Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC590287
Duffy, J.
Defendant Christopher James Castillo was initially charged by information with battery on a police officer in violation of Penal Code sections 242-243, subdivision (c)(2) (count 1); assault in violation of sections 240/241, former subdivision (b) (see now § 241, subd. (c)), a misdemeanor, (count 2); and two counts of resisting or deterring an officer in violation of section 69 (counts 3 & 4). The information also alleged that defendant had suffered a prior felony conviction within the meaning of section 667.5, subdivision (b)—burglary. All the charges stemmed from an incident occurring on April 29, 2005, in which defendant, unprovoked, hit a police officer on the street in the face and then resisted arrest.
Further statutory references are to the Penal Code unless otherwise indicated.
On September 29, 2005, defendant was found not competent to stand trial and he was committed to the State Department of Mental Health for a maximum term of three years. On January 25, 2006, defendant was determined to have been restored to competence and on March 8, 2006, the court granted defendant’s Faretta motion to represent himself and he filed a Faretta waiver.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Later in March 2006, the information was amended to add consolidated misdemeanor claims for battery in violation of sections 242-243, subdivision (a) (count 5); battery at a hospital in violation of sections 242-243.2 (count 6); battery upon a non-inmate in violation of section 4131.5 (count 7); battery upon specified persons in violation of sections 242-243, subdivision (b) (count 8); battery upon a noninmate in violation of section 4131.5 (count 9); and assault on a custodial officer in violation of sections 240-241.1 (count 10). The consolidated charges stemmed from incidents that took place on April 7, 2005, April 30, 2005, May 20, 2005, and August 14, 2005, most involving defendant’s unprovoked attacks on correctional or peace officers.
Following a jury trial lasting from March 20, 2006, through April 7, 2006, defendant was convicted on all counts except 1 and 7, on which the jury hung. He represented himself during the course of the trial but had the benefit of advisory counsel from the time the jury was empanelled until that lawyer became counsel of record at defendant’s request during jury deliberations. The two counts on which the jury hung were later dismissed and on August 11, 2006, defendant was sentenced on the remaining counts to a prison term of three years, eight months.
Defendant’s primary contention on appeal is that the trial court erred by not declaring a doubt as to his competence during the trial under section 1368, warranting reversal or, alternatively, a remand for a retrospective determination of his competency. He also contends that it was error for him to have been convicted (on counts 9 & 10) of both battery and assault, a lesser-included offense arising from the same incident, or, alternatively, that even if conviction on both these counts was proper, punishment on both counts violated section 654.
We reject the first two of defendant’s claims but conclude that the third has merit, a point that respondent concedes. We accordingly stay execution of defendant’s sentence on count 9 and otherwise affirm the judgment.
STATEMENT OF THE CASE
We take the facts concerning the crimes from the trial testimony.
On April 7, 2005, defendant was a patient in the “psych services department” at Santa Clara Valley Medical Center, having voluntarily checked himself in after feeling suicidal. Feeling uncomfortable with the hospital’s environment, defendant expressed his desire to go home. Not having been permitted to leave, defendant attacked a security officer on duty at the hospital, punching him on the side of the face and continuously swinging violently as the officer tried to restrain him. Defendant made contact with the officer’s head a few more times. Another employee called for assistance and defendant was ultimately restrained with the help of three other employees. Defendant was placed in seclusion and medicated. Later that day, defendant assaulted another patient at the hospital while that patient was watching television. A hospital employee restrained defendant. Police later arrived and arrested defendant and transported him to the main jail facility for booking.
These facts form the basis of counts 5 and 6.
On April 29, 2005, Sergeant Curtis Jackson, while in uniform, walked out of a restaurant in downtown San Jose. He saw defendant walking on the street until defendant disappeared behind a pillar. As Sergeant Jackson walked past the pillar, defendant punched him in the face near his chin from about a foot away, causing soreness. After he had been hit, Sergeant Jackson forced defendant, who was struggling and resisting, to the ground in order to restrain him. While doing so, Sergeant Jackson punched defendant in the stomach. When that failed to restrain him, Sergeant Jackson pinned defendant on the ground, placing his knee into defendant’s back. Another patron of the restaurant came to Sergeant Jackson’s aid and held down defendant’s legs to keep him from kicking. Sergeant Jackson’s hand and shoulder were injured in the course of the struggle. With defendant restrained, Sergeant Jackson called for assistance, and Officer Hayward immediately responded and handcuffed defendant. Sergeant Jackson arrested defendant and Officer Hayward placed him in his patrol car while defendant continued to resist—twisting, turning, pulling, and fighting all the way to the car. Officer Hayward tried to calm defendant while defendant was sitting in the car, using techniques designed for dealing with mentally ill persons or persons in crisis. Defendant spat in the direction of Officer Hayward’s face but missed hitting him. Defendant then kicked the door of the car near where Officer Hayward’s hand had been placed, narrowly missing contact with the officer’s hand. Defendant required further restraint and was later taken to the jail and booked. Sergeant Jackson later received follow-up medical treatment for the injury to his shoulder.
These facts form the basis of counts 1 through 4.
The next day, on April 30, 2005, two correctional officers who worked at the main jail where defendant was confined were conducting a routine check of cell bars and windows. One of the officers entered defendant’s cell after the other officer had opened the door and entered. During these checks, inmates are supposed to stand facing the cell wall with their hands behind their backs for safety reasons. As one of the officers entered defendant’s cell, defendant turned from his position facing the wall and hit the officer in the chin area. Both officers responded by taking defendant to the ground by force, covering him, and placing him in handcuffs. Defendant was escorted out of his cell and taken to a safety cell on a different floor. He suffered a black eye as a result of his struggle with the two officers inside his cell.
These facts form the basis of count 7.
On May 20, 2005, defendant was in Department 23 at the Hall of Justice, presumably for a legal proceeding. At one point, defendant loudly and angrily said to one of the sheriff’s deputies on duty in the courtroom, “Get out of my way” as he rammed his shoulder into the deputy while walking past him near the doorway of the courtroom. The deputy was knocked back about a foot and he dropped the clipboard he had been holding. With a slight struggle, the deputy restrained defendant and brought him to the floor. Defendant was then arrested.
These facts form the basis of count 8.
