Filed 9/5/14 P. v. Adams CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO


THE PEOPLE,                                                          B249268

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA380172)
         v.

JOHN MILTON ADAMS II,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Dennis J. Landin, Judge. Affirmed.


         Law Office of Sharon P. Babakhan, Sharon Paris Babakhan 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
Arlene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
                  ___________________________________________________
       On May 26, 2011, defendant John Adams pleaded no contest to one count of
corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)).1 Defendant admitted that
he personally inflicted great bodily injury upon the victim within the meaning of section
12022.7, subdivision (e). The trial court imposed a total sentence of seven years
consisting of the midterm of three years for the offense and four years for the great bodily
injury enhancement. The court suspended execution of sentence and placed defendant on
formal probation for three years. Terms and conditions of probation included a condition
requiring defendant to enroll in and complete a 52-week domestic violence counseling
program.
       Defendant later violated his probation by committing a new offense—felony
vandalism—in addition to failing to complete his domestic violence counseling program.
After defendant admitted the violations, the court sentenced him to state prison for the
seven-year term. The court subsequently denied defendant’s motion to withdraw the
admissions.
       Defendant appeals on the grounds that: (1) the trial court abused its discretion
when it denied defendant’s motion; (2) defendant’s vandalism case should not have been
deemed a violation of probation due to his mental illness; and (3) the trial court had the
discretion and authority to impose a lower sentence and was not obligated to order
execution of the suspended sentence.
                     FACTUAL AND PROCEDURAL HISTORY
       Laquinta Stewart testified that she resided at a motel in Hollywood with defendant
on January 16, 2011.2 They argued, and the argument became violent. Defendant
slapped Stewart twice, and she began fighting him. Defendant overpowered her and
choked her until she lost consciousness. After defendant awakened Stewart by splashing
water on her, they continued arguing. Stewart left for 10 minutes and returned,

1      All further references to statutes are to the Penal Code unless otherwise stated.
2      The facts regarding defendant’s offense are taken from the transcript of his
preliminary hearing.


                                             2
whereupon the argument continued. Stewart tried to leave again, and defendant punched
her in the face. She ran away, and defendant caught up with her. He began shaking her
back and forth, saying she was trying to send him to jail. In the motel lobby, defendant
pushed a luggage cart into Stewart’s back. The police arrived, and Stewart spoke with
two officers.
       As noted, defendant was granted probation after pleading no contest. His
probation was revoked when he failed to appear to present proof of enrollment in
domestic violence classes. Defendant was reinstated on probation and ordered to enroll
in the class. Defendant failed to appear for a subsequent court date regarding a possible
violation of probation, and his probation was revoked. When defendant appeared on
June 29, 2012, it was revealed that defendant was terminated from the domestic violence
program after having completed 17 of 52 classes. Defendant’s probation was reinstated,
and he was ordered to provide proof of reenrollment on the next court date. Defendant
failed to appear, and his probation was revoked on October 30, 2012.
       On November 1, 2012, the district attorney filed a motion requesting revocation of
probation due to defendant’s having been charged with felony vandalism. At
approximately 6:25 p.m. on October 31, 2012, defendant, who was naked, walked into
the Elite Ambulance Dispatch Center at 2065 Venice Boulevard in Los Angeles. He
grabbed some candy from a desk and threw it at a dispatcher. Defendant next threw a
monitor and a laptop at the dispatcher. Defendant picked up a five-gallon water jug and
threw it at a vending machine, shattering the glass. Defendant entered the supply room
and began throwing around gurneys and fire extinguishers. The dispatcher left the office
and called 911. Defendant tried to fight with the dispatcher. Two witnesses arrived and
defendant swung and hit one of the witnesses. The two witnesses tackled defendant and
held him down. While they did so, defendant yelled threats at them. Police arrived and
saw extensive damage to the office and items within the office. The damage was
estimated at approximately $1,000.
       On November 20, 2012, defendant waived his right to a revocation hearing and
admitted violating probation. The court found defendant in violation of probation for

