P. v. Mills

Filed 5/28/08 P. v. Mills CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp and Cynthia Rayvis, Judges. Affirmed in part; reversed in part, with directions.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

A jury convicted appellant Kenneth Wayne Mills of aggravated mayhem and assault causing great bodily injury for putting out his roommates eye. On appeal, Mills argues the evidence is insufficient to support his prior prison term enhancement because he did not admit all of the enhancements elements. He also contends the trial court erred by failing to appoint counsel to represent him during competency proceedings. We conclude substantial evidence supports the prior prison term enhancement. Mills admitted some of the elements, and evidence introduced at trial established the rest. However, the trial court violated Millss statutory and constitutional rights to counsel during competency proceedings. Because it also summarily adjudicated Millss competency without affording him a trial on the issue or obtaining a trial waiver, failed to appoint counsel for Mills when he raised the issue after trial, and improperly put the burden of proof of prejudice on Mills, we remand for a retrospective competency hearing.

FACTS AND PROCEDURAL HISTORY

Mills shared a dormitory room at Metropolitan State Hospital with other patients, including Robert Thayer and Gary Descher. On the afternoon of March 3, 2005, Mills was talking to another man in a loud voice. Thayer asked Mills to turn it down because others were trying to rest. Mills reacted with fury. He called Thayer names and threatened him. Thayer left the room and reported the threat to a hospital staff member. After Thayer returned and sat on his bed, Mills punched him in the left eye with one finger extended. The blow put tremendous pressure on Thayers eyeball and ruptured it. Although surgeons tried to repair the wound, they ultimately removed Thayers left eye. Descher witnessed the attack and testified at trial.

Hospital staff members asked Mills what had happened. He denied doing anything, but became extremely agitated and appeared to be very angry. Mills did not seem to be injured; he had no blood on him. No weapons were found in the dormitory room.

The day after the attack, Mills told a therapist at the hospital that he had poked Thayer in the eye with his fingers -- a technique he said he liked to use. Mills also told a hospital police officer that he struck Thayer because Thayer was making racial slurs and had attacked Mills with a sharpened toothbrush. Mills told the officer he liked to drive his fingers into an eye socket and pull out the eye, but it didnt work this time. The next day, Mills laughed and joked about Thayers injury and told a psychiatric technician that Thayer shouldnt have been messing with me. Six days after the attack, Mills made a threat against another of his roommates while speaking with a nurse. He threatened that something will happen similar to Mr. Thayer. Mills said he would hurt [the roommate] big time like what happened the last time, and the man would end up in the hospital.

Mills represented himself throughout the criminal proceedings. At trial he testified that, on the day of the incident, Thayer was foaming at the mouth and made a racist remark. Mills did not react. Suddenly, Thayer sprang at him with a toothbrush that had been sawed down on the sides. (Mills was 47 and Thayer was 68 at the time.) Mills did not try to move out of the way and did not strike Thayer. Thayer hit his eye on a tall locker and fell to the floor. Mills suffered an injury to his chest and lost two teeth. He denied laughing about the incident and making any admissions to hospital staff or police.

Millss first trial ended in a mistrial after the jury deadlocked. On retrial, a jury convicted him of aggravated mayhem and assault with a deadly weapon or by means of force likely to produce great bodily injury. The jury also found that Mills had personally inflicted great bodily injury in the commission of the assault. Mills waived jury trial on all prior conviction allegations under the Three Strikes law and Penal Code section 667, subdivision (a)(1) ( 667.5(a)(1)), and prior prison term allegations under section 667.5, subdivision (b) ( 667.5(b)). (All statutory references are to the Penal Code unless otherwise specified.) He admitted all of the allegations, though he now challenges the validity of his admission of the section 667.5(b) allegation. The court sentenced Mills to life in prison, plus five years for a section 667 (a)(1) enhancement and an additional one year for a section 667.5 (b) enhancement.

DISCUSSION

1. Substantial evidence supports the prior prison term enhancement.

The amended information filed on April 10, 2006, and further amended by interlineation included the following allegation under section 667.5(b): It is further alleged as to count(s) 1 and 2 pursuant to Penal Code section 667.5(b) that the defendant(s) KENNETH WAYNE MILLS, has suffered the following prior conviction(s): [] [Solano County Superior Court case No. VCR147775, conviction date July 10, 2000, for a violation of section 422; San Joaquin County Superior Court case No. SF090359A, conviction date June 27, 2005, for a violation of section 4501.1] [] and that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.