On August 14, 2005, Shonda Santos, a correctional officer, was working at the main jail. She was in uniform, wearing a long-sleeved shirt with the sleeves rolled up because it was a hot day. Officer Santos was providing lunch to inmates. Defendant was housed in a single, observational cell. The cell had a tray slot with a padlock that first had to be unlocked in order for the officer to pull the tray down and deliver the meal into the cell. The size of the tray slot was about 12 by seven inches. As Officer Santos handed defendant his lunch through the tray slot, defendant grabbed her left wrist and began to attack her. Officer Santos was able to put defendant’s thumb into a hold and said, “That’s not very nice.” She then let go as she thought defendant was going to back off. When she went to close the tray slot, defendant grabbed her arm again, pulling it further inside his cell, and he started stabbing her arm with a pencil. Officer Santos ordered defendant to stop two or three times and threatened to pepper spray him but he continued to stab her arm. Officer Santos then sprayed pepper spray towards defendant’s face and he turned his face to the side. Defendant still did not stop and Officer Santos threatened to spray him again if he continued. Defendant did not comply and Officer Santos sprayed him again, this time hitting him in the face. Defendant finally let go and Officer Santos called for back up as she was suffering from the pepper spray as well and the tray slot was still open. Officer Santos treated her own wounds, which were bleeding though not serious. About a month later, defendant apologized to Officer Santos for the incident. At the time of trial, Officer Santos still had a few scars.
These facts form the basis of counts 9 and 10, which are the subject of defendant’s second and third contentions on appeal.
II. Legal Proceedings
A. Relevant Pretrial Events
Defendant was originally charged with only two counts, both arising from the incident on April 29, 2005, involving Sergeant Jackson and Officer Hayward (case number CC590287). He was held to answer on May 23, 2005, after a preliminary hearing and the information was amended to include two additional felony counts arising from the same incidents.
On June 15, 2005, after defendant’s attorney had declared a doubt as to his competency, the trial court (Judge James C. Emerson) appointed Ashley Cohen, Ph.D, to examine defendant under section 1369, subdivision (a), for the purposes of determining his competency to stand trial, i.e., his ability to “(a) understand the nature of the charges against him and understand criminal proceedings, and (b) assist counsel in the presentation of a defense in a rational manner.”
Dr. Cohen examined defendant on July 14, 2005, and concluded that defendant was experiencing hallucinations and “responding to internal stimuli.” Defendant was noted to be very depressed, to have difficulty “keeping his focus on the current topic,” and to have “well below-average” mental control. His “display of social judgment was limited” and he “demonstrated almost no insight into his situation.” The doctor’s report further noted that defendant was reported to have had psychiatric problems since adolescence and he had been hospitalized for being extremely depressed and suicidal, “being gravely disabled secondary to psychosis, and for being a danger to others, exhibiting ‘extremely unpredictable, violent behavior.” Defendant had been prescribed a number of antipsychotic medications but he “admitted that he often does not take his medication as directed. He was refusing all psychotropic medication several weeks ago, thus it was discontinued in mid-May. . . . On [July 4, 2005,] he was found lying in a fetal position on his cell floor, crying.” On the day of the examination, defendant denied having “any auditory hallucinations” but said that he “does hear voices at times.” The report also noted that defendant had a significant history of substance abuse, with chronic use of “IV amphetamines, cocaine, and heroin.”
The report concluded that defendant was not competent to stand trial. Although defendant “knew he was being prosecuted for alleged physical assaults on police and custody officers,” he was “unsure if these were felonies or misdemeanors, and became confused [while] attempting to explain the difference between the two. He did not know the range of penalties to which he [was] subject for the various alleged crimes. He was vaguely aware of the types of pleas he might enter, but was confused about what he could or would say in response to a question of how he [would] plead[]. He has a basic awareness of the roles of courtroom personnel, but appeared unable to focus on this topic long enough to generate adequate responses.” When asked to discuss “the progress of his court cases, [defendant] said he cannot ‘think straight’ and so does not know how to help his attorney.” Defendant did not know “what is likely to happen when he next goes to court, nor could he decide what he hopes will happen. He said he does not care what happens to him in court and added that he did not care what happened to anyone else that might be in the courtroom, either.” The doctor finally noted that there was some evidence that defendant’s psychiatric symptoms persist “in the absence of substance abuse, and despite being given psychotropic medication. While the defendant has minimally adequate cognitive abilities to participate in his trial, he appeared today to be experiencing psychotic symptoms, to a sufficient extent that they prohibited him from effective and logical communication. Because of these problems[,] he is having difficulty with both a full understanding of his legal situation, as well as a markedly diminished ability to assist counsel in preparing a defense. Thus he does not meet criteria for being competent at the time of this evaluation.”
On August 10, 2005, after a second examination by another doctor apparently resulted in a finding of defendant’s competence, the court appointed David F. Berke, Ph.D., for a third opinion under section 1369, subdivision (a). Dr. Berke interviewed defendant on September 17, 2005, and noted in his report that defendant was “socially inappropriate and almost incapable of any sort of forthright communication,” and that he “hears voices and experiences hallucinations.” Defendant’s responses to questions lacked “any sort of insight” and he “appeared to be confused.” He also seemed to have “little ability to process information that is relevant to his defense; he did not know his attorney’s name and he did not know the penalty for his conviction.” Dr. Berke noted that defendant had an extensive psychiatric history, having been “involuntarily psychiatrically hospitalized on several occasions,” and having been “51-50ed” at several facilities. Defendant had been hospitalized for “being extremely depressed and suicidal, for being gravely disabled due to psychosis, for being a danger to himself and others, and for being violent. Previous records indicate that his pattern is to discontinue taking psychiatric medication when released to the community, to resume abusing drugs, to discontinue outpatient treatment, and to develop acute psychiatric symptoms.”
The record does not include documentation concerning the appointment of a second doctor or his or her written report finding defendant competent to stand trial.
Dr. Berke’s report further observed that defendant “may have been hearing voices at the time of the interview” and that he “had difficulty focusing on the subjects.” “His attention span was impaired” and he “became anxious and agitated when he lost his train of thought.” Defendant admitted “in the past to having experienced major psychiatric symptoms such as major depression, extreme paranoia, visual hallucinations, auditory hallucinations, delusions, perceptual distortions, and misinterpretations of reality. There were no obsessions or compulsions. Insight into his mental illness was nil.” Although defendant “understood the charges against him,” he did not “comprehend what the consequences might be if he were convicted of one or more of the charges.” Defendant “understood the role of the judge, the role of the public defender, and the role of the district attorney.” But he “had impaired ability to understand the role that evidence plays in a trial. He also had an impaired ability to understand how his legal case was proceeding.” In Dr. Berke’s judgment, defendant also had an “impaired ability to assist his attorney in his own defense. It did not appear that he is able to communicate with his attorney with effective and logical communications. He does not appear to have a full understanding of his legal situation.” Dr. Berke’s report further noted that defendant had “an impaired ability to make rational decisions,” all to the conclusion that defendant did not meet the criteria for competence to stand trial.
