Filed 6/26/13 P. v. Woods CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C068496

         v.                                                                     (Super. Ct. Nos. CM033079,
                                                                                        CM033637)
ROBERT WAYNE WOODS,

                   Defendant and Appellant.

         This appeal involves two criminal cases against defendant Robert Wayne Woods.
In CM033637, defendant stole a bottle of rum from a Safeway store in Chico. He was
convicted by jury of one count of petty theft. Prior to the jury’s verdict in this case,
solely for purposes of making the offense a felony, defendant admitted to having three
prior theft-related convictions resulting in imprisonment. (Pen. Code, § 666.)1
Defendant also admitted one prior prison term enhancement allegation. (§ 667.5, subd.
(b).) In CM033079, defendant violently beat and threatened his girlfriend, Victoria
Lemilliere. He was convicted by a separate jury of one count of inflicting corporal injury


1   Undesignated statutory references are to the Penal Code.

                                                             1
on a cohabitant (§ 273.5, subd. (a)), one count of assault (§ 240), and one count of
making a criminal threat (§ 422). During the trial in this case, defendant admitted three
prior prison term enhancement allegations, based on the same three theft-related
convictions admitted in CM033637. (§ 667.5, subd. (b).)
       Sentencing in the two cases was combined. Defendant was sentenced to an
aggregate term of seven years, four months in state prison (upper-term sentence of four
years) for inflicting corporal injury on Lemilliere, plus a consecutive eight-month
sentence (one-third the middle term) for making a criminal threat, plus a consecutive
eight-month sentence (one-third the middle term) for petty theft with priors, plus two
consecutive one-year sentences for prior prison term enhancements. A six-month
sentence was imposed for assault and ordered to be served concurrently.
       On appeal, defendant contends: (1) the trial court violated his constitutional right
to due process by failing to conduct a “meaningful” competency hearing after defendant’s
trial counsel expressed a doubt concerning his mental competence under section 1368;
(2) the trial court prejudicially erred and violated his right to due process by failing to
instruct the jury sua sponte that defendant’s voluntary intoxication could be considered in
determining whether he possessed the specific intent required to make a criminal threat
within the meaning of section 422; (3) defendant’s trial counsel rendered constitutionally
deficient assistance by failing to request an instruction on voluntary intoxication; (4) the
trial court further violated defendant’s right to due process by declining to grant a mistrial
after the prosecution mistakenly played a portion of a jailhouse phone call the trial court
had ordered redacted; and (5) the trial court should have stayed execution of the
sentences imposed on defendant’s convictions for making a criminal threat and assault
pursuant to section 654.
       As we explain, we agree the trial court should have “appoint[ed] two psychiatrists,
licensed psychologists, or a combination thereof,” to examine defendant because he
informed the trial court he did not want to be found to be mentally incompetent. (§ 1369,

                                               2
subd. (a).) However, defendant was not prejudiced by the trial court’s failure to do so.
“The appointment of two experts in such circumstances provides a minimum protection
for the defendant against being incorrectly found incompetent to stand trial.” (People v.
Harris (1993) 14 Cal.App.4th 984, 996.) Here, after defendant refused to cooperate with
the psychologist who was initially appointed to examine him, the trial court asked
defendant whether he wanted another doctor appointed. Defendant responded: “No. I’m
fully aware of what’s going on.” Defense counsel (who was filling in for the attorney
who had expressed a doubt concerning defendant’s mental competence) then conferred
with defendant and confirmed: “He has indicated again he’s not going to talk with the
doctor, and it doesn’t matter which doctor you appoint, your Honor.” Counsel also stated
on the record he would be “hard-pressed” to express a doubt about defendant’s mental
competence, explaining: “He seems to understand his case. He wants to talk with me
about his case, to go over discovery with me and to cooperate in his defense. He wants to
go to jury trial as soon as possible.” The trial court ruled that defendant had not carried
his burden of establishing his incompetence to stand trial and reinstated the criminal
proceedings. Thus, defendant was not incorrectly found incompetent to stand trial. Nor
did the trial court violate defendant’s right to due process by declaring him competent to
stand trial based on the psychologist’s letter reciting defendant’s refusal to cooperate,
defense counsel’s statements concerning his interactions with defendant, the trial court’s
own observations of defendant, and the presumption of mental competence found in
section 1369, subdivision (f). (See People v. Maxwell (1981) 115 Cal.App.3d 807, 812.)
       Turning to defendant’s remaining contentions, we conclude the trial court had no
sua sponte duty to instruct the jury on voluntary intoxication. Nor was defendant
prejudiced by his trial counsel’s failure to request such an instruction. The trial court
properly declined to declare a mistrial after the prosecution mistakenly played a portion
of the jailhouse phone call that should have been redacted. And the trial court was not



                                              3
required to stay execution of the sentences imposed on his convictions for making a
criminal threat and assault.
       However, we do find an error in the judgment. As mentioned, defendant admitted
one prior prison term enhancement allegation in CM033637 and admitted three such
allegations in CM033079. However, the trial court imposed the mandatory one-year
sentence for two of these enhancements. Having received supplemental briefing on this
issue, we conclude the trial court failed to advise defendant of his Boykin-Tahl2 rights
prior to accepting his admissions in CM033079. We cannot infer that defendant
voluntarily and intelligently admitted these enhancement allegations. Accordingly, we
reverse the two prior prison term findings not supported by a valid admission, vacate
defendant’s sentence, and remand the matter to the trial court for retrial of these
enhancements and resentencing.
       In all other respects, we affirm the judgment.
                                          FACTS
                                   Case No. CM033637
       On April 29, 2010, defendant walked into a Safeway store in Chico, entered the
liquor aisle, grabbed a bottle of Seagram’s rum, and quickly walked out of the aisle. A
loss prevention employee who was in the liquor aisle followed defendant to an adjacent
aisle and watched him place the bottle of rum in his waistband underneath his hooded
sweatshirt. Defendant then walked out of the store without paying for the rum. The
employee followed, identified himself as “Safeway Loss Prevention,” and asked
defendant to hand over the merchandise. At first, defendant denied taking anything from
the store. But when the employee told him to return the bottle of rum that was in his
waistband, defendant complied and apologized.



2Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969) 1
Cal.3d 122 (Tahl).

