective of the actor. (Neal v. State of

California (1960) 55 Cal.2d 11, 19.) The question is whether during a single transaction

there is really only one act or one objective. (People v. Beamon (1973) 8 Cal.3d 625,

639.)

        In People v. Jones (2012) 54 Cal.4th 350, the court further refined its analysis of

section 654. In cases where there is but one physical act that gives rise to more than one

criminal offense, the court held that such act can only be punished once. (Jones, at

p. 358.) The offenses in Jones were firearms violations arising out of one act of

possession which could only be punished once. However, where there is a course of

conduct, as opposed to a single physical act, the multiple objectives test is still applicable.

(Id. at pp. 359-360.) The court also observed that in a given case it may be difficult to

determine whether the conduct is a single physical act, or a series of physical acts in

pursuit of one objective. The court said: "In some situations, physical acts might be

simultaneous yet separate for purposes of section 654." (Jones, at p. 358.)

        In People v. Harrison, supra, 48 Cal.3d at page 335, the California Supreme Court

explained in connection with section 654, subdivision (a): "[B]ecause the statute is

intended to ensure that defendant is punished 'commensurate with his culpability'

[citation], its protection has been extended to cases in which there are several offenses

committed during 'a course of conduct deemed to be indivisible in time.' [Citation.] [¶]

It is defendant's intent and objective, not the temporal proximity of his offenses, which

determine whether the transaction is indivisible."



                                              36
       The question of whether there were multiple acts or multiple objectives is one of

fact. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) A trial court's decision as to

the existence of multiple objectives is reviewed under the substantial evidence standard

of review, whether the finding is express or implied. (People v. Osband (1996) 13

Cal.4th 622, 730-731; People v. Nelson (1989) 211 Cal.App.3d 634, 638.)

       Burglary requires entry into a structure with the intent to commit a felony therein.

(§ 459; CALCRIM No. 1700.) "The gravamen of a charge of burglary is the act of entry

itself." (People v. Failla (1966) 64 Cal.2d 560, 568.) It is settled that the essence of the

offense is entry with the proscribed intent; such entry constitutes the completed crime of

burglary regardless of whether any felony or theft actually is committed. (People v. Allen

(1999) 21 Cal.4th 846, 863, fn. 18.)

       Attempted robbery consists of two elements: (1) the intent to commit robbery and

(2) "a direct but ineffectual act was committed." (§§ 664, 211.) Thus, "to be convicted

of attempted robbery, the perpetrator must harbor a specific intent to commit robbery and

commit a direct but ineffectual act toward the commission of the crime." (People v.

Lindberg (2008) 45 Cal.4th 1, 27.)

C. Analysis

       Here, the burglary and attempted robbery were two distinct criminal acts. After

Holland had entered the house with a felonious intent, the burglary was complete. He

subsequently attempted to force Sandra to give him money, thus committing the separate

crime of attempted robbery. Accordingly, the court did not err by imposing separate



                                             37
sentences on each crime, and there was no section 654 violation. (See People v. Green

(1985) 166 Cal.App.3d 514, 518.)

                                                  IX.

            Section 654 Bars Punishment on Two Great Bodily Injury Enhancements

       Holland contends the trial court erred by failing to stay the sentence on his section

12022.7 great bodily injury enhancement on either the attempted murder (count 1) or

attempted robbery (count 4) under section 654. He specifically contends: "[T]he same

act of causing great bodily injury is being punished by application of the section 12022.7

enhancements since there was but a single, indivisible assault upon Sandra Briones that

gave rise to the [great bodily injury] enhancements attached to the attempted murder and

attempted robbery counts."

A. Legal Analysis

       "When the criminal acts forming the basis for convictions of multiple substantive

offenses are divisible—i.e., reflecting separate intents, objectives, or events—then section

654 has been held inapplicable. [Citation.] Thus, it follows that if section 654 does not

bar punishment for two crimes, then it cannot bar punishment for the same enhancements

attached to those separate substantive offenses. This is true even if the same type of

sentence enhancement is applied to the underlying offenses. [¶] A sentence

enhancement relates to an aspect of the substantive offense to which it attaches, not to

other similar enhancements for separate criminal acts." (People v. Wooten (2013) 214

Cal.App.4th 121, 130 (Wooten).) We review the court's factual findings for substantial

evidence. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)

                                             38
       In Wooten, the court rejected the defendant's claim the assault was one indivisible

assault on the victim and his corresponding request that the court impose only one great

bodily injury allegation. The court described that the defendant first attempted to rape

the victim, dragging her into the bathroom and having sexual contact with her there.

Afterwards, the victim escaped from the bathroom, and the defendant focused on beating

her, inflicting life-threatening injuries. (Wooten, supra, at p. 133.)

B. Analysis

       This case is distinguishable from Wooten, supra, 214 Cal.App.4th 121. Here,

Holland's act of choking Sandra to the point that she blacked out and his slamming her

head against the counter and refrigerator and other acts of violence all shared one

objective: his quest for money. This is shown by his asking her for money before he

attacked her, and when she revived from his choking her, the first thing she heard him ask

was again about money. Accordingly, the court erred by sentencing Holland separately

for the great bodily injury enhancement as to both the attempted murder (count 1) and the

attempted robbery (count 4). We stay the great bodily injury enhancement on the

attempted murder conviction.




                                              39
                                         DISPOSITION

       We stay the great bodily injury enhancement under Penal Code section 12022.7,

subdivision (a) on the attempted murder in count 1 (Pen. Code §§ 664, 187, subd. (a)).

As so modified, the judgment is affirmed. The trial court is directed to prepare an

amended abstract of judgment consistent with this opinion and forward a certified copy

of it to the Department of Corrections and Rehabilitation.




                                                                 O'ROURKE, Acting P. J.

WE CONCUR:


AARON, J.


IRION, J.




                                            40