Mills was arraigned on the amended information April 10, 2006, before his first trial. He pleaded not guilty and denied all special allegations.

On June 6, 2006, after the jury convicted Mills of the charges, the court addressed the Three Strikes law and enhancement allegations: Mr. Mills, there are several other allegations under different code sections, specifically that you were convicted of a violation of criminal threats or terrorist threats in 2000 and battery by gassing in 2005. These are alleged under several statutes. One is under the Three Strikes statute. One is under Penal Code section 667(a)(1) which states that you did not - - that you suffered the conviction of a serious felony, specifically the terrorist threats. And that under 667.5(b) you suffered the convictions of the terrorist threats and the battery by gassing and that you didnt remain free of prison custody during a period of five years before this offense. The court then told Mills he could have the jury try these allegations or admit them. (The court did not tell Mills that he could have a court trial on the priors.) Mills said he did not want the jury to try the allegations and he would admit them. The court explained the rights Mills would relinquish. Mills said he understood these rights and gave all of them up.

After addressing the Three Strikes law and section 667(a)(1) allegations, the court turned to the section 667.5(b) allegation:

The Court:  . . . And do you further admit that as to counts 1 and 2 pursuant to Penal Code section 667.5 (b) that you suffered the following prior convictions and you did not remain free of custody, prison custody, for and did commit an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of that term, Penal Code section 422, in case VCR147775 in Solano County on June 10, 2000? Do you admit that?

Mills: Didnt you just go through that one?

The Court: But this is a different code section.

Mills: I dont understand code section.

The Court: This code section says that you did not remain free of prison for five years.

Mills: Okay.

The Court: Do you admit that?

Mills: I admit that.

The Court: And do you also admit under that same code section that you were convicted of a violation of Penal Code section 4501.1, battery by gassing, in case SF090359A in San Joaquin County on June 27, 2005? Do you admit that?

Mills: Yeah. I admit that. I admit that.

Although the section 667.5(b) allegation listed two prior prison terms, the court imposed only one enhancement under that statute. The parties agree on appeal that the enhancement imposed was for the two-year term for battery by gassing in San Joaquin County case No. SF090359A.^[1]

Mills contends that the evidence is insufficient to support the section 667.5(b) enhancement because he did not admit the following elements: that he was imprisoned as a result of the San Joaquin County conviction, that he completed the term of imprisonment, and that he failed to remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.

Due process requires the prosecution to prove every element of a sentencing enhancement allegation beyond a reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566.) This court must review the record in the light most favorable to the judgment to determine whether substantial evidence supports the fact finders conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution had sustained its burden of proving the truth of the enhancement allegation beyond a reasonable doubt. (Id. at p. 567.)

Imposition of a section 667.5(b) enhancement requires proof that the defendant (1) had a prior felony conviction, (2) was imprisoned as a result, (3) completed the term of imprisonment, and (4) did not remain free of both prison custody and the commission of a new offense resulting in a felony conviction for a period of five years. (People v. Tenner, supra, 6 Cal.4th at p. 563.)

The first step in analyzing Millss insufficiency of evidence claim is to determine what Mills admitted. Although the trial court did not state or describe any elements of the section 667.5(b) allegation as to the San Joaquin County conviction, it in effect incorporated by reference the description of the elements it had given on the Solano County conviction by asking, And do you also admit under that same code section . . . .

Mills made the same admission as to the Solano County and San Joaquin County convictions. We thus look to the sufficiency of Millss admission of his Solano County conviction to determine the legal sufficiency of his admission of the San Joaquin prior conviction.

The courts description of the section 667.5(b) allegation addressed only the first and fourth elements listed above: that Mills had a prior felony conviction and that he did not remain free of both prison custody and a new felony conviction for five years. The court did not mention the elements of Mills going to prison for the prior conviction or completing that prison term. The court referred to the conclusion of that term, presumably meaning the completion of the prison term served for the prior conviction. While the phrase conclusion of that term may have been ambiguous without an express reference to service of such a term, the amended information both used that phrase and also expressly alleged that Mills served a prison term for the prior conviction.