                                              4
                                   Case No. CM033079
       On July 29, 2010, defendant and Lemilliere spent the day at the river with their
three grandchildren. When they returned to their apartment, Lemilliere and the children
took a nap. Defendant and a friend hung out on the porch drinking Four Loko, a
caffeinated malt beverage with 12 percent alcohol content. When Lemilliere woke up,
she could tell defendant was intoxicated and asked him to send his friend home so he
could spend time with his grandchildren. Defendant ignored her. She then decided to
walk the children back to their parents’ house, a short distance away. The youngest child,
who was almost two years old, was placed in a double stroller at the bottom of the stairs
leading to the apartment. The other children, who were four and seven years old, waited
with the stroller at the bottom of the stairs while their grandmother placed their
belongings in a diaper bag upstairs.
       When defendant saw that Lemilliere was getting ready to take the children home,
he became angry and said it was “his job to take the kids home.” Lemilliere argued with
defendant because he was “too intoxicated” to do so safely. The argument turned into a
swearing match, which quickly turned violent. After calling Lemilliere “a bitch, a cunt, a
whore, and a slut,” defendant “punched her multiple times in the face.” Lemilliere fell to
the ground. Defendant then “grabbed her by the hair and struck her head against the wall
two times.” At this point, defendant said: “Oh, my god.” Lemilliere responded: “See
what you did to me?” Defendant then struck her head against a stereo speaker that was
on the ground. Lemilliere “felt like she was going unconscious.” Defendant then
grabbed a pillow from the ground and “forced it over her face,” saying: “Die, bitch, die.”
Afraid she was going to die, Lemilliere pretended to be unconscious and turned her head
to the side so she could “slightly breathe.” Finally, defendant “stood above her and
stomped on her face.” Lemilliere continued to feign unconsciousness.
       When defendant left the room, Lemilliere got up and ran down the stairs. She then
loaded the middle child into the stroller and walked the children home. By the time

                                              5
Lemilliere reached her daughter’s house, she realized she had blood coming from her
nose and mouth. She also had multiple bruises and “a shoe print on [her] face.” After
dropping the children off, Lemilliere slowly made her way back to the apartment,
stopping outside her daughter’s house to smoke a cigarette because she was “upset” and
“shaking.” She also stopped at some railroad tracks and “hung out for a little bit,” hoping
defendant would be “passed out” by the time she got home. When Lemilliere reached the
apartment, she stopped in an adjacent alley and watched through a fence as defendant
“was yelling and screaming and throwing things off the porch.” Eventually, defendant
passed out on a mattress in the living room. Police arrived a short time later. Apparently,
one of the neighbors reported the disturbance. When Lemilliere explained to the
responding officers what had happened, she “was shaking” and “very fearful.” Based on
Lemilliere’s injuries and account of events, police entered the apartment and took
defendant into custody.
                                      DISCUSSION
                                              I
                                Competence to Stand Trial
       Defendant contends the trial court violated his constitutional right to due process
by failing to conduct a “meaningful” competency hearing after defendant’s trial counsel
expressed a doubt concerning his mental competence under section 1368. We disagree.
                                             A.
                                     Legal Principles
       “It is well established that the criminal trial of an incompetent defendant violates
the due process clause of the state and federal Constitutions.” (In re Ricky S. (2008) 166
Cal.App.4th 232, 234; Medina v. California (1992) 505 U.S. 437, 453 [120 L.Ed.2d 353,
368]; Pate v. Robinson (1966) 383 U.S. 375, 377-378 [15 L.Ed.2d 815, 817-818]; People
v. Jenkins (2000) 22 Cal.4th 900, 1002.) The standard for determining whether a
defendant is competent to stand trial was set forth in Dusky v. United States (1960) 362

                                             6
U.S. 402 [4 L.Ed.2d 824]. “Under that standard, the inquiry is whether the defendant
‘“has sufficient present ability to consult with his [or her] lawyer with a reasonable
degree of rational understanding -- and whether he [or she] has a rational as well as
factual understanding of the proceedings against him [or her].”’” (Timothy J. v. Superior
Court (2007) 150 Cal.App.4th 847, 857, quoting Dusky v. United States, supra, 362 U.S.
at p. 402 [4 L.Ed.2d at p. 824].)
       These constitutional protections are also implemented by statute. (§ 1367 et seq.)
Section 1367, subdivision (a), provides that “[a] criminal defendant is incompetent and
may not be ‘tried or adjudged to punishment’ if ‘as a result of mental disorder or
developmental disability, the defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational manner.’”
(People v. Johnwell (2004) 121 Cal.App.4th 1267, 1273.)
       Section 1368 provides in relevant part that 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” (§ 1368, subd. (a)), and if defense counsel indicates a belief the
defendant “is or may be mentally incompetent,” the court must order a competency
hearing (§ 1368, subd. (b)), and “all proceedings in the criminal prosecution shall be
suspended until the question of the present mental competence of the defendant has been
determined” (§ 1368, subd. (c)).
       Section 1369 sets forth the procedure for determining the mental competence of
the defendant. Subdivision (a) of this section requires the trial court to “appoint a
psychiatrist or licensed psychologist, and any other expert the court may deem
appropriate, to examine the defendant.” The purpose of the appointment is to determine
“the nature of the defendant’s mental disorder, if any, the defendant’s ability or inability
to understand the nature of the criminal proceedings or assist counsel in the conduct of a

                                              7
defense in a rational manner as a result of a mental disorder and, if within the scope of
their licenses and appropriate to their opinions, whether or not treatment with
antipsychotic medication is medically appropriate for the defendant and whether
antipsychotic medication is likely to restore the defendant to mental competence.” This
subdivision also provides: “In any case where the defendant or the defendant’s counsel
informs the court that the defendant is not seeking a finding of mental incompetence, the
court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.
One of the psychiatrists or licensed psychologists may be named by the defense and one
may be named by the prosecution.” Subdivisions (b) through (f) set forth the procedure
for conducting the competency hearing, including the appropriate standard to be
employed in reaching the ultimate decision as to competence: “It shall be presumed that
the defendant is mentally competent unless it is proved by a preponderance of the
evidence that the defendant is mentally incompetent.” (§ 1369, subd. (f).)
       Finally, section 1370, subdivision (a), provides, “[i]f the defendant is found
mentally competent, the criminal process shall resume, the trial on the offense charged
shall proceed, and judgment may be pronounced,” but “[i]f the defendant is found
mentally incompetent, the trial or judgment shall be suspended until the person becomes
mentally competent.” (§ 1370, subd. (a)(1).)
                                             B.
                                 Additional Background
       On October 28, 2010, prior to trial in both the petty theft and domestic violence
cases, defendant’s trial counsel William Short informed the trial court he was having
difficulty communicating with defendant concerning the case. The trial court asked
defendant if that was true. Defendant responded: “No. I told him I didn’t want to
postpone anything or anything like that. And, you know, he’s throwing a fit at me.” The
trial court then asked defendant whether he wanted to go to trial the following Monday.
Defendant responded: “Yes, sir.” In response to the trial court’s suggestion that they set