                                            3
failure to complete the domestic violence program, failure to obey all laws, and failure to
report to probation. The court terminated probation and sentenced defendant to serve
seven years in prison. At defendant’s request, the court recommended placement in a
facility where defendant could enroll in a dual-diagnosis program.
       On February 20, 2013, and on April 9, 2013, defendant filed a notice of motion to
withdraw his admission. His attorney’s declaration indicated that defendant stated he did
not know what he was doing when he entered the admission, and he requested an
opportunity to be heard on the issue of his competency at the time of his admission.
       Defendant’s motion was heard, argued, and denied on May 29, 2013. The trial
court granted defendant’s request for a certificate of probable cause.
                                      DISCUSSION
I. Denial of Defendant’s Motion to Withdraw His Admissions
       A. Defendant’s Argument
       Defendant contends that the trial court erred in failing to order a hearing on the
question of his sanity, despite having “many reasons” to believe defendant was not sane
at the time he pleaded to the charge and also at the time the sentence was executed.
       B. Proceedings Below
       Defendant accepted the People’s offer of a suspended sentence of seven years and
changed his plea to no contest. He stated that he understood the plea agreement, and he
was pleading freely and voluntarily because he felt it was in his best interest to do so.
When the prosecutor explained his rights and asked if he understood and gave up his
rights, defendant answered “Yes, Ma’am” to each question posed to him. The trial court
asked him an additional question, i.e., whether he had taken any drugs or other substances
that might interfere with his ability to understand what was happening, and defendant
answered, “No, sir.” Defendant then entered his plea to the charge and special allegation.
       At the taking of defendant’s admission at the probation violation hearing, the
following exchange occurred:
“Ms. Beckstrand [Deputy District Attorney]: Mr. Adams, it’s alleged you violated the
terms and continues [sic] of probation by participating in new criminal conduct.

                                              4
Misdemeanor vandalism I believe is pending against you. Also, you failed to report to
your probation officer as ordered, and you failed to complete your domestic violence
classes as ordered. Regarding those allegations, you have the right to have a formal
hearing. At the hearing, you would have a right to confront and cross-examine any
witnesses who would testify against you. You could bring witnesses to court for free
through the subpoena power of the court if you wanted to and present a defense at the
hearing if you chose to. Do you understand all of those rights?
“The Defendant: (Inaudible response.)
“Ms. Beckstrand: You have to answer out loud.
“The Defendant: I understand.
“Ms. Beckstrand: You understand your rights, Mr. Milton [sic]?
“The Defendant: My name is John Adams, gracious gift to God. Yes, I understand that.
“Ms. Beckstrand: Do you give up those rights?
“The Defendant: Of course I do.
“Ms. Beckstrand: You also have a right to remain silent. No one can force you to say
anything that would incriminate yourself. If you admit the violations today, you will be
incriminating yourself. Based upon your admission, the court will find the violations to
be true, and no other evidence would be presented. Do you understand that right?
“The Defendant: Yes.
“Ms. Beckstrand: Do you give that right up?
“The Defendant: Of course I do.
“Ms. Beckstrand: As to the allegations that you failed to abide by the terms and
conditions of your probation in case BA380172 in that you participated in new criminal
conduct, misdemeanor vandalism, failed to report to your probation officer as ordered
and failed to complete your domestic violence class, do you admit those violations?
“The Defendant: Uh-huh.
“Ms. Beckstrand: You have to answer yes or no.
“The Defendant: Well, first of all, there’s reasons why I failed to complete my classes
and did all that, but, of course, the court doesn’t want to hear that. So I’m going to say

                                             5
yes. I’m going to agree with everything you’re saying. That’s just passions. It’s not
anger.
“Ms. Beckstrand: You understand you have the right to have a hearing?
“The Defendant: I understand. That’s why I took the seven years. Just get it out of my
hair.
“Ms. Beckstrand: So you admit those violations?
“The Defendant: Yes, I guess they are admittible [sic].
“Ms. Beckstrand: I’m sorry?
“The Defendant: They are admittible. Whatever you say.
“Ms. Beckstrand: Is that sufficient for the court?
“The Court: Well, sir, it’s alleged further that you engaged in this new criminal conduct
by throwing objects and destroying a vending machine—
“The Defendant: Yeah.
“The Court: —and other items inside of a hospital. Do you admit that?
“The Defendant: Yeah, that’s admittible.
“The Court: All right. You may proceed.
“Ms. Beckstrand: Counsel, do you join in the waivers and admission and stipulate to a
factual basis based upon the documents filed, the in lieu of in this matter?
“Mr. Fenske [defense counsel]: Yes, pursuant to People v. West.
“The Court: The court finds the defendant has expressly, knowingly, understandingly
and intelligently waived his constitutional rights. The court further finds that his
admissions are freely and voluntarily made with an understanding of the nature and
consequences thereof and that there is a factual basis for the admissions as contained in
the probation officer’s report as well as the arrest report that accompanied the People’s
motion requesting revocation of probation. The court accepts the defendant’s admission
and finds him in violation of probation.”
         At the hearing on defendant’s motion to withdraw his admission, the following
exchange occurred:



                                              6
“Mr. Fenske [defense counsel]: . . . I think the reality of the situation is such that,
essentially, without having the opportunity to actually have Mr. Adams examined, since
he’s been an out-of-county custody, I haven’t had the opportunity to have him examined
by a psychologist to see if his mental state might have been affected at the time of the
plea. I could tell, in my interactions with him since that date—I can tell he’s definitely
more stable and communicating more effectively than he was at the time of the
proceeding. And I think we’re just asking the court, in the interest justice, pursuant to
Penal Code section 1018, to make the finding that this question wasn’t—given the nature
of the proceeding, probation violation hearing setting, and the court’s indicated to just
impose a sentence that had been previously suspended and amount of time—times we
had issues in terms of his performance under that probation, you know, led us to perhaps
make a hastier decision in terms of how to proceed than was appropriate given the
situation.
“The Court: I don’t think there’s a sufficient showing made by the defense to warrant the
relief requested which is to withdraw the admission. According to what I’ve seen, he has
several felony convictions. There’s no indication in the file that he was ever found
incompetent. That issue may have been investigated by counsel at some point, but it was
not brought to this court’s attention in a timely manner. So the motion is denied.”
       C. Relevant Authority
       Section 1368, subdivision (a) provides, in pertinent part: “If, during the pendency
of an action and prior to judgment, a doubt arises in the mind of the judge as to the
mental competence of the defendant, he or she shall state that doubt in the record and
inquire of the attorney for the defendant whether, in the opinion of the attorney, the
defendant is mentally competent.”
       “A person cannot be tried or adjudged to punishment while that person is mentally
incompetent.” (§ 1367, subd. (a); see also Drope v. Missouri (1975) 420 U.S. 162, 172.)
“Absent substantial evidence of a defendant’s incompetence, ‘the decision to order [a
competency hearing pursuant to section 1368] [is] left to the court’s discretion.’” (People
v. Panah (2005) 35 Cal.4th 395, 432.) A court abuses its discretion only if its ruling falls

                                               7
outside the bounds of reason (People v. Ochoa (1998) 19 Cal.4th 353, 408), and “[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.]
The failure to declare a doubt and conduct a hearing when there is substantial evidence of
incompetence, however, requires reversal of the judgment of conviction. [Citations.]”
(People v. Rogers (2006) 39 Cal.4th 826, 847.)
       “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.’ [Citations.]” (People v. Rogers, supra, 39
Cal.4th at p. 847.)
       Plea bargaining is a critical stage of trial proceedings. (Missouri v. Frye (2012)
___ U.S. ___ [132 S.Ct. 1399, 1407-1408.) As such, there is no significant difference in
the evaluation of a defendant as to his competency to stand trial versus his competency to
assess a plea offer from the prosecution. (Godinez v. Moran (1993) 509 U.S. 389, 399
[the same level of competence is required for one who chooses to plead not guilty as for
one who pleads guilty].) Thus, a defendant who pleads guilty must have “‘sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding’” and “‘a rational as well as factual understanding of the proceedings
against him’” in order to be deemed competent to plead guilty. (Dusky v. United States
(1959) 362 U.S. 402; accord, Drope v. Missouri, supra, 420 U.S. at p. 172.)
       A denial of a motion to withdraw a plea will not be disturbed on appeal absent a
showing of an abuse of discretion. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
“Guilty pleas resulting from a bargain should not be set aside lightly and finality of
proceedings should be encouraged.” (Ibid.)
       D. No Abuse of Discretion or Error
       We disagree with defendant that there was substantial evidence of his lack of
mental competence within the meaning of section 1368. The record is devoid of any