We may presume that the trial court performed its official duty by giving Mills a copy of the amended information and reading it to him when the court arraigned him on it, as section 988 requires. (Evid. Code, 664.) Moreover, the record indicates Mills had a copy of the amended information in front of him earlier in the day on June 6, 2006 the day he made his admissions and he examined at least some of the enhancement allegations about prior convictions that day. After the court sent the jury to lunch, it discussed jury instructions with Mills and the prosecutor. During this discussion, Mills raised an issue about the enhancement allegations: As far as the information that I am being charged with right now, [it] states that I have been convicted of these crimes in San Bernardino County and Los Angeles County. And I have never been convicted in Los Angeles and San Bernardino County. The court did not address Millss concern at that time and he tried to raise it again after lunch, telling the court that he wanted to show the prosecutor the information of this case, the information of this case right now. Information on page 3 and the Information on page 2 where it says my conviction, my prior conviction.^[2] So when Mills made his admissions, he apparently knew the elements of the section 667.5(b) enhancement allegation; the amended information he physically had in front of him sufficiently pleaded them.

In addition, the prosecution introduced the Abstract of Judgment-Prison Commitment form from the San Joaquin County case (Peoples exh. 17) at trial for impeachment.^[3] On appeal, Mills effectively admits the authenticity of this document: he himself relies on it in his insufficiency of evidence argument. The abstract shows that Mills was sentenced to two years in prison for the gassing conviction in San Joaquin County, but he had two years worth of actual custody credits. Mills therefore was not committed to prison, but released directly to parole based on his time served in county custody.

Mills argues that the time he served in jail did not constitute a prison term within the scope of section 667.5(b). However, section 1170, subdivision (a)(3) expressly provides that, where the sentence is deemed served because preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds the sentence, the sentence shall be deemed a separate prior prison term under Section 667.5 . . . . (See also People v.Childress (1987) 189 Cal.App.3d 1220, 1222-1223.)

Mills relies on People v. Epperson (1985) 168 Cal.App.3d 856 (Epperson), and People v. Lopez (1985) 163 Cal.App.3d 946 (Lopez). Those cases are distinguishable. In Epperson, the prosecution apparently introduced no evidence of a prior conviction and sentence. The imposition of the section 667.5(b) enhancement rested entirely on the defendants admission. In Epperson, the court stated all the elements of a section 667.5(b) enhancement, but asked the defendant only if he admitted that he had suffered the prior conviction. (Epperson, supra, 168 Cal.App.3d at pp. 863-864.) The appellate court concluded it could not view Eppersons admissions of the convictions as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b). In Epperson the defendant in fact had satisfied the five-year washout requirement. (Id. at p. 865.) In Lopez, the defendant admitted having suffered prior burglary convictions, but he never was asked to admit that the burglaries were residential or that they were serious felonies within the meaning of sections 667(a)(1) and 1192.7, subdivision (c). (Lopez, supra, 163 Cal.App.3d at p. 950.) The appellate opinion repeatedly states that no evidence was introduced to establish either that the prior burglaries were residential or that the defendant had served a separate prison term for either of his prior burglary convictions. (Id. at pp. 950-951.) Here, however, with the amended information in front of him, Mills admitted his prison priors. Moreover, there had been discussion about the prosecutions impeachment of Mills with his prior conviction, and Mills had seen Exhibit 17, which the court had admitted into evidence at trial. We conclude the record adequately supports the prior prison term enhancements to Mills sentence.

2. The trial court erred in failing to appoint counsel to represent Mills in the competency proceedings.

a. The competency proceedings.

Mills represented himself at his preliminary hearing. He also demanded and was granted self-representation status following his arraignment. On November 2, 2005 -- the date set for trial -- the prosecutor asked the court to declare a doubt about Millss competence. Judge Knupp did so; he appointed two psychiatrists to examine Mills and submit reports. Mills -- who continued to assert that he was competent -- said he wanted a jury trial on his competence. Judge Knupp did not appoint counsel for Mills, and he continued to represent himself during the ensuing proceedings.