                                             8
the trial for Monday, Short stated that in discussing the case with defendant during the
previous few weeks, he “frequently” questioned whether defendant was either “not
understanding” or “not paying attention.” Short then explained he had spoken with
defendant’s mother, who informed him defendant “always had a problem understanding”
and “had some problems when he was in school.” Short also explained: “I’ve toyed with
the idea of [declaring a doubt as to defendant’s mental competence under section] 1368
because one of the prongs of [section] 1368 is the client has to be willing to understand
and assist. [Defendant] feels that he just wants to go forward no matter what. I’m not
sure he’s even aware that there’s a second case on the [petty theft charge], although we
discussed it.” After explaining the defendant refused to meet with him that afternoon,
Short stated: “So I have no alternative at this point but to declare a [doubt as to
defendant’s mental competence under section] 1368 in both matters. I have to express a
doubt that [defendant] does not adequately understand what I’m saying.”
       Defendant responded: “Your Honor, I know what’s going on,” and elaborated: “I
mean, just because I’ve been, done a little bit of time doesn’t mean -- I’m not stupid. But
he’s sitting there talking to me, do you know what I mean? I told him, ‘No, I want to get
on with the trial.’ He’s throwing a fit at me. I don’t want to sit there and talk because
he’s going to get mad at me because I want to go to trial.” At this point, Short interrupted
defendant, asked that the prosecutor be removed from the courtroom “so that nothing
[defendant said would] hurt his case,” and denied “throwing a fit.” The trial court
responded: “I’m not concerned about that. Right now I’m concerned about whether or
not we might have a doctor appointed to examine [defendant] to see if he’s competent to
stand trial or assist counsel.” Short agreed and added: “I’m also asking that we ask a
doctor to examine his IQ. I think maybe there’s a basic lack of understanding.”
Implicitly finding there to be a doubt concerning defendant’s mental competence, the trial
court suspended the criminal proceedings and appointed Paul R. Wuehler, Ph.D., to
examine him pursuant to section 1369.

                                              9
       On November 19, 2010, Dr. Wuehler visited defendant at the Butte County Jail to
conduct the ordered examination. Defendant declined to participate. As Dr. Wuehler
noted in a letter to the trial court: “The defendant elected to not talk with the examiner.
He did state: ‘I know what is going on,’ referring [to] the court process. However, he
did not make any other comments or responses regarding his present legal process. As
the defendant left the interview room, he said to this examiner: ‘I don’t mean to be
disrespectful.’” Based on this conversation, Dr. Wuehler was not able to express an
opinion regarding defendant’s mental competence.
       The competency hearing was held on December 2, 2010. David Nelson, an
associate of Short, appeared specially on behalf of defendant. After the trial court stated
it had received Dr. Wuehler’s letter, Nelson argued that “the Court has to make a
determination whether [defendant is] competent to stand trial, not just simply that he
knows what is going on, but also whether he can cooperate with the defense attorney. [¶]
Those are the issues that the psychiatrist has to examine to determine if that, indeed, is
the case. In order to move [the] case along, [defendant] needs to cooperate. He has
expressed to me he is not willing to meet with the psychiatrist.” The prosecutor then
asked whether defendant would be willing to meet with a different doctor. Nelson
responded: “I don’t believe it’s the personality of the doctor with [defendant]. He says
he’s prepared to go to trial, and there’s been an expression by [Short] that he is not
competent to stand trial. That needs to be determined whether or not [defendant] should
go to trial and if you want to set it for trial, it needs to be determined if he is competent to
stand trial. I don’t know how we can do this without his cooperation.”
       The trial court then addressed defendant and explained it needed some information
before it could make a determination regarding defendant’s competence to stand trial.
Defendant raised his hand. When asked if he had something to say, defendant responded:
“Where did this all come about anyways? That -- I mean, why do I have psych and
everything? Where did it come about? Who determined that? My lawyer?” The trial

                                              10
court answered: “Right.” Defendant responded: “I’m capable of understanding what is
going on fully.” The trial court tried to explain the purpose of the psychological
evaluation. Defendant interrupted: “I don’t need to see psych. I don’t need to talk to
him.” The trial court then asked defendant whether he wanted another doctor appointed.
Defendant responded: “No. I’m fully aware of what’s going on.” He also stated: “It’s
actually starting to upset me.”
       The trial court addressed Nelson: “All right. What I’m going to do, is give you
some time to talk with [defendant] this morning and meet with him, explain to him the
importance of talking with the psychiatrist, and then come back and report to the Court
any further information that you have as to his willingness to proceed with the doctor’s
evaluation, and I’ll take up the issue further after you’ve had some additional time to talk
with him.” After conferring with defendant, Nelson reported to the trial court: “He has
indicated again he’s not going to talk with the doctor, and it doesn’t matter which doctor
you appoint, your Honor.” Nelson also stated: “At sidebar I indicated to the Court my
dealings with [defendant] and although limited, he knows who I am. He knows I am
defense counsel. He knows who the judge is, who the prosecution is. [¶] I don’t know
what dealings he had with [Short], but [Short] has expressed doubts under [section] 1368.
For the record I would be hard-pressed to express that same doubt myself. He seems to
understand his case. He wants to talk with me about his case, to go over discovery with
me and to cooperate in his defense. He wants to go to jury trial as soon as possible. [¶]
I’ve indicated to him until we get the [section] 1368 matter resolved, we can’t set the
matter for trial so he seems to understand the system. He understands what he’s here for
and he understands what the process is. I will make that representation to the Court.” In
response to the trial court’s question concerning whether defendant understood what a
jury trial is, Nelson answered: “He does.”
       At this point, the prosecutor stated she was willing to proceed to trial if defendant
was found to be competent, but expressed concern about the “conflict [between Short and