Based on Dr. Berke’s report, the court found defendant incompetent to stand trial on October 19, 2005. He was ordered committed the next day to the State Department of Mental Health under section 1370, subdivision (a)(2), for a maximum term of three years, minus certain credits, and criminal proceedings were suspended.
On January 25, 2006, after receipt of a report from Napa State Hospital that defendant had been restored to competency, the court reinstated criminal proceedings.
Defendant filed his Faretta motion and waiver form on March 8, 2006, in which he requested to represent himself at trial. The court (Judge Edward Lee), in granting the motion, noted that the Faretta waiver form that defendant had obtained through his own research was “more detailed” and “much better” than what the court had. Although the court advised defendant that it was not a good idea to represent himself, and that he wouldn’t be “cut any slack,” the court stated that “there [was] nothing to suggest . . . at this point that [defendant] is not [competent]” and that defendant appeared “to meet the minimum standards” for self representation. In response to the prosecutor’s suggestion that the court inquire if defendant was taking his medication, and defendant’s objection to that inquiry because he had already been determined to be competent, the court declined to so inquire. But the court expressed concern that if defendant’s competency had been restored with the help of medication, that he might stop taking his medication and “have some challenges” with competency. Because defendant would be representing himself, there would be no one “who can sort of watch out for that” and the court’s “biggest fear” was that if there were to be such a “slip-back or any kind of problem like that,” defendant could be at a disadvantage because he would be “incompetent and incapable of representing [himself].” But the court noted that defendant was presently competent and “[s]hould that change, there [were] procedures to protect him on down the line.”
The court (Judge Ron Del Pozzo) heard preliminary trial matters and pretrial motions on March 16, 2006. Defendant asked whether he needed to be re-arraigned on the charges after the previous suspension of criminal proceedings. The judge answered that that was not necessary but noted that it was a “[g]ood question, though.” The judge also acknowledged that although previous proceedings had been suspended, defendant “seem[ed] perfectly fine now . . . .” Defendant expressed that he did not want the prior conviction allegation bifurcated and that he wanted “dress-out” clothing for trial. The court responded that it could not provide clothing but that it could arrange for a request to be made to the public defender’s office, which defendant declined. Defendant also requested that he not be shackled during the course of the trial and the court assured him that he would not be. Defendant further indicated that he would not be waiving time such that the trial needed to begin the following week.
B. The Trial
On March 20, 2006, the court, over defendant’s objection, consolidated two cases (case no. CC587874 with no. CC590287 as the lead case) and the information was amended to reflect this, thus adding 6 misdemeanor counts relating to the incidents on April 7, 2005, April 30, 2005, May 20, 2005, and August 14, 2005, with those of April 29, 2005, which had formed the basis of the original charges. Defendant’s request to represent himself in all the consolidated matters was granted, with the court again advising that self-representation was a bad idea but stating that based on its “observations of the defendant the last few days . . . he is capable of defending himself.”
At the time of the consolidation, defendant was also facing arraignment on three additional felonies in separate cases in which he was also representing himself, all based on the same sort of assaultive conduct (CC591853, CC594251, and CC595492). Defendant indicated his preference that these other charges not be consolidated with the pending charges for trial and they were not.
In response to the court’s inquiry about whether defendant wanted to make any effort to settle his cases, he said, “Not at all.” Defendant also questioned why he had not received any photos of victim injuries or documentary evidence that any of his victims had received medical treatment. The prosecutor provided some photographs at that point, and stated that the victims would be asked to testify about their injuries rather than the prosecution producing medical records. Defendant again declined the court’s offer to request the public defender’s office to provide defendant dress-out clothing for trial.
The court reconvened proceedings on March 23, 2006, for the purpose of disposing of any other pretrial matters. Defendant moved to dismiss the case based on, among other things, “insufficient evidence” because there was “no proof of any injuries, no photographs, it’s all hearsay.” The court denied the motion and explained to defendant that oral testimony is proof such that the prosecution did not need to offer documentary evidence of victims’ medical treatment to prove its case. The court said, “Evidence can be testimony, writings, records, whatever they want to produce. It’s up to the jury to decide whether it’s sufficient to prove the charges.” Defendant responded, “I didn’t expect [the prosecutor] to say there was no proof. It kind of threw me off,” to which the court replied, “She never said there wasn’t proof. She said she didn’t have medical records.”
The court inquired again whether defendant was sure he did not want an attorney, to which defendant replied, “No, I’m fine.” Defendant also questioned whether the consolidation of the pending cases had actually happened, and the court explained that this had already occurred. Defendant also asked for reporters’ transcripts of the proceedings that had occurred to date, and the court granted that request. The prosecutor requested that counsel be appointed to assist, but not represent, defendant as he “seem[ed] to be getting hung up on technicalities and such” but defendant said, “No, I’m fine. I can handle it.” Defendant brought to the court’s attention that he was supposed to be arraigned on his three other pending felonies in another department on a day that was scheduled for trial, and the court thanked him for doing so and indicated that arrangements would be made to avoid conflicting appearances.
The court reconvened for trial on March 27, 2006, and defendant again moved to dismiss the case, arguing this time that he had been denied a speedy trial and reasserting that he had never waived time or been arraigned on certain of the charges. The People argued in opposition, citing that defendant had previously waived time and that the matters were timely brought to trial after he had been restored to competency. The court denied the motion.
After the jury was empanelled but dismissed for the day, defendant handed the court documents purporting to be a petition for writ of mandate, seeking review of prior rulings the court had made. The court requested the services of a public defender to assist defendant with this filing but that office ultimately declared that it had a conflict, resulting in the court’s appointment of an attorney from Legal Aid for the purpose of assisting defendant with his writ filing.
These filings, which are not included in the record, were later determined by Legal Aid not to have been true writ filings but rather other kinds of requests that were either not timely or irrelevant to the trial, and they were thus not pursued.
And the court arraigned defendant on the three new, additional felony matters in which he was already representing himself (case nos. CC591853, CC594251, & CC595492). Contrary to his previous position, defendant then asked that these new charges be consolidated with the other pending consolidated cases. The court declined to consolidate the new cases with the pending cases because defendant had not provided the prosecution with prior notice of his request. Defendant pleaded not guilty to the new charges and said that he would not waive time. Those matters were set for trial to begin a month later.