Dr. Marshall S. Cherkas submitted his report on January 19, 2006. He concluded Mills was competent to stand trial. He noted some small suggestion of bipolar disease due to [Millss] hypomanic style . . . . Cherkas based his evaluation entirely on a face-to-face interview, as he had no records to review. He found Mills to be fully aware of the charges against him, able to provide a defensive response to these charges, and aware of the functions of judge, jury, prosecutor, and defense counsel. Because Mills was self-represented, Cherkas could not assess his ability to cooperate with counsel. He suggested that, if Mills did not behave appropriately in court, he should be given anti-psychotic medication.

Dr. Kaushal K. Sharma submitted his report on February 8, 2006. Sharma noted, Usually when a defendant is acting in pro per and a competency issue is raised, an attorney is appointed to provide documents to the examiner and assist the defendant during the 1368 proceedings. . . .  [T]he defendant is not represented by counsel. The defendant himself did not have any police reports or other documents to show me but did provide me with verbal information. Sharma stated that when he interviewed Mills face-to-face, he was not demonstrating any active symptom of a major mental disorder and should be considered competent to stand trial. Sharma noted that Mills was quite proficient in providing information, had an exceptional memory, and was able to provide information in a very precise fashion. Sharma stated that the only possible symptom [observed] during the interview was the defendants tendency for being loquacious in providing information. However, no hallucinations, delusions, or bizarre behavior was noted. He was aware of his legal predicament, the circumstances of his arrest, and was able to meaningfully interact with this examiner. He should be considered competent to stand trial.

On February 8, 2006, Mills appeared before Judge Knupp for the competency hearing. However, Mills filed an affidavit of prejudice against Judge Knupp. Judge Knupp transferred the case to Judge Rayvis. Millss case file some five inches thick arrived on Judge Rayviss bench. Mills told the court he was competent and that the two psychiatrists had said he was competent. Mills apparently was referring to what the psychiatrists had said to him in person; he had not been given copies of either report. The court did not advise Mills of his right to a court or jury trial on the issue of competency. Mills neither waived his right to a trial nor agreed to submit the matter on the written psychiatric reports. The court summarily found Mills competent to stand trial, saying He is presently able to understand the nature of the proceedings and to assist rationally in the defense.

Millss trial on the charges began in April 2006 before Judge Patrick T. Meyers. The jury was unable to reach a verdict and the court declared a mistrial. Mills was retried in June 2006, with Judge Rayvis presiding.

On the date set for sentencing, Mills raised the issue of the absence of counsel during his competency proceedings and the failure to hold a competency hearing. Judge Rayvis observed that counsel should have been appointed when Judge Knupp declared a doubt as to Millss competency. She believed she had advised Mills of his right to a jury trial on the issue of competency, and she stated that Mills had waived his right to a hearing and submitted on the reports. The court continued the sentencing hearing to consider the issue. At the continued hearing, the court found that Mills had not shown that the error was prejudicial: The court finds that although the right [to counsel] was not adhered to, the defendant has failed to demonstrate prejudice. Specifically, had he had counsel and assuming counsel spoke to the doctors and provided police reports, the defendant has failed to demonstrate that a different conclusion would have been reached. Assuming the defendant had been found incompetent to stand trial, at some point he would have been found competent and brought to trial which happened in this case sooner rather than later assuming at some point he had been found not competent. []  . . .  []  There was nothing defective about the trial. There was no showing that the trial occurred while the defendant was not competent. In fact, Mr. Mills effectively represented himself through the entire trial in this courtroom and clearly understood what was going on.

b. Mills is entitled to a retrospective competency hearing.

In a supplemental appeal brieffiled with leave of court, Mills contends that the judgment should be reversed because he was not represented during the competency proceedings.

Section 1368, subdivision (a) requires that counsel be appointed for a self-represented defendant when the trial court doubts the defendants mental competence.^[4] Moreover, a defendant has a right under the Sixth Amendment to counsel in competency proceedings. (People v. Pokovich (2006) 39 Cal.4th 1240, 1252; Estelle v. Smith (1981) 451 U.S. 454, 470-471.) In addition, the failure to observe procedures adequate to protect a defendants right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. (Drope v. Missouri (1975) 420 U.S. 162, 172.) Accordingly, whenever a trial court makes a formal order suspending proceedings and appointing a doctor pursuant to Penal Code section 1368, the court must appoint counsel to represent the defendant. If the court has a reasonable doubt as to the defendants competency to stand trial, that doubt should extend to the defendants competency to waive counsel and represent himself. (People v. Robinson (2007) 151 Cal.App.4th 606, 616.)