                                             11
Nelson] as to an expression of doubt as to his competency.” The prosecutor also advised
the trial court that defendant’s “rap sheet” indicated a “sophistication with the criminal
justice system.” Nelson then stated: “Your Honor, I indicated to [defendant] that I’ve
kind of placed the Court in a dilemma here. [Short]’s expressed a doubt. I don’t have the
same doubts that [Short] expressed. [¶] And I respect that [the prosecutor has] to protect
the record. That’s part of [her] job. And I’ve placed the Court in a rather tenuous
position. I don’t see that a [competency hearing] is necessary here. I’m making that
representation to the Court. [Short] has. [¶] And the Court has sent this out for
determination under [section] 1368 and stayed the proceedings, and I’ve urged
[defendant] to cooperate with that determination. I am confident that once he does that,
that he’ll become competent, and we’ll proceed with trial. He refuses to do so, and so
that’s where we are.” The prosecutor then stated her concern that “those of us sitting
here do not carry the expertise to make that determination.” Nelson responded: “And
that’s part of [defendant’s] problem. He resents having been referred for [an evaluation
under section] 1368. We are lawyers; we are not psychiatrists. We are not doctors, but
that is part of defense counsel’s duties to determine whether or not our client is
competent to stand trial. I’m not criticizing [Short] for doing that. I’ve done it many
times myself.”
       The trial court then asked defendant whether he was willing to cooperate with his
attorney, discuss the facts and circumstances of the case, and provide all information
needed to present a defense. Defendant answered: “Yes, ma’am.” He then expressed a
preference to have Nelson represent him, but stated he had not refused to cooperate with
Short. The trial court ruled: “The Court has considered the burden of proof and the
materials presented to the Court, also considered its interactions with [defendant] in this
matter, and based on information provided to the Court today as well as the doctor’s letter
which reflects a respectful refusal to cooperate, an understanding of the court process,
essentially, but just that he doesn’t want to participate, the Court finds that the defense

                                              12
has not met its burden to show that the defendant is incompetent to stand trial; therefore,
the defendant is deemed competent and criminal proceedings are reinstated.”
                                             C.
                                         Analysis
       Defendant first argues that section 1369 “requires examination by two
psychiatrists or psychologists if the defendant opposes challenge to his or her
competency,” and “despite [defendant’s] insistence at both the October 28, 2010, and
December 2, 2010, hearings that he strongly opposed any suggestion that he was
mentally incompetent, the [trial] court appointed only one psychiatrist, instead of the two
required by section 1369.” We agree the trial court should have appointed two
psychiatrists or psychologists, but conclude defendant was not prejudiced by the trial
court’s failure to do so.
       As mentioned, where “the defendant or the defendant’s counsel informs the court
that the defendant is not seeking a finding of mental incompetence, the court shall
appoint two psychiatrists, licensed psychologists, or a combination thereof.” (§ 1369,
subd. (a).) The trial court appointed Dr. Wuehler to examine defendant on October 28,
2010, after Short expressed a doubt about defendant’s competence to stand trial. The trial
court had a duty to appoint an additional expert only if defendant or Short informed it at
that time that defendant was not seeking a finding of mental incompetence. Based on the
record, we conclude defendant was not seeking a finding of mental incompetence. In
response to Short’s expression of doubt concerning defendant’s competence, defendant
stated: “Your Honor, I know what’s going on,” and explained his position that Short
expressed a doubt regarding his competence after “throwing a fit” over the fact that
defendant did not want to postpone going to trial. While defendant did not utter the
magic words that he was “not seeking a finding of mental incompetence” (§ 1369, subd.
(a)), we believe it would exalt form over substance to conclude defendant did not inform
the trial court he was not seeking such a finding.

                                             13
       However, the purpose for the appointment of two experts in such circumstances is
to provide “minimum protection for the defendant against being incorrectly found
incompetent to stand trial.” (People v. Harris, supra, 14 Cal.App.4th at p. 996.) Here,
defendant declined to cooperate with Dr. Wuehler, stating: “‘I know what is going on,’
referring [to] the court process.” During the subsequent competency hearing, the trial
court asked defendant whether he wanted another doctor appointed. Defendant
responded: “No. I’m fully aware of what’s going on.” Nelson then conferred with
defendant and confirmed: “He has indicated again he’s not going to talk with the doctor,
and it doesn’t matter which doctor you appoint, your Honor.” Nelson also stated on the
record that he would be “hard-pressed” to express the same doubt about defendant’s
mental competence expressed by Short, explaining: “He seems to understand his case.
He wants to talk with me about his case, to go over discovery with me and to cooperate in
his defense. He wants to go to jury trial as soon as possible.” Based on Dr. Wuehler’s
letter reciting defendant’s refusal to cooperate, Nelson’s statements concerning his
interactions with defendant, the trial court’s own observations of defendant, and the
presumption of mental competence found in section 1369, subdivision (f), the trial court
ruled defendant had not carried his burden of establishing his incompetence to stand trial
and reinstated the criminal proceedings. Thus, defendant was not incorrectly found
incompetent to stand trial and cannot have been prejudiced by the trial court’s failure to
appoint two experts.
       Defendant disagrees, arguing that “two experts rather than one would have made a
substantial difference in convincing [him] to cooperate and generating actual evidence by
which the [trial] court could make a knowledgeable decision.” This argument is belied
by the record. At the competency hearing, the trial court offered to appoint a second
doctor if that would convince defendant to cooperate. Nelson conferred with defendant
and informed the trial court defendant would refuse to cooperate with any doctor
appointed. We have no doubt that had the trial court appointed two doctors to examine

                                            14
defendant, he would have refused to cooperate with both of them. Accordingly, based on
the facts of this case, the failure to appoint two experts could not have affected the
amount of evidence available to the trial court in determining defendant’s competence to
stand trial.
       Nor did the trial court violate defendant’s right to due process by failing to
conduct a “meaningful” competency hearing. We find People v. Maxwell, supra, 115
Cal.App.3d 807 to be instructive. There, like here, defense counsel expressed a doubt
about the defendant’s competence under section 1368, the defendant objected, and the
trial court suspended the criminal proceedings pending a determination of the defendant’s
competence to stand trial. Unlike the present case, the trial court appointed two
psychiatrists to assess the defendant’s mental competence. (Id. at p. 809.) However, like
here, the defendant refused to cooperate. At the competency hearing, the trial court
explained that it had received a letter from each psychiatrist indicating defendant’s
refusal to see them. The trial court then asked defense counsel if he had any reason to
dispute the psychiatrists’ statements. Defense counsel said that he did not. The trial
court then ruled: “‘[T]hat being the case, I don’t have any reason at this time to doubt
[the defendant’s] competency to stand trial. The code provides that a defendant is
presumed to be competent to stand trial, and I have no evidence to the contrary. I have
observed his conduct in court, and while it seems to border on the bizarre, that may very
well be calculated activity on the part of the defendant. So, I am going to adjourn the
[section] 1368 proceedings at this time and reinstate criminal proceedings.’” (Id. at
p. 810.)
       The Court of Appeal held that this hearing satisfied the requirements of section
1369, explaining: “The burden was on defense counsel to offer any evidence he might
have in support of the allegation of mental incompetence. (§ 1369, subd. (b)(1).)
Defense counsel not having assumed the burden and the People having elected to offer no
evidence, the court was left with two letters from the doctors reciting defendant’s refusal