                                              8
evidence that defendant was at any time unable to understand the nature of the
proceedings or to assist his counsel in a rational manner.
       At the outset, defendant challenges for the first time his plea of no contest to the
substantive offense of corporal injury to a cohabitant. Defendant cannot raise this issue
for the first time on appeal. After entering his plea on May 26, 2011, and being placed on
probation, defendant never sought to withdraw his plea until the present time, well
beyond the six-month limitation set out in section 1018. (People v. Miranda (2004) 123
Cal.App.4th 1124, 1133-1134 [limitation for motions to withdraw a plea following a
grant of probation is mandatory and not subject to waiver].) In his motion to withdraw
his admission of the probation violation, defendant made no mention of being
incompetent to enter into his “no contest” plea. At the hearing in which he admitted the
probation violation, he did not ask to withdraw his plea. Moreover, the trial court made
no ruling regarding the validity of defendant’s original plea, and appeal on this basis is
not well taken. (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13 [“When a party does
not raise an argument at trial, he may not do so on appeal”], disapproved on other
grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       By way of argument on the issue of his alleged incompetence to admit the
probation violation offense, defendant first points out that he fought with Stewart on the
sole provocation that she did not want to eat. He adds that he had already been convicted
in eight drug-related cases, which indicated he had a long history of drug abuse “and
possible mental issues.” He recounts his bizarre behavior at the ambulance service and
notes that the officers requested an additional unit because defendant “appeared to be
under the influence of narcotics or suffering from a mental illness.” When brought to
court, defendant presented a letter to the district attorney requesting a dual-diagnosis
program. “Friends” of defendant contacted his attorney and told him they believed
defendant was mentally ill at the time of his admission. The attorney contacted
defendant, who confirmed in a letter that he did not know what he was doing when he
entered the admission and wished to be heard on the issue of his competency. Defendant
concludes, apparently based on all of the above, that the failure of the court to order a

                                              9
hearing on the issue of his sanity in accordance with section 1368 denied him due process
of law.
       We disagree with defendant and conclude there was no substantial evidence on the
record to justify a finding of incompetence. A defendant is presumed competent unless a
preponderance of the evidence shows otherwise. (§ 1369, subd. (f); see People v. Ramos
(2004) 34 Cal.4th 494, 507.) “Section 1368, subdivisions (a) and (b), respectively,
require the trial court to initiate proceedings in order to determine a defendant’s present
sanity if ‘a doubt arises in the mind of the judge as to the mental competence of the
defendant’ or ‘[i]f counsel informs the court that he or she believes the defendant is or
may be mentally incompetent.’” (Ramos, at p. 507.) The colloquy of defendant’s
admission, recited ante, gave no indication he was mentally incompetent. Indeed,
defendant appeared to want to explain to the court the reasons for his behavior but he
chose not to. “Evidence regarding past events that does no more than form the basis for
speculation regarding possible current incompetence is not sufficient. [Citation.]”
(People v. Hayes (1999) 21 Cal.4th 1211, 1281; see also People v. Ramirez (2006) 39
Cal.4th 398, 431.) “If a defendant presents merely ‘a litany of facts, none of which
actually related to his competence at the time of sentencing to understand the nature of
that proceeding or to rationally assist his counsel at that proceeding,’ the evidence will be
inadequate to support holding a competency hearing. [Citation.] In other words, a
defendant must exhibit more than bizarre, paranoid behavior, strange words, or a
preexisting psychiatric condition that has little bearing on the question of whether the
defendant can assist his defense counsel. [Citations.]” (Ramos, at p. 508.)
       It is true that defendant had a history of drug-related offenses. Nevertheless, the
record shows that defendant’s probation report, prepared at the time he pleaded no
contest, stated that there was “no indication or claim of significant
physical/mental/emotional health problem.” As the trial court noted, there was no record
of defendant’s having been found incompetent at any time during proceedings on his
several felony convictions. There was no evidence he had ever been committed or
evaluated for mental illness. Defense counsel’s declaration in support of the motion