As respondent essentially concedes, the trial court erred by failing to appoint counsel to represent Mills in the competency proceedings. The court violated Millss Sixth Amendment right as well as his statutory right. The only issues for resolution on appeal are whether the error may be deemed harmless and, if not, what the appropriate remedy is. Mills argues that the error is reversible per se; respondent argues the record demonstrates it was harmless beyond a reasonable doubt. Alternatively, respondent argues that remand for an evidentiary hearing or retrospective competency hearing is appropriate.

A Sixth Amendment violation is reversible per se only if it pervades the entire proceeding. (Satterwhite v. Texas (1988) 486 U.S. 249, 256; People v. Robinson, supra, 151 Cal.App.4th at p. 616.) Automatic reversal is appropriate when the effect of counsels nonparticipation realistically cannot be measured because, due to the absence of counsel, the record fails to reflect what different direction the proceedings might have taken and what different results might have [been] obtained. (In re William F. (1974) 11 Cal.3d 249, 256, disapproved on another point in People v. Bonin (1988) 46 Cal.3d 659, 695, fn. 4.)

Reversal is not always required when the trial court has failed to conduct a competency hearing or to appoint counsel for the defendant during competency proceedings. Instead, appellate courts sometimes have remanded for a retrospective competency hearing (People v. Robinson, supra, 151 Cal.App.4th at pp. 617-618), for an evidentiary hearing to determine whether the competency hearing could have come out differently if appellant had been represented by counsel (U.S. v. Klat (D.C. Cir. 1998) 156 F.3d 1258, 1264), or for the trial court to determine whether the available evidence and witnesses are sufficient to permit it to reach a reasonable psychiatric judgment of defendants competence to stand trial (People v. Ary (2004) 118 Cal.App.4th 1016, 1029).

Here, the error in not appointing counsel did not pervade the entire criminal proceeding. Two psychiatrists found Mills competent, and the record reveals no evidence contradicting their conclusions. Mills represented himself well enough in his first trial to create a jury deadlock.^[5] The record in the second trial amply shows that Mills understood the nature of the proceedings and the charges. He expressed himself clearly and displayed sufficient organization and insight to cross-examine prosecution witnesses and to present a defense. Although Mills repeatedly tried to introduce irrelevant and inadmissible matters -- such as the prior mistrial, unrelated litigation, and his claimed violation of his speedy trial rights -- he conducted his defense in a rational manner on the whole.

These circumstances, in conjunction with the presumption of competence ( 1369, subd. (f)), suggest the error may even have been harmless. Nonetheless, we cannot conclude, beyond a reasonable doubt, that appointment of counsel during the competency proceeding would have made no difference in its outcome. Mills was a patient at Metropolitan State Hospital, a psychiatric facility, when he committed the crime. Several related errors compounded the courts initial error in not appointing counsel for Mills. These include the failure to give Mills copies of the doctors reports and the failure to advise Mills of his right to a jury or court trial on competence or to ask Mills if he waived that right. Indeed, it is questionable that Mills -- as a self-represented defendant whose competence had been questioned by the district attorney and Judge Knupp -- could knowingly and intelligently waive his right to a trial on the issue of competency. (Pate v. Robinson (1966) 383 U.S. 375, 384 [[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently waive his right to have the court determine his capacity to stand trial]; People v. Tracy (1970) 12 Cal.App.3d 94, 102 [When a doubt has arisen as to a defendants sanity, and that fact has been judicially declared, we think it equally contradictory, inconsistent and incongruous to permit him to discharge his attorney and represent himself at the hearing where the issue of his sanity is to be determined. The vice in the situation is compounded when he is then led into a stipulation or waiver which reduces the hearing to a mere formality and its result to a foregone conclusion].) In addition, the better practice would have been to appoint counsel for Mills in the posttrial proceedings when he raised the issue of the earlier failure to appoint counsel. The court also put the burden of proof of prejudice on Mills. Given the constitutional nature of the error, the burden rested on the People to prove the absence of prejudice beyond a reasonable doubt. (Chapmanv.California (1967) 386 U.S. 18, 24.)