                                             15
to see them, its own observations of defendant since its expression of doubt a month and
a half before and the presumption of mental competence which defense counsel had not
seen fit to challenge. [Citation.] On this state of the record the judge declared that he no
longer had a doubt in his mind concerning defendant’s competence to stand trial. The
fact that neither party chose to present evidence on the issue does not point to the absence
of a hearing. This very situation is clearly contemplated in section 1369, subdivision
(b)(2).” (People v. Maxwell, supra, 115 Cal.App.3d at p. 811.)
       Similarly, here, neither defense counsel nor the prosecution offered any evidence
on the issue of defendant’s mental competence. Nelson had an opportunity to do so.
Instead, he declared that defendant appeared to understand the proceedings against him
and appeared to be able to assist in his defense. Given the absence of any evidence
defendant was incompetent to stand trial, the trial court based its ruling of competency on
Dr. Wuehler’s letter reciting defendant’s respectful refusal to cooperate, Nelson’s
statements concerning his interactions with defendant, the trial court’s own observations
of defendant, and the presumption of mental competence found in section 1369,
subdivision (f). This complied with section 1369 and did not violate defendant’s right to
due process. “The core of due process is the right to notice and a meaningful opportunity
to be heard.” (LaChance v. Erickson (1998) 522 U.S. 262, 266 [139 L.Ed.2d 695].)
Defendant was afforded both.
                                              II
                                     Instructional Error
       Defendant also claims the trial court prejudicially erred and violated his
constitutional right to due process by failing to instruct the jury concerning the effect of
voluntary intoxication on his ability to form the mental state required for the criminal
threat charge, despite his failure to request such an instruction below. However, as
defendant acknowledges, our Supreme Court has consistently held that “[a]n instruction
on the significance of voluntary intoxication is a ‘pinpoint’ instruction that the trial court

                                              16
is not required to give unless requested by the defendant.” (People v. Rundle (2008) 43
Cal.4th 76, 145, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390,
421; People v. Myles (2012) 53 Cal.4th 1181, 1217; People v. Verdugo (2010) 50 Cal.4th
263, 295; People v. Saille (1991) 54 Cal.3d 1103, 1120.) We must therefore reject
defendant’s contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
                                             III
                             Ineffective Assistance of Counsel
        Anticipating that we would find no sua sponte duty to instruct on voluntary
intoxication, defendant complains his trial counsel rendered constitutionally deficient
assistance by failing to request such an instruction. He is mistaken.
        A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting
as his diligent conscientious advocate.’ [Citations.]” (Ibid.)
        The burden of proving a claim of ineffective assistance of counsel is squarely
upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) “‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s performance or lack
thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.”’” (In re Harris (1993) 5 Cal.4th 813, 832-833; see also People v.

                                             17
Ledesma, supra, 43 Cal.3d at pp. 216-217; accord, Strickland v. Washington (1984) 466
U.S. 668, 687 [80 L.Ed.2d 674, 693].)
       Defendant argues, “there could be no possible reason why [his] counsel would
knowingly want the jury to fail to consider the legal implications of [his] drunken state
when judging whether he had the requisite intent to commit [the crime of making a
criminal threat].” Assuming this to be true, we find no prejudice.
       While voluntary intoxication “‘is not a defense to a general intent crime,’”
evidence of such intoxication “is admissible on the issue of whether or not a defendant
actually formed a required specific intent or mental state.” (People v. Mathson (2012)
210 Cal.App.4th 1297, 1312, quoting People v. Velez (1985) 175 Cal.App.3d 785, 791;
former § 22, subd. (b).) The crime of making a criminal threat requires a specific intent.
The elements of the crime are: “‘(1) that the defendant “willfully threaten[ed] to commit
a crime which will result in death or great bodily injury to another person,” (2) that the
defendant made the threat “with the specific intent that the statement . . . is to be taken as
a threat, even if there is no intent of actually carrying it out,” (3) that the threat . . . was
“on its face and under the circumstances in which it [was] made, . . . 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,” (4) that the threat actually
caused the person threatened “to be in sustained fear for his or her own safety or for his
or her immediate family’s safety,” and (5) that the threatened person’s fear was
“reasonabl[e]” under the circumstances.’ [Citation.]” (In re George T. (2004) 33 Cal.4th
620, 630, italics added.)
       Here, there was evidence defendant was intoxicated at the time he violently
attacked and threatened Lemilliere. However, we cannot conclude defendant was
prejudiced by his trial counsel’s failure to request an instruction on voluntary intoxication
because it is not reasonably probable the jury would have found this intoxication negated
his intent that the statement, “Die, bitch, die” be taken as a threat. Defendant made this

                                                18
statement while holding a pillow over Lemilliere’s face. In this situation, it is difficult to
fathom what else defendant could have intended to convey. Moreover, the timing of the
statement lends support to the conclusion defendant intended for it to be taken as a threat.
After punching Lemilliere in the face multiple times and striking her head into the wall,
he said: “Oh, my god.” Lemilliere responded: “See what you did to me?” Defendant
then struck her head against a stereo speaker, grabbed the pillow, “forced it over her
face,” and said: “Die, bitch, die.” Even if the jury were to conclude defendant’s
intoxication caused him to act from impulse when he started the attack, rather than
specifically intending any particular consequences, the jury was likely to conclude from
defendant’s “Oh, my god” statement that the gravity of his actions was starting to sink in.
Rather than stop, defendant struck Lemilliere’s head against a speaker and threatened to
kill her while smothering her with a pillow. He then stomped on her face and left the
room. On these facts, we cannot find a reasonable probability that, had the jury been
instructed on voluntary intoxication, it would have found defendant not guilty of the
crime of making a criminal threat.
       Thus, defendant’s claim of ineffective assistance of counsel must fail.
                                              IV
                        Denial of Defendant’s Request for Mistrial
       We also reject defendant’s assertion the trial court violated his right to due process
by declining to grant a mistrial after the prosecution mistakenly played a portion of a
jailhouse phone call the trial court had ordered redacted.
                                              A.
                                  Additional Background
       At trial, Lemilliere testified she did not remember defendant punching her,
slamming her head into the wall or speaker, holding a pillow over her face while
threatening her, or stomping on her face. According to her testimony, she argued with
defendant over her decision to take the grandchildren home. This argument turned into a

