Filed 4/27/18 P. v. Farrar CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERT ARTHUR FARRAR,

Defendant and Appellant.
D073120



(Super. Ct. No. INF064878)

APPEAL from a judgment of the Superior Court of Riverside County, B.J. Bjork, Judge. Reversed in part, affirmed in part, and remanded.

Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Albert Arthur Farrar of one count of willful infliction of injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)). The trial court made a true finding that Farrar had two serious felony priors (§ 667, subd. (a)) and two prior strikes (§§ 667, subds. (b)-(i), 1170.12). At sentencing, the trial court struck one of the prior strikes and sentenced Farrar to a prison term of 18 years.
Farrar contends (1) the trial court erred in not conducting a competency hearing prior to trial and should not have granted Farrar's motion to represent himself because it received information during a Marsden hearing on August 10, 2009, that a psychologist had evaluated Farrar and found him to be incompetent to stand trial; (2) the trial court erred in not providing a unanimity instruction requiring that the jury determine which of Farrar's acts constituted the assault with a deadly weapon; (3) the trial court's finding that Farrar's prior robbery conviction from Nevada in 1987 constituted a serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12) must be reversed because the elements of robbery in Nevada are broader than the elements of robbery in California; (4) the trial court erred in calculating Farrar's presentence conduct credits by erroneously imposing a limit applicable to defendants convicted of violent felonies (§ 2933.1); and (5) the court operations assessment fee imposed by the trial court (§ 1465.8, subd. (a)(1)) should have been in the amount of $30.00 per count rather than $40.00 per count.
We agree with the Attorney General's concessions that (1) trial court erred in finding that Farrar's 1987 robbery conviction in Nevada constituted a serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12) but that the matter should be remanded for further proceedings; (2) Farrar's presentence conduct credits were not properly calculated; and (3) the court operations assessment fee should have been in the amount of $30.00 per count. However, we find no merit to Farrar's remaining contentions. Accordingly, we reverse the true finding that Farrar's 1987 robbery conviction in Nevada qualifies as a serious felony and a prior strike and remand for further proceedings on that issue; and we direct the trial court to recalculate Farrar's presentence conduct credits and to impose a court operations assessment fee of $30.00 per count. In all other respects, we affirm judgment, and we remand for proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2009, Farrar's cohabiting fiancée Janet was visiting an acquaintance at an apartment building. Farrar arrived at the apartment building in his car and made a telephone call to the apartment where Janet was located. Janet came out of the apartment and spoke to Farrar, who was sitting in his car.
As Janet told police shortly after the incident, Farrar started yelling at her and demanded she get in the car. When she refused, Farrar grabbed her through the car's driver side window and pulled her upper body into the car. One of Farrar's hands was on Janet's head or neck, and his other hand was grabbing her purse. Farrar tugged on Janet's purse and accelerated his car forward while Janet was leaning into the car. The acceleration caused Janet to be dragged along with the car, with her feet off the ground and her upper body inside. Janet then let go of the purse and she fell down to the ground, bumping her head and incurring abrasions on her elbow and other parts of her body. While lying on the ground, Janet saw the car's backup reverse lights come on, and she stood up and ran back to the apartment. When Janet looked back at the car, it had backed up to the exact location where she had been lying on the ground.
An amended information charged Farrar with robbery (§ 211; count 1); willful infliction of injury on a cohabitant (§ 273.5, subd. (a); count 2); assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with the further allegation that Farrar personally inflicted great bodily injury under circumstances involving domestic violence (§§ 12022.7, subd. (e), 1192.7, subd. (c)(8); count 3); and vandalism (§ 594, subd. (b); count 4). The amended information also alleged that Farrar had two prior convictions, both of which constituted serious prior felonies (§ 667, subd. (a)) and prior strikes (§§ 667, subds. (b)-(i), 1170.12). Prior to trial, the trial court granted Farrar's motion to represent himself.
At trial, the jury heard testimony from Janet that contradicted some of her statement to the police shortly after the incident. According to Janet's testimony, she was leaning into the car to receive an affectionate embrace from Farrar when he became afraid of someone behind the car and suddenly accelerated, catching Janet's purse on the car and pulling her along with the car. Janet testified that she fell down to the ground when the handles of her purse broke. During cross-examination by the People, however, Janet acknowledged that she and Farrar struggled over her purse and that the car accelerated during the struggle. She also acknowledged that she saw the backup reverse lights on the car and feared the car would run over her.
At trial, Farrar testified that he was reaching for Janet to kiss her from inside the car when he noticed movement behind him and panicked and accelerated the car, with Janet's purse strap caught on his arm. According to Farrar, he did not intend to inflict any injury on Janet.
On November 6, 2009, a jury found Farrar guilty of willful infliction of injury on a cohabitant (§ 273.5, subd. (a); count 2) and assault with a deadly weapon (§ 245, subd. (a)(1); count 3), but found him not guilty of robbery (§ 211; count 1), and made a not true finding on the allegation in count 3 that Farrar personally inflicted great bodily injury under circumstances involving domestic violence (§§ 12022.7, subd. (e), 1192.7, subd. (c)(8)).
In a separate proceeding shortly after trial, the trial court found that Farrar had two prior convictions that both qualified as serious felonies (§ 667, subd. (a)) and prior strikes (§ 667, subd. (d)). The two prior convictions were a 1981 conviction for robbery in California, and a 1987 conviction for robbery in Nevada.
Because of intervening proceedings to determine Farrar's mental competency and the litigation of other posttrial motions, although Farrar's jury trial took place in 2009, he was not sentenced until 2016. Among other things, between 2010 and 2016, three jury trials were held to determine Farrar's mental competency to stand trial, with the first two trials resulting in hung juries, and the third trial resulting in a finding that Farrar was currently mentally competent to stand trial. In the years between the verdict and sentencing, the trial court also considered and denied Farrar's motions for a new trial and a motion in arrest of judgment (§§ 1012, 1185) premised on the contention that the trial court should have held a mental competency hearing before trial.
At sentencing, the trial court struck the strike associated with the 1981 robbery conviction, and it sentenced Farrar