In light of all of these circumstances, we cannot say with sufficient certainty that the error in failing to appoint counsel to represent Mills during the competency proceedings was harmless beyond a reasonable doubt. The remedy most consistent with the protection of Millss statutory and constitutional rights is remand for a retrospective competency hearing conducted in accordance with section 1369, following appointment of counsel to represent Mills.

The factors generally considered in determining whether a retrospective competency determination consistent with due process is feasible are the passage of time; the availability of contemporaneous medical evidence, including medical records and prior competency determinations; statements by the defendant in the trial record; and the availability of individuals and trial witnesses, both experts and nonexperts, who interacted with the defendant before and during trial. (People v. Robinson, supra, 151 Cal.App.4th at p. 617.) The courts summary competency adjudication took place on February 8, 2006. The first trial was held from April 10 to April 18, 2006. The second trial began on June 1, 2006, and ended on June 6, 2006, less than two years ago. The written reports of Drs. Sharma and Cherkas provide medical evidence of Millss state of mind at the time of the flawed competency determination. Because appellant represented himself, the reporters transcript of the second trial contains numerous statements by Mills. The transcript of the first trial likely contains at least as many, if not more, instances of Millss verbal interaction with the court and witnesses. Given that the trials were not that long ago, it is very likely that several of the lay witnesses (such as prosecutors and bailiffs), as well as one or both of the evaluating psychiatrists who interacted with Mills, would be available to testify at a retrospective competency hearing. Accordingly, it appears such a hearing will satisfy due process and serve as a reasonable remedy for the collection of errors that occurred below in relation to the competency proceedings.

Mills relies on People v. Jenan (2007) 148 Cal.App.4th 1144. That case is distinguishable. In Jenan, the court repeatedly declared a doubt as to each defendants competency, but did not commence competency proceedings under section 1368. The record therefore contained no psychiatric evaluations or any other basis on which a retrospective determination of competency or prejudice could be conducted.

Finally, we note that the record reveals Mills to have been a difficult, even obstreperous, litigant who repeatedly violated the courts orders and treated the court with disrespect. Having argued on appeal that he was entitled to counsel for the competency proceedings, and in light of section 1368s mandate that counsel be appointed, the court of course need not entertain any motion on remand under Faretta v. California (1975) 422 U.S. 806, for Mills to represent himself in the retrospective competency hearing.

DISPOSITION

The judgment is reversed. The case is remanded to the trial court with instructions to hold a retrospective competency hearing. Counsel shall be appointed to represent defendant Mills at the hearing. If Mills is found to have been competent to stand trial, the judgment shall be reinstated. If Mills is found to have been incompetent to stand trial, he shall receive a new trial. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.^*

We concur:

RUBIN, Acting P. J.

FLIER, J.

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^[1] Because the trial court based the section 667(a)(1) enhancement, it imposed on the Solano County conviction, that conviction could not serve as the basis for a section 667.5(b) enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.)

^[2] The original information alleged Millss criminal threats conviction occurred in San Bernardino for purposes of the Three Strikes law and section 667, subdivision (a) allegations and in Los Angeles for the section 667.5, subdivision (b) allegation. It did not allege the battery by gassing conviction at all. The amended information perpetuated this geographical error on the criminal threats prior but added the San Joaquin County battery by gassing conviction in the section 667.5, subdivision (b) allegation. Mills questioned the allegations of convictions in San Bernardino and Los Angeles Counties. The prosecutor then moved to amend the amended information by interlineation to replace San Bernardino and Los Angeles with Solano in the enhancement allegations. The court granted the motion, although the clerk stated that the amendment had previously been made.

^[3] Last year, respondent asked the superior court to transmit Peoples exhibit 17 to this court. The superior court apparently failed to do so, but the parties agreed at oral argument that this court could consider exhibit 17 as part of the record. On February 29, respondent submitted a copy of the exhibit together with a telecopy cover sheet from the superior court (Southeast District, Norwalk).

^[4] In pertinent part, section 1368 provides as follows:

(a) 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. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.

(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendants mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.

^[5] The appellate record does not contain a reporters transcript of the first trial.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.