                                              19
shoving match, defendant grabbed her by the hair, and the next thing she remembered
was running down the stairs after the incident. Lemilliere also testified she had not
discussed the case with defendant prior to trial. In order to impeach this testimony, the
prosecution sought to introduce a recording of a jailhouse phone call in which defendant
told Lemilliere that “[o]nce they get [her] on that stand it’s a fuckin’ wrap” and she could
“plead the 5th.” Lemilliere responded that her older brother told her “what to do.”
       The trial court ruled the recording admissible for impeachment purposes, but
ordered it to be redacted to remove the following statement from defendant: “Can you
see I am going to be going away for a while? You know that, right?” The trial court
explained the statement was “misleading” because “it implie[d] guilt in [the domestic
violence] case” even though defendant could have been referring to the fact that he would
be “going away” for his conviction in the petty theft case, a matter the trial court was
trying to keep from the jury. The trial court also explained it agreed with the
prosecution’s argument that the statement was an attempt to gain sympathy from
Lemilliere in order to influence her testimony, but noted the danger the statement might
also engender sympathy from the jury by improperly focusing their attention on “the
issue of penalty and punishment.”
       The recording was played for the jury. Outside the presence of the jury, defense
counsel informed the trial court that, while the transcript of the recording was properly
redacted, the recording itself contained the objectionable statement. Defense counsel
moved for a mistrial. The trial court denied the motion, explaining: “I would take it a lot
more seriously if it was evidence that went to the guilt or innocence of the defendant.
Your motion is noted for the record. I will deny a mistrial. The record will speak for
itself. I don’t regard the error as being sufficiently grave as to have deprived the
defendant of a fair trial.” The trial court further explained: “I am also instructing the jury
that they are to consider that whole tape solely for the purpose of impeachment and
credibility of the witness Lemilliere, and they are not to consider it for the truth of any of

                                              20
the statements that are in the tape. [¶] I think that cautionary instruction is sufficient to
remove any problem. And I don’t think it’s grounds for a mistrial.” The jury was so
instructed.
                                              B.
                                           Analysis
       If evidence considered by a jury renders a trial unfair, the trial court must declare a
mistrial. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) However, “[a] trial court
should grant a mistrial only when a party’s chances of receiving a fair trial have been
irreparably damaged . . . .” (People v. Bolden (2002) 29 Cal.4th 515, 555.) In other
words, “[a] mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30
Cal.3d 841, 854.)
       “It is only in the exceptional case that ‘the improper subject matter is of such a
character that its effect . . . cannot be removed by the court’s admonitions.’ [Citation.]”
(People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) As our Supreme Court has
repeatedly explained: “‘The crucial assumption underlying our constitutional system of
trial by jury is that jurors generally understand and faithfully follow instructions.’”
(People v. Smith (2007) 40 Cal.4th 483, 517, quoting People v. Mickey (1991) 54 Cal.3d
612, 689, fn. 17.) Here, the trial court appropriately instructed the jury that the phone
conversation between defendant and Lemilliere was to be “considered only for credibility
and impeachment of . . . Lemilliere, not for the truth of any statements in the phone call,”
i.e., not for the truth of defendant’s statement that he would be going away for awhile.
“Absent evidence to the contrary, and defendant has provided none, we presume the jury
followed this instruction.” (People v. Houston (2012) 54 Cal.4th 1186, 1214.) The trial
court did not abuse its discretion in denying defendant’s request for a mistrial.

                                              21
                                             V
                                        Section 654
       Finally, defendant argues the trial court should have stayed execution of the
sentences imposed on his convictions for making a criminal threat and assault pursuant to
section 654. We are not persuaded.
       As relevant, 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.”
       This section has been interpreted to preclude multiple punishment for “a single act
or indivisible course of conduct.” (People v. Assad (2010) 189 Cal.App.4th 187, 200.)
“‘The divisibility of a course of conduct depends upon the intent and objective of the
defendant. . . . [I]f the evidence discloses that a defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other, the trial
court may impose punishment for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct.’ [Citations.]” (People v. Akins (1997) 56 Cal.App.4th 331,
338-339; People v. Nubla (1999) 74 Cal.App.4th 719, 730.) However, as our Supreme
Court recently explained, a defendant may not be punished twice for a single act simply
because he or she harbored multiple criminal objectives. (People v. Mesa (2012) 54
Cal.4th 191, 199-200.) Instead, the intent and objective test determines whether a course
of conduct is indivisible and must therefore be treated as a single “act” within the
meaning of section 654. (People v. Akins, supra, 56 Cal.App.4th at pp. 338-339.)
Whether a defendant harbored multiple criminal objectives is a question of fact, the trial
court’s determination of which must be upheld on appeal if supported by substantial
evidence. (People v. Nubla, supra, 74 Cal.App.4th 730.)



                                             22
       Defendant argues that “[m]aking criminal threats, assaulting, and inflicting
corporal injury” arose out of an indivisible course of conduct because they were
“intimately connected temporally and spatially.” The Attorney General responds by
pointing out that the information charged defendant with inflicting corporal injury based
on “a laceration and swelling to the lip and bloody nose.” The assault charge was based
on defendant’s act of “stomping on [Lemilliere’s] face leaving a visible shoe impression
on the left cheek.” The criminal threat charge was based on “striking [Lemilliere] in the
head multiple times, [and] smothering [her] with a pillow while stating ‘Die Bitch Die.’”
According to the Attorney General, defendant “harbored distinct objectives and intents
when he both hit [Lemilliere] in the face and threatened to kill [her].” And while
acknowledging defendant had the same intent when he hit Lemilliere in the face and
when he later stomped on her face, the Attorney General argues he “‘had a chance to
reflect between offenses,’ and ‘each offense created a new risk of harm.’”
       We note at the outset that “the application of section 654 does not depend on the
allegations of the charging instrument, but on what was proven at trial.” (People v.
Assad, supra, 189 Cal.App.4th at p. 200.) The evidence supports the following sequence
of events. Defendant punched Lemilliere in the face multiple times, knocking her to the
floor. He then struck her head into the wall two times and said, “Oh, my god,” prompting
Lemilliere to respond: “See what you did to me?” Defendant then struck her head
against a stereo speaker, forced a pillow over her face, and said: “Die, bitch, die.”
Finally, defendant stomped on her face and left the room. Based on this set of facts, the
trial court could have found defendant intended to cause Lemilliere physical pain by
punching her in the face and striking her head against the wall. This more than sufficed
for a single conviction of infliction of corporal injury on a cohabitant. The trial court also
could have concluded from defendant’s “Oh, my god” comment, and Lemilliere’s
response, that there was enough of a break in the violence for defendant to reflect upon
and renew his decision to harm Lemilliere. (See People v. Trotter (1992) 7 Cal.App.4th