The charges in the first of the new cases were battery upon a custodial officer, allegedly taking place on May 2, 2005, in violation of sections 242-243.1 with a prior conviction allegation. In the second case, they were battery upon a custodial officer, allegedly taking place on May 18, 2005, in violation of sections 242-243.1 with a prior conviction allegation. In the third case, they were battery upon a custodial officer, allegedly occurring on June 14, 2005, in violation of sections 242-243.1 with the same prior conviction allegation.
Trial in the pending consolidated cases resumed the next morning and defendant requested that his Legal Aid counsel be appointed as advisory counsel to assist, but not represent, him through the course of the trial. Before opening statements, attorney Annrae Angel was so appointed and she appeared that morning, having no previous knowledge about defendant or the pending trial. She was given little opportunity to speak with defendant before the jury was brought in to hear the People’s opening statement, which was followed by that of defendant.
Defendant also requested on that day that Attorney Angel be appointed as advisory counsel to assist him in the other pending cases.
The opening statements were not transcribed as part of the record.
The opening statements were followed by the testimony of Sergeant Curtis Jackson and Officer Hayward, which related to counts 1 through 4. Defendant cross-examined both witnesses, which examination included several questions about the fact that no photographs or medical records had been offered to prove Sergeant Jackson’s injury sustained as a result of the assault. As occurred throughout the trial, the court had to caution defendant and the jury about defendant attempting to offer testimony as part of his questioning of the witnesses. The court also sustained many, but not all, of the prosecutor’s objections to the form of defendant’s questions.
The next witnesses were Romeo Javier, an employee at the “psych services department” at Santa Clara Valley Medical Center, and Deputy Walter Macedo, both of whom testified as to count 5, defendant’s assault on a fellow psychiatric patient on April 7, 2005. Defendant cross-examined both witnesses. This testimony was followed by that of Anthony Dominguez and Ardith Stofel, security officers for Santa Clara Valley Medical Center, about defendant’s assault on Dominguez on the same day, which was the subject of count 6. Defendant also cross-examined these witnesses and questioned Dominguez about the absence of medical records or photographs to document his injuries, inquiring whether there was any “proof” that defendant had hit him “other than [the witness’s] statement.”
This testimony was followed by that of Anthony Guerra, a correctional officer at the main jail whom defendant had assaulted, which was the subject of count 7. Defendant again questioned the lack of documentation of the witness’s injuries. Also that day, defendant chose, after consultation with advisory counsel who advised otherwise, not to have the court bifurcate the prior conviction allegation and to have this issue also determined by the jury.
Trial continued the next day, March 29, 2006, with the testimony of Officer Vargas, the correctional officer who was with Officer Guerra at the main jail when defendant hit Officer Guerra in the face as the officer entered defendant’s cell for a bars and windows check. As with the rest of the witnesses, defendant cross-examined Officer Vargas, which included questioning about a grievance defendant had filed as a result of the incident and the rules applicable to the degree of force correctional officers may use to restrain inmates.
The next witness was Maria Aguilar, who works in a medical office where Sergeant Jackson received medical treatment for his shoulder injury. Ms. Aguilar was called as a rebuttal witness because defendant had raised the issue of the absence of medical records to evidence Sergeant Jackson’s injury. Defendant objected to the witness because, as a rebuttal witness, she was not included on the People’s witness list and because the witness brought records, which had not been turned over to defendant before the testimony was offered. The court admonished the prosecutor and conducted an Evidence Code section 402 hearing out of the presence of the jury in order to determine the admissibility of the documentary evidence. Defendant raised the question whether Sergeant Jackson’s medical records, in the form they were offered, could be tied to the particular injury that Sergeant Jackson claimed as a result of his struggle to restrain defendant or related instead to prior injuries. The court observed that this was “a good objection” and accepted the records subject to a motion to strike. During the section 402 hearing, defendant objected to the medical records on the basis that they contained diagnostic information and there was no expert to lay a foundation for these matters. The court independently viewed the records and noted that they also contained treatment plans and physicians’ conclusions, which would only be admissible through expert testimony. The court thus allowed Ms. Aguilar to testify before the jury about the dates of Sergeant Jackson’s medical appointments relating to the particular injury but nothing beyond that. And the prosecutor redacted improper and inadmissible matter from the medical records before their admission into evidence over defendant’s objection.
The next witness was Deputy Ford, a sheriff’s deputy assigned to provide security to the superior court who observed defendant ram into another deputy in the courtroom, the subject of count 8. This testimony was followed by that of Shonda Santos, the correctional officer whom defendant attacked by stabbing her arm with a pencil as she passed his lunch through his jail cell tray slot. Defendant cross-examined both of these witnesses. The People also briefly recalled Sergeant Jackson to further testify about the medical treatment he received as a result of his shoulder injury. Defendant requested that three of the prosecution witnesses be recalled so he could ask follow up questions and lay a foundation with respect to certain photographs of the fellow patient whom he had assaulted while at Valley Medical Center. The court asked for and received a stipulation from the prosecutor that the photos could be admitted into evidence and defendant withdrew his request to recall the witnesses.
The People rested their case after calling the latent fingerprint examiner for the San Jose Police Department, who testified concerning defendant’s prison prior for burglary.
Defendant then testified on his own behalf. With respect to his attack on Sergeant Jackson, defendant said that he lived nearby, that he was in a hurry, and that his collision with Sergeant Jackson was an accident. He denied having spat at Officer Hayward. He also denied having hit anyone at Valley Medical Center but characterized those altercations as struggles in response to his not being allowed to leave the facility. He further testified that he did not hit anyone in his jail cell but that Officers Varga and Guerra beat him there and gave him a black eye. With respect to Correctional Officer Santos, defendant said that he had put his pencil out towards her as a request to have her sharpen it and that she made cruel remarks to him all the time and would throw his lunch at him. He further described terrible treatment he received while incarcerated and the grievances he filed as a result of that treatment. On cross-examination, defendant was asked about his prior felony convictions and he testified as to count 8 that he had accidentally bumped into the courtroom deputy as he got up to go to the bathroom, after which he told the deputy, “Excuse me, I have to go pee.” After his testimony, defendant moved for admission of his exhibits into evidence and the court admitted them, some over the People’s objections.