                                             10
names no incidents of behavior demonstrating a lack of competence. Defense counsel
does not assert he observed signs of incompetence at the taking of the admission
proceeding. At the hearing on his motion, defendant’s counsel told the court it was a
female friend of defendant’s who had informed counsel she did not believe defendant
was competent at the time the admission was made. This friend was not present when
defendant admitted the probation violation, and no information was provided as to her
qualifications for making determinations about defendant’s mental health. The only
evidence presented regarding defendant’s mental state was that counsel discerned that
defendant was communicating more effectively than he had been at the time of the
admission.
       In sum, there was no showing that defendant suffered from a mental condition to
the degree that the trial court was obliged to declare a doubt about his competence prior
to accepting his admission to the probation violation. There was no error.
II. Mental Illness and Vandalism Offense as Violation of Probation
       A. Defendant’s Argument
       Defendant argues that, as a result of mental disease or defect, he lacked substantial
capacity either to appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law, citing People v. Drew (1978) 22 Cal.3d 333, 345. He asserts
that he did not freely choose to violate the law.
       B. No Evidence of Insanity
       Defendant’s arguments indicate he is now asserting an insanity defense to the
vandalism charge. (See People v. Drew, supra, 22 Cal.3d at p. 336 [discussing an
“update” to the test for mental incapacity as a criminal defense in California].) The
defense of not guilty by reason of insanity “shall be found by the trier of fact only when
the accused person proves by a preponderance of the evidence that he or she was
incapable of knowing or understanding the nature and quality of his or her act and of
distinguishing right from wrong at the time of the commission of the offense.” (§ 25,
subd. (b); People v. Hernandez (2000) 22 Cal.4th 512, 520-521.) In the instant case,
there was no finding that defendant was either sane or insane by any trier of fact.

                                             11
       Defendant cites cases, such as People v. Drew, dealing with sanity determinations,
although defendant offered no defense based on insanity. We have already determined
that the trial court did not abuse its discretion in making the finding that defendant was
not incompetent at the time he admitted the probation violation. Although defendant
acted in a bizarre manner at the ambulance service, there was no evidence he was insane
at the time. Given his history of drug use, it is far more likely he was under the influence.
The elements of a defense of voluntary intoxication are not identical to a defense of not
guilty by reason of insanity and these defenses are not co-extensive or interchangeable.
A defense of not guilty by reason of insanity can be found “‘only when the accused
person proves by a preponderance of the evidence that he or she was incapable of
knowing or understanding the nature and quality of his or her act and of distinguishing
right from wrong at the time of the commission of the offense.’” (People v. Lawley
(2002) 27 Cal.4th 102, 169-170, fn. omitted.) Defendant failed to present any evidence
that he suffered from this type of incapacity.
       Moreover, the vandalism offense was not defendant’s only violation of probation.
He failed to report to his probation officer as required, and he failed to complete his
domestic violence program, despite being given several opportunities to do so after his
repeated failures to comply.
       Defendant’s argument is without merit.
III. Sentencing
       A. Defendant’s Argument
       Defendant asserts that when the court became aware of defendant’s mental issues,
it would have been within the court’s jurisdiction and authority to mitigate the state
prison term of seven years downward to some other form of punishment, such as a dual-
diagnosis program, where defendant’s mental and drug-related issues could have been
addressed.
       B. Relevant Authority
       When challenging a discretionary sentencing choice on appeal, “the burden is on
the party attacking the sentence to clearly show that the sentencing decision was

                                             12
irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-
978; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.) “‘In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’ [Citation.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
       C. No Abuse of Discretion
       At the outset, we note that defendant did not object to execution of the suspended
sentence at the proceeding below. Allegations of sentencing error cannot be raised for
the first time on appeal where the trial court exercised its discretion in imposing sentence.
(People v. Tillman (2000) 22 Cal.4th 300, 302-303.)
       Additionally, “[u]nless the record affirmatively shows otherwise, a trial court is
deemed to have considered all relevant criteria in deciding whether to grant or deny
probation or in making any other discretionary sentencing choice. [Citation.]” (People v.
Weaver, supra, 149 Cal.App.4th at p. 1313.) Defendant’s sentence of seven years was
imposed pursuant to a plea bargain that he and the prosecutor agreed upon. The trial
court did not abuse its discretion in carrying out that plea bargain. Accordingly, the basis
for the sentence was far from arbitrary or irrational. Moreover, contrary to defendant’s
assertion, the trial court recommended that defendant be placed in a dual-diagnosis
program, as defendant requested.
       Defendant’s claim of sentencing error is without merit.
                                        DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                    BOREN, P.J.
We concur:
               CHAVEZ, J.                           FERNS, J.*
_______________________________________________________________________
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.

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