                                             23
363, 366-368 [consecutive sentences for two counts of assault with a firearm affirmed
where the defendant fired two shots at a pursuing police officer because “reflection was
possible” between trigger pulls].) Defendant then slammed her head into a speaker,
threatened to kill her, and stomped on her face. Accordingly, at the very least, defendant
could be separately punished for both inflicting corporal injury on a cohabitant and either
making the criminal threat or assaulting her by stomping on her face. The question
remains, however, whether he could be separately punished for both the criminal threat
and the subsequent assault.
       As mentioned, if the evidence supports the conclusion that defendant “‘entertained
multiple criminal objectives which were independent of and not merely incidental to each
other,’” then we must affirm the trial court’s decision to impose and execute sentence on
both convictions. (People v. Akins, supra, 56 Cal.App.4th at p. 338.) The record
supports the conclusion that defendant intended to place Lemilliere in fear for her life
when he held the pillow over her face and said: “Die, bitch, die.” While making this
threat, defendant harbored the simultaneous intent to cause her physical pain. This is
apparent from the fact that he slammed her head into a speaker immediately before
making the threat and stomped on her face immediately thereafter. Moreover, the
objective of causing Lemilliere physical pain was not merely incidental to the objective
of causing her to fear for her life because stomping on her face did not facilitate the
criminal threat. (Compare People v. Nubla, supra, 74 Cal.App.4th at pp. 730-731
[assault with a deadly weapon and inflicting corporal injury separately punishable; the
acts that caused the corporal injury did not facilitate the assault with the deadly weapon]
with People v. Perry (2007) 154 Cal.App.4th 1521, 1526-1527 [burglary and robbery not
separately punishable; adopting a fighting stance with a weapon while fleeing from the
property owner facilitated the objective of taking the property].)




                                             24
       We conclude substantial evidence supports the trial court’s conclusion that
defendant’s convictions for inflicting corporal injury on a cohabitant, making a criminal
threat, and assault were separately punishable.
                                             VI
                            Prior Prison Term Enhancements
       We do find an error in the judgment. As mentioned, defendant admitted one prior
prison term enhancement allegation in CM033637 and admitted three such allegations in
CM033079. However, the trial court imposed the mandatory one-year sentence for two
of these enhancements. We directed the parties to address in supplemental letter briefs
whether this was error and, if so, what the appropriate remedy would be. Defendant
argues the trial court failed to advise him of his Boykin-Tahl rights prior to accepting his
admissions in CM033079. Thus, argues defendant, we must strike one of the prior prison
term enhancements. The Attorney General concedes the trial court did not “go through a
complete advisement with respect to the prison priors” in CM033079, but argues, “the
totality of the circumstances” reveals defendant’s “admissions to three prior prison terms
were voluntary and intelligent.” And because the trial court failed to impose the
mandatory one-year term for each enhancement, the Attorney General urges us to remand
the matter to the trial court with directions to “impose the additional one year term for the
third admitted prison prior, or to provide a statement of reasons as to why the prior is
being struck by the court.” We conclude that two prior prison term findings must be
reversed because we cannot infer defendant voluntarily and intelligently admitted these
enhancement allegations.
                                             A.
                                  Additional Background
       As mentioned, in CM033637, defendant was convicted by jury of one count of
petty theft. The initial information, filed August 17, 2010, charged the offense as a
felony and alleged defendant had one prior theft-related conviction resulting in

                                             25
incarceration. (See former § 666, Stats. 2000, ch. 135, § 134, p. 1991 [requiring one prior
theft-related conviction].) The information also alleged one prior prison term
enhancement. (§ 667.5, subd. (b).) On January 24, 2011, the information was amended
to allege three prior theft-related convictions in order to satisfy the requirements of
section 666, which had been amended in the meantime to require three such convictions.
(Stats. 2010, ch. 219, § 15, effective Sept. 9, 2010.) The amended information still
alleged one prior prison term enhancement. While the prosecution sought to allege each
of the three prior theft-related convictions as prior prison term enhancements, defendant
objected to this portion of the amendment and the prosecution agreed to delete the
additional prior prison term enhancement allegations from the amended information.
With those two enhancement allegations deleted, defense counsel agreed to the amended
information and asked that the truth of the prior convictions be determined in a bifurcated
proceeding. The trial court allowed the amendment, agreed to the bifurcation, and
arraigned defendant on the amended information.
       On January 26, 2010, immediately prior to the jury’s verdict in CM033637, solely
for purposes of making the crime of petty theft a felony, defendant admitted to having
three prior theft-related convictions resulting in incarceration. Defendant also admitted
one prior prison term enhancement allegation. The plea form signed by defendant
recited: “Subject to verdict by jury, which is currently deliberating -― if convicted of
petty theft, I admit the following three theft priors but not for [section] 667.5.” The plea
form then listed the three prior theft-related convictions alleged in the amended
information. The plea form also recited: “Two prior thefts in this form will be stricken
for purposes of sentencing. This admission is merely to satisfy element of [section] 666.”
Defendant initialed boxes indicating he understood and gave up the right to be tried by
jury, the right to remain silent, and the right to confront and cross-examine adverse
witnesses. Prior to taking defendant’s admissions, the trial court asked defendant: “With
respect to this document, [defendant], have you read, understood, and signed this felony

                                             26
plea form in connection with your admission of those priors?” Defendant answered:
“Yes, sir.” The trial court then asked: “Have you indicated your willingness to give up
constitutional rights that are described by initialing the form in the margins?” Defendant
answered: “Yes.” After explaining the penal consequences of the admissions, the trial
court asked: “Will you be making these admissions freely and voluntarily?” Defendant
again answered in the affirmative. Defendant also expressed that he was neither
threatened nor promised leniency; nor was he under the influence of any drugs or
medications. The trial court then took defendant’s admissions and found a factual basis
in certified copies of defendant’s prison records.
       In CM033079, as previously stated, defendant was convicted by a separate jury of
one count of inflicting corporal injury on a cohabitant, one count of assault, and one
count of making a criminal threat. Both the initial information, filed August 17, 2010,
and the amended information, filed January 24, 2011, alleged three prior prison term
enhancements. During the trial in this case, on February 1, 2011, the trial court asked
whether defendant requested that the truth of these priors be determined in a bifurcated
proceeding. Defense counsel answered: “Yes.” The prosecution joined in the request.
The trial court then asked defense counsel: “Does the defense wish to waive jury, or
admit those prior prison terms in this case?” Defense counsel responded: “May I have a
moment?” The trial court then asked: “These are the same prior prison terms alleged in
the other case?” The prosecutor answered: “That’s right.” The trial court stated: “I
would be satisfied with an admission of those based upon the record in the other case.”
Defense counsel responded: “Your Honor, we are going to admit the priors for purposes
--” At this point, the trial court stated for the record that, in CM033637, “these same
prior prison terms were admitted, a plea form submitted in support of the admission, and
the court accepted the admission of those prior prison terms, found there was a factual
basis therefore, and found that he had waived his rights with a full understanding