Out of the presence of the jury, defendant’s advisory counsel informed the court that if she were representing defendant, she would request that the jury be instructed on lesser-included offenses with respect to some of the counts but that defendant did not seem to understand the value of this strategy. Upon hearing this, defendant insisted that he did understand this position but that he did not want the jury so instructed so it would have to find on the existing felony charges without the option of finding him guilty on lesser-included offenses. The court explained that instructing the jury on lesser-included offenses (with respect to counts 1, 5, 6, 7, & 9) might mean that defendant would serve less time if he were to be convicted. Defendant indicated his understanding of this but again insisted that he did not want the jury so instructed. After discussions with the prosecutor, the court ultimately concluded, based on the evidence, that some instructions regarding lesser-included offenses would be given to the jury as requested by the People and in spite of defendant’s objections. Defendant also did not want any instructions given with regard to self-defense and based on the evidence, the court agreed. Defendant had some input into the final form of several of the jury instructions. And, the next day, he brought two errors to the court’s attention during jury instruction, for which the court thanked him.
The People and defendant delivered their final arguments to the jury. The court sustained the prosecutor’s objections to defendant’s argument several times on the basis that he was arguing matters not in evidence. The jury then began its deliberations.
Jury deliberations continued on April 3, 2006, and at the end of the day, the jury submitted two questions to the court, which it did not address until the following morning, when the jury submitted more questions. As the court began to discuss these issues outside the presence of the jury, defendant requested legal representation. He explained that he would “never do pro per again” and was very concerned that if convicted, he would lose credit for time served with respect to the remaining three pending cases. He said, “I’m scared. I’m so sorry I tried this. I had no other choice. The attorneys I had, they were railroading me. The misdemeanors were like the statutory has passed and nobody has helped me [sic].” Defendant then withdrew his Faretta waiver and attorney Angel, his advisory counsel, was appointed to represent him in the case for all purposes. The court then answered the jury’s questions after discussing those matters with counsel.
At some point during jury deliberations, defendant asked attorney Angel whether she could obtain dress-out clothing for him. She responded that it was too late for that because the jury had already seen him in prison clothing throughout the trial and a change of clothes at that point might look suspicious to the jury.
That afternoon, the jury informed the court that it was deadlocked on count 7 and submitted an additional question. The court instructed the jury that it need not further deliberate on that count if it could not reach a verdict and it provided a response to the question. The jury then submitted an additional question on a lesser-included charge with respect to count 1, as to which the jury also indicated it could not reach a verdict. The court accepted the jury’s verdict on the remaining eight counts, which was guilty as to all, and the court declared a mistrial as to counts 1 and 7. The court also appointed attorney Angel as defendant’s counsel in the three remaining unconsolidated cases.
Three days later, defendant filed a Marsden motion to relieve attorney Angel as his counsel in all remaining cases.
People v. Marsden (1970) 2 Cal.3d 118, 123.
The motion, which is mostly typed, includes handwritten notes as to the insufficiency of counsel’s representation. But the copy of the document that is included in the record is poor and illegible. Thus, we cannot ascertain the basis of the motion as to attorney Angel from the document.
Six weeks later, while defendant was awaiting sentencing in the consolidated cases and after several continuances, his Marsden motion was heard before Judge Sharon Chatman, who had been assigned as the new trial judge with respect to the two counts included in the consolidated cases as to which the jury had previously hung. At the hearing, defendant was frequently disruptive and disobedient of the court’s directives and he appeared to have difficulty focusing on the Marsden issues as ordered by the court. He was removed from the courtroom twice.
In support of his motion, defendant told the court that he no longer wanted attorney Angel to represent him because she had mishandled his writ filings and did not ask for a stay of the trial while his petitions for writ were pending. He also cited that the jury had heard Ms. Angel and the prosecutor talking in the hallway, which should have resulted in a mistrial. And he cited that during jury deliberations, the jury observed defendant in shackles as he was being transported, which also should have resulted in a mistrial. Defendant also cited that attorney Angel permitted the two counts on which the jury had hung to be immediately re-calendared after the verdict. And he insisted that he had never been arraigned on the two of the felony counts, a matter that had been a frequent topic of discussion during the trial with Judge Del Pozzo repeatedly having to explain to defendant that that he was mistaken.
Judge Del Pozzo had dealt with this incident during the trial, which occurred while attorney Angel was advisory counsel only, and determined that the jury had not heard any of the discussion.
Defendant further cited in support of his Marsden motion that Sergeant Jackson’s medical records were inadmissible but had nevertheless been admitted at trial, for which he blamed attorney Angel, and he accused the prosecutor of having “falsified” the records by redacting them. He further accused Ms. Angel of having allowed the lesser-included offenses to go to the jury and of not having obtained dress-out clothing for him for trial. He said he did not get along with her, that he didn’t trust her, and that she was a liar. He maintained his innocence, requested reversal of his conviction, and release on his own recognizance.
After attorney Angel responded to the court’s inquiries concerning defendant’s complaints about her representation, the court denied defendant’s Marsden motion and provided its reasoning for that decision. The court observed that defendant had been diagnosed with mental illness and that in the course of the upcoming trial “[w]e’ll all try to work with him within that mental illness.” The court also said, “It will be his choice on whether or not he wants to cooperate. We will take it day by day. I’ll evaluate day-by-day a good relationship with him. . . . I’m not clear if he is on his medication.” The court requested Ms. Angel as defendant’s counsel to find out if he was taking his medication and said, “I cannot order him to take it. I can recommend he take[] it and I think if he [does take] it, . . . he will see things a lot [more clearly].”
Attorney Angel responded concerning her relationship with defendant that “we actually did okay during the trial. Even he was acknowledging, for the most part, there was a relationship there. It was only after the verdict came in that it sort of switched a little bit as far as the—[defendant] not communicating . . . with me as much.” The court agreed that it was apparent that defendant had had a relationship with attorney Angel during the trial and that he had listened to her, sometimes taking her advice and other times rejecting it, as was his prerogative.
Six days later, on May 23, 2006, the court entertained scheduling issues with respect to the retrial of the two counts on which the jury had hung. Defendant was again disruptive and maintained that he did not want to be represented by his counsel and he was removed from the courtroom and then returned. Defendant continued to be disruptive, to interrupt the court, and to express that he did not want to be represented by attorney Angel, reiterating several of the reasons he had expressed during the prior Marsden hearing. He was removed from the courtroom three more times.
The court then conducted another Marsden hearing in closed session. At that point, defendant accused attorney Angel of being prejudiced against him because he is “Mexican” and he reasserted the same issues against her as he had raised previously. After further discussion by defendant, the court again found no basis to grant a Marsden request and had defendant removed from the courtroom again. On the prosecutor’s motion and over defense counsel’s objection, the court consolidated for trial the two counts on which the jury had hung with the three remaining cases.