                                             27
thereof.” The trial court then accepted defendant’s admissions to having served three
prior prison terms without any further advisements.
                                              B.
                                           Analysis
       A criminal defendant’s plea of guilty amounts to a waiver of three constitutional
rights: (1) the privilege against self-incrimination; (2) the right to a trial by jury; and
(3) the right to confront one’s accusers. Accordingly, the trial court must advise a
defendant of these rights before taking such a plea. (Boykin, supra, 395 U.S. at p. 243
[23 L.Ed.2d at p. 279]; Tahl, supra, 1 Cal.3d at p. 132 [“each of the three rights
mentioned -― self-incrimination, confrontation, and jury trial -― must be specifically
and expressly enumerated for the benefit of and waived by the accused prior to
acceptance of his guilty plea”].) For a waiver of these constitutional rights to be valid, it
must be knowing, intelligent, and voluntary. (Boykin, supra, 395 U.S. at p. 243.)
       In California, the Boykin-Tahl advisements must also be given before the trial
court may accept a criminal defendant’s admission that he or she has prior felony
convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.) “As an accused is entitled to a
trial on the factual issues raised by a denial of the allegation of prior convictions, an
admission of the truth of the allegation necessitates a waiver of the same constitutional
rights as in the case of a plea of guilty.” (Ibid.) The trial court must also advise such a
defendant of “the full penal effect of a finding of the truth of an allegation of prior
convictions.” (Id. at p. 865.)
       The lack of express advisement, and waiver, of each of the Boykin-Tahl rights
constitutes reversible error unless “the record affirmatively shows that [the admission] is
voluntary and intelligent under the totality of the circumstances.” (People v. Howard
(1992) 1 Cal.4th 1132, 1175.)
       In People v. Mosby (2004) 33 Cal.4th 353 (Mosby), our Supreme Court drew a
distinction between “silent-record cases” and cases of “[i]ncomplete advisement of

                                              28
Boykin-Tahl rights.” (Id. at pp. 361-363.) In the former situation, the record reveals “no
express advisement and waiver of the Boykin-Tahl rights before a defendant’s admission
of a prior conviction.” (Id. at p. 361.) In such cases, “we cannot infer that in admitting
the prior the defendant has knowingly and intelligently waived [the right to trial to
determine the truth of the prior conviction allegation] as well as the associated rights to
silence and confrontation of witnesses.” (Id. at p. 362.)
       After citing three cases in which no advisements were given, nor waivers taken,
our Supreme Court discussed People v. Johnson (1993) 15 Cal.App.4th 169 (Johnson)
(superseded on another point by statutory amendment as stated in People v. Howard
(2005) 34 Cal.4th 1129, 1137): “Although the record was not entirely silent in
[Johnson], it was so nearly silent as to be indistinguishable from the three cases just cited.
A jury convicted the defendant of three crimes, but before the jury was excused the trial
court took the defendant’s admission to having two prior convictions and having served a
prior prison term. The court did so without admonishing the defendant of his right to a
trial on the priors at which he could confront witnesses and need not testify. [Citation.]
The court made a fleeting reference to ‘“whether or not you want a jury trial,”’ and
without waiting for a response, the court then immediately asked the defendant, ‘“[W]ere
you convicted?”’ The defendant admitted the priors. [Citation.] Under the totality of the
circumstances, the Court of Appeal in Johnson had ‘no doubt’ that the defendant ‘was in
fact aware of his right to a jury trial, his right to confront witnesses, and his right to
remain silent, all of which he had just exercised in trial.’ [Citation.] Nonetheless, absent
any advisement of those rights, the Court of Appeal concluded that it was ‘impossible to
determine’ whether the defendant ‘not only was aware of these rights, but also was
prepared to waive them as a condition to admitting his prior offenses’ [citation], thus
rendering the defendant’s admission of the priors neither intelligent nor voluntary.”
(Mosby, supra, 33 Cal.4th at p. 362.)



                                               29
       The situation in Mosby, supra, 33 Cal.4th 353, unlike that in Johnson, involved an
incomplete advisement and waiver of the defendant’s Boykin-Tahl rights. Immediately
after the jury found the defendant guilty of selling cocaine, he was informed that he had a
right to a jury trial on the prior conviction allegation, waived that right, and admitted the
truth of the allegation. (Mosby, supra, at p. 364.) Our Supreme Court explained that in
such cases, the reviewing court “must examine the record of ‘the entire proceeding’ to
assess whether the defendant’s admission of the prior conviction was intelligent and
voluntary in light of the totality of circumstances.” (Id. at p. 361.) The Supreme Court
agreed with the Court of Appeal’s conclusion that “‘[i]t would exalt a formula (Boykin-
Tahl) over the very standard that the formula is supposed to serve (that the plea is
intelligent and voluntary) to suggest that a defendant, who has just finished a contested
jury trial, is nonetheless unaware that he is surrendering the protections of such a trial’
when after being advised of the right to a trial on an alleged prior conviction the
defendant waives trial and admits the prior.” (Id. at p. 364.)
       Here, like Johnson, supra, 15 Cal.App.4th 169, rather than inform defendant he
had the right to have a jury decide the truth of the prior prison term allegations, ask
whether he was willing to waive that right, and give defendant a chance to respond, the
trial court made a fleeting reference to whether defendant wanted to “waive jury, or admit
those prior prison terms,” stated it “would be satisfied with an admission of those based
upon the record in the other case” (in which defendant admitted one, not three, prior
prison term allegations), and then accepted defendant’s admissions without further
advisements. As was the case in Johnson, we find this situation to be indistinguishable
from cases in which the defendant was neither informed of, nor waived, the right to jury
trial. Also like Johnson, we have no doubt defendant was aware of his right to a jury
trial, his right to confront witnesses, and his right to remain silent, all of which he had just
exercised in trial, and all of which he waived in CM033637. Nonetheless, absent
advisement and waiver of the right to trial on the prior prison term allegations, “we

                                              30
cannot infer that in admitting the [prior prison terms] defendant has knowingly and
intelligently waived that right as well as the associated rights to silence and confrontation
of witnesses.” (Mosby, supra, 33 Cal.4th at p. 362.)
       We must therefore reverse two of defendant’s prior prison term enhancement
findings. Retrial of these allegations is permissible. (People v. Sifuentes (2011) 195
Cal.App.4th 1410, 1421.)
                                       DISPOSITION
       Two of defendant’s prior prison term enhancement findings are reversed, his
sentence is vacated, and the matter is remanded to the trial court for retrial of these
allegations and resentencing. The judgment is otherwise affirmed.



                                                         HOCH             , J.



We concur:



          ROBIE             , Acting P. J.



          MAURO             , J.




                                             31