Prior to trial on the newly consolidated counts, counsel declared a doubt as to defendant’s competency as to the matters set for trial but he was nevertheless determined to be competent on June 29, 2006.
Paul Koller, Ph.D., examined defendant on June 1, 2006, and his report is dated June 8, 2006. The report concluded that defendant was competent to stand trial and it further noted that defendant’s medical records indicated that he was taking and “had been stabilized on” anti-psychotic medication. Although the report observed that defendant “evidenced a profound lack of insight into the nature or severity of his mental illness,” defendant “appeared to be relatively stable psychiatrically at the time of the interview. There was no evidence of acute psychosis, mood disorder, or behavioral dyscontrol during the interview. Much of this may be attributable to his monitored psychiatric medications, enforced sobriety, and the structure of incarceration.” The finding of competency was based on Dr. Koller’s conclusions that defendant was “fully aware of the roles of all key court officials, the possible consequences he face[d], and the range of legal strategies available. At present, he appears able to monitor and contain his behavior, and he is highly motivated to avoid excessive punishment.” The report also concluded, however, that defendant could become legally incompetent and “remains capable of extremely poor judgment regarding the conduct of his case” but that his “mistrust [of his counsel] and poor judgment remain within the bounds of legal competency.”
On July 13, 2006, defendant was again before the court on a Marsden hearing on all pending matters, this time before Judge Diane Northway. Defendant repeatedly interrupted the court and counsel and was just as repeatedly admonished by the court, which observed that defendant didn’t “have a consistent train of thought or consistent form of expression.” Defendant again raised the same complaints against attorney Angel as he had raised before, and some new ones. At one point, defendant said that he had been prejudiced by counsel’s conduct and the jury would have returned a not guilty verdict but for it. The court responded, “if you acted this way in front of the jury, I doubt it,” to which defendant replied, “I didn’t.” The court denied the Marsden motion on the basis that defendant had not established sufficient grounds.
Judge Northway ordered separate reporters’ transcripts with respect to the matters as to which defendant had already been convicted and was awaiting sentencing and those set for trial. The record on appeal includes only the transcript relating to the matters that were then awaiting sentencing and that are the subject of this appeal.
On August 11, 2006, the time set for sentencing, the court (Judge Ron Del Pozzo) heard defendant’s motion to reduce his felony convictions under section 69 (counts 3 & 4—interference with a police officer) to misdemeanors in the interests of justice and his motion for new trial, both of which were filed by counsel. The new trial motion was made on the grounds of insufficiency of the evidence and that the verdict was contrary to the evidence. It was not made on the basis of defendant’s asserted incompetency.
At the hearing, defendant attempted to file a written challenge to Judge Del Pozzo under Code of Civil Procedure section 170.1 and several other motions over his attorney’s objection. The court refused to hear those matters and denied the motions for new trial and to reduce the felony convictions. Consistently with the probation report’s recommendation, the court then sentenced defendant on the felony counts 3 and 4 to three years, eight months in prison, which was derived by the midterm of two years on count 3 plus one third the midterm of eight months consecutive on count 4, with an additional one-year consecutive on the prison prior, less custody credit. On each of the misdemeanor counts 2, 5, 6, 8, 9, and 10, he was sentenced to six months in county jail with the same custody credits, to run concurrently with the prison term.
At sentencing, the People moved to dismiss all remaining counts, including the two counts as to which the jury had hung and the three consolidated, additional felony counts and the court granted that motion. The court said to defendant, “Good luck to you, Mr. Castillo. We enjoyed you during the trial. We had a great relationship. I’m sorry you feel the way you do.”
This appeal followed.
DISCUSSION
I. Issues on Appeal
Defendant contends that the trial court erred by failing to order a competency hearing during the trial, when, according to defendant, his actions showed that he had again become incompetent to stand trial. Secondly, defendant contends that it was error for the court to have convicted him of both battery and the lesser-included offense of assault in counts 9 and 10, respectively. Finally, he claims that even if his second contention fails, it was nevertheless error for the court to have punished him twice for a single act under section 654 with respect to counts 9 and 10, a point respondent concedes, such that punishment on one of these counts must be stayed.
Defendant does not challenge the court’s determination that he was entitled to represent himself at trial and we accordingly do not address this issue. But the United States Supreme Court has just held that the Federal Constitution does not forbid states from compelling representation by counsel for those competent enough to stand trial yet who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. (Indiana v. Edwards (2008) ___ U.S. ___ (2008 U.S. Lexis 5031, *17-18, *23-24.) This allows states to set differing standards to assess competency to stand trial and the ability to represent oneself.
II. The Trial Court Did Not Err in Failing to Declare A Doubt as to Defendant’s Competency During Trial
Consistently with the due process clause of the Fourteenth Amendment and state law, the state may not try or convict a mentally incompetent person. (Godinez v. Moran (1993) 509 U.S. 389, 396; Drope v. Missouri (1975) 420 U.S. 162, 171-172; Pate v. Robinson (1966) 383 U.S. 375, 378; People v. Ramos (2004) 34 Cal.4th 494, 507; § 1367 et seq.) Under the state standard for competency, which essentially mirrors the federal standard, a defendant is mentally incompetent to stand trial if, “as a result of mental disorder or developmental disability, [he or she] is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a); see Dusky v. United States (1960) 362 U.S. 402 [legal competence standard is “ ‘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’ ”].)
“A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence.” (People v. Ramos, supra, 34 Cal.4th at p. 507.) But under section 1368, the court is required to initiate proceedings to determine competence 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.” (§ 1368, subds. (a) & (b); People v. Rodrigues (1994) 8 Cal.4th 1060, 1110.) In particular, the trial court is required to conduct a section 1368 hearing to determine a defendant’s competency “whenever substantial evidence of incompetence has been introduced. [Citations.] Substantial evidence is evidence that raises a reasonable doubt about the defendant’s competence to stand trial. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 951-952.) The substantiality of the evidence is determined when the competency issue arises at any point in the proceedings. (People v. Ramos, supra, 34 Cal.4th at p. 507.) And its source or sources may come from defendant’s own behavior or the results of a psychiatric examination, for example. (Id. at pp. 507-508.)
By contrast, evidence that “merely raises a suspicion that the defendant lacks present sanity or competence but does not disclose a present inability because of mental illness to participate rationally in the trial is not deemed ‘substantial’ evidence requiring a competence hearing.” (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.) “If a defendant presents merely a ‘litany of facts, none of which actually related to his competence [during the relevant proceeding] 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.]” (People v. Ramos, supra, 34 Cal.4th at p. 508.)
“There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. (Drope v. Missouri, supra, 420 U.S. at p. 180; Cooper v. Oklahoma (1996) 517 U.S. 348, 365 [“the ‘inexactness and uncertainty’ that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering”].) But “more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his [or her] defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense [citation].” (People v. Laudermilk (1967) 67 Cal.2d 272, 285; accord, People v. Davis (1995) 10 Cal.4th 463, 527; People v. Ramos, supra, 34 Cal.4th at p. 508 [defendant must show more than a preexisting psychiatric condition].) And the burden remains on a defendant to establish that he or she is not competent to stand trial. (§ 1369, subd. (f); People v. Marshall (1997) 15 Cal.4th 1, 31; People v. Stanley (1995) 10 Cal.4th 764, 816.)
Under section 1367 et seq., “[a] trial court is not under a duty to order a hearing on a defendant’s mental incompetence to stand trial, in the absence of a request, unless it has been presented with ‘substantial evidence of mental incompetence,’ i.e., ‘evidence that raises a reasonable doubt on the issue.’ ” (People v. Alvarez (1996) 14 Cal.4th 155, 211.) Moreover, “[w]hen, as here, a competency hearing has already been held and the defendant was found to be competent to stand trial, a trial court is not required to conduct a second competency hearing unless ‘ “it is presented with a substantial change of circumstances or with new evidence” ’ that gives rise to a ‘serious doubt’ about the validity of the competency finding. [Citation.]” (People v. Marshall, supra, 15 Cal.4th at p. 33; People v. Lawley (2002) 27 Cal.4th 102, 136.) The trial court may appropriately take into account its own observations in determining whether the defendant’s mental state has significantly changed during the course of trial. (Ibid.)
“[A] reviewing court generally gives great deference to a trial court’s decision whether to hold a competency hearing. . . . ‘ “An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.” ’ [Citations.]” (People v. Marshall, supra, 15 Cal.4th at p. 33.) But we exercise independent review on the issue whether, as a matter of law, the evidence before the court below “raised a substantial doubt as to defendant’s mental competence,” i.e, an inability to understand the proceedings against him, such that he was entitled to, and the court was bound to hold, a section 1368 hearing during the course of the proceedings. (People v. Rodrigues, supra, 8 Cal.4th at p. 1112; Drope v. Missouri, supra, 420 U.S. at pp. 174-175.) We conclude here that there was not.
Defendant contends that he showed at trial substantial evidence of incompetence in that he could not understand the nature of the proceedings or conduct his own defense in a rational manner. He cites that he displayed difficulty understanding the concept that testimony constitutes evidence, that he could not understand the procedural issues associated with his case, and that he showed signs of deterioration as the trial progressed until he abruptly revoked his waiver of counsel at the end. Defendant posits that the court even questioned his competency but failed to hold a hearing to make a competency determination. He further speculates, without support in the record, that his progression into incompetence was due to his failure to have taken his medication.
Our review of the record compels us to reject these contentions. In our view, there was no substantial change of circumstances or new evidence that casted a serious doubt on the validity of the court’s prior finding that defendant had been restored to competency. (People v. Lawley , supra, 27 Cal.4th at p. 136.)
First of all, defendant’s difficulty at trial in grasping certain aspects of the legal procedures applicable to his case did not speak to mental incompetence. Rather, this difficulty was indicative of no more than a layperson’s limitations and understandable confusion in representing himself in a legal proceeding—something defendant had a right to do and was adamant about doing. (People v. Blair (2005) 36 Cal.4th 686, 718-719 [self-represented defendant’s technical legal knowledge and insistence on self-representation irrelevant to competency to stand trial].)
Secondly, contrary to his contentions, defendant displayed throughout the trial an ability to understand the proceedings and to work within the structural parameters of a trial. He made pretrial motions; his legal research led the court to observe that his Faretta waiver form was better than what the court had; he gave an opening statement; cross-examined witnesses in a coherent fashion; made objections to testimony and evidence, some of which were valid and sustained; had rational input on jury instructions; understood the issue and took a position about the jury being instructed on lesser-included offenses; and gave a closing statement. He had rational interplay with the court throughout the proceedings and pointed out scheduling issues with respect to his other pending cases and two errors that the court made while instructing the jury. His demeanor and conduct were generally calm and responsive to the situation. In the end, he defended two of the counts such that the jury deadlocked on them.
It is true that some of defendant’s behavior after trial but before sentencing, albeit before different judges and some in different proceedings, was disruptive and that some of his trial strategy reflected poor judgment. But poor judgment does not equate to legal incompetence. And even defendant’s advisory counsel felt that they had had a good relationship during the trial and that he had listened to her, though he did not always take her suggestions. When counsel’s status changed during jury deliberations, she still did not raise a doubt as to defendant’s competency, and did not do so until well after the trial was over and defendant was facing another trial. Moreover, she did not raise this issue in the motion for new trial. (People v. Hoxie (1967) 252 Cal.App.2d 901, 917 [counsel at no time raised any question as to defendant’s competency].)
Even when counsel did raise the issue of defendant’s competency with respect to the second trial he was facing, which was before sentencing in this case, defendant was determined after examination to be competent, notwithstanding his erratic and disruptive behavior before two different judges in the interim. This behavior, as agitated and inappropriate as it was, did not display a lack of understanding of the proceedings against defendant. One might say instead that it displayed a frustration with the proceedings and the manner in which they would be conducted that reflected a true understanding of—though an inability to accept—the consequences that defendant was facing. But as noted, something more than bizarre behavior or statements or a history of mental illness are needed to raise a doubt about a defendant’s competency, particularly when defendant has already been determined to have been restored to competency and the claim is that another hearing under section 1368, subdivision (a), should have been initiated. (People v. Lawley, supra, 27 Cal.4th at pp. 136-139 [even extremely bizarre behavior during trial by self-represented defendant did not give rise to court’s duty to suspend criminal proceedings and initiate competency proceedings for a second time]; People v. Blair, supra, 36 Cal.4th at pp. 714-720; People v. Young (2005) 34 Cal.4th 1149, 1218 [more is required to show incompetency than psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal]; People v. Ramos, supra, 34 Cal.4th at pp. 508-511 [defendant’s death wish, history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimony that he was abused a as child and suffered from a paranoid personality disorder did not constitute substantial evidence of incompetence requiring court to conduct a competency hearing].) Defendant points to no more than that here.
We note that there is nothing in the record to suggest that Judge Del Pozzo, the trial judge who also sentenced defendant, was even aware of defendant’s behavior before Judges Chatman and Northridge that occurred before sentencing in this case. This behavior therefore has no bearing on whether Judge Del Pozzo was required to suspend proceedings and initiate competency proceedings prior to sentencing due to substantial evidence of defendant’s incompetence having been presented to him. (People v. Blair, supra, 36 Cal.4th at pp. 715-716.)
And we disagree with defendant’s characterization of the court’s inquiries as to his continued desire to represent himself during the trial. These inquiries were just that—they were not expressions of the court’s concern or doubt as to defendant’s legal competence. This is evidenced by the fact that the court also said that, in its view, defendant seemed “perfectly fine” and was “capable of defending himself” and at sentencing, told defendant, “We enjoyed you during the trial. We had a great relationship.” These observations and statements confirm that during trial, the court did not have a doubt about defendant’s competence, although it recognized that defendant would have been better served by having a lawyer represent him. Even defendant concedes that he “performed relatively well during the trial,” despite also pointing to moments during the proceedings that were not his best.
Defendant also seizes upon observations contained in competency reports before trial about his past failures to take his prescribed medication. He speculates that his asserted mental deterioration at trial concluding in April 2006 was caused by a similar failure. But he cites nothing in the record to support that this was indeed the case. And the only evidence in the record on the subject—the June 2006 report of Dr. Koller concluding that defendant was then competent—suggests the contrary. It says that defendant was taking and “had been stabilized on” anti-psychotic medication. Moreover, the record illustrates that defendant was not exhibiting or suffering from the extreme behavior and psychiatric symptoms that had led two past competency examiners to conclude that he was then incompetent to stand trial—hallucinations or delusions, extreme depression and suicidal tendencies, violent impulses, and grave disability.
In sum, here, the court was not presented with objective, substantial evidence of defendant’s mental incompetence or a change of circumstances relating to his competence such that a sua sponte duty arose for it to initiate proceedings under section 1368, subdivision (a). Because of this, the court did not breach a “ ‘continuing duty to monitor for substantial evidence’ of [a] defendant’s incompetence” or fail to initiate mandatory competency proceedings as defendant contends. (People v. Mixon (1990) 225 Cal.App.3d 1471, 1485; People v. Frye, supra, 18 Cal.4th at p. 953 [having no doubt about defendant’s competence, court was not required by section 1368 to suspend proceedings and hold a hearing]; People v. Ramos, supra, 34 Cal.4th at pp. 510-511 [paranoid personality disorder did not render defendant incompetent even though he “lived by his own set of rules and acted without regard for the lives of others” and court did not therefore fail to hold a competency hearing as substantial evidence of incompetence did not appear]; People v. Young, supra, 34 Cal.4th at pp. 1216-1217 [substantial evidence of defendant’s incompetence triggers requirement of court to hold a hearing even when there is other evidence of competence].) We therefore conclude that the trial court did not err by not conducting additional competency proceedings during trial or at any later time before judgment was entered against defendant.
III. The Court Did Not Err in Convicting Defendant of Both Counts 9 and 10
Defendant contends that the trial court erred by convicting him of both count 9, battery upon a noninmate in violation of section 4131.5, and count 10, assault on a custodial officer in violation of sections 240-241.1, which were charged in connection with defendant’s attack upon Shonda Santos in which he stabbed her arm with a pencil as she pushed his lunch tray through the slot in his jail cell. The basis of his claim is that because assault is a lesser-included offense of battery, he cannot be convicted of both crimes that resulted from the same course of conduct.
Although in California a defendant may generally be convicted of multiple crimes arising out of the same act or course of conduct, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. (People v. Medina (2007) 41 Cal.4th 685, 701; People v. Montoya (2004) 33 Cal.4th 1031, 1034; § 954.) “In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether ‘ “all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” ’ [Citation.] In other words, ‘if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (People v. Montoya, supra, 33 Cal.4th at p. 1034; People v. Reed (2006) 38 Cal.4th 1224, 1226-1228; People v. Sloan (2007) 42 Cal.4th 110, 118.) “An offense is necessarily included within another if ‘the statutory elements of the greater offense . . . include all of the elements of the lesser offense . . . .’ [Citations.]” (People v. Lewis (2008) 43 Cal.4th 415, 518.)
Section 4131.5 defines battery against a noninmate as having taken place when a “person confined in . . . a . . . county jail . . . commits a battery upon the person of any individual who is not himself a person confined or sentenced therein . . . .” Section 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.” In contrast, section 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Section 241.1 further defines the charged offense of assault on a custodial officer as an assault committed against a custodial officer when “the person committing the offense knows or reasonably should know that such victim is such a custodial officer engaged in the performance of his duties . . . .”
We conclude based on the elements test that the crime of assault on a custodial officer is not a lesser-included offense of the crime of battery on a noninmate. This is because one may commit battery on a noninmate without also committing assault on a custodial officer. And this latter crime also includes an element—knowledge that the victim is a custodial officer engaged in the performance of his or her duties—that is not an element of battery on a noninmate. Therefore, the judicially created exception to the general rule that one may be convicted of multiple crimes arising from the same course of conduct does not apply. We accordingly reject defendant’s contention that it was error for him to have been convicted of both counts 9 and 10, which were not in any event charged in the alternative as he claims.
IV. Punishment on Count 9 Should be Stayed Under Section 654
Defendant contends and respondent concedes that if defendant were properly convicted of both counts 9 and 10 as we have so concluded, then punishment should have been stayed on one of the counts under section 654. We agree.
Section 654 prohibits multiple punishment for “ ‘two offenses arising from the same act.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “ ‘Insofar as only a single act is charged as the basis for the conviction . . . , the defendant can be punished only once.’ ” (Ibid.) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (Ibid.) Defendant’s attack on Officer Santos as charged in counts 9 and 10 constituted one course of conduct, the objective of which was to come into contact with her and cause her harm by stabbing her with a pencil.
“When section 954 permits multiple convictions, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]” (People v. Reed, supra, 38 Cal.4th at p. 1227.) Accordingly, the court here should have stayed execution of defendant’s sentence on either count 9 or 10, the six-month concurrent jail term on each of which was the same.
DISPOSITION
The sentence on count 9, battery upon a noninmate in violation of section 4131.5, is ordered stayed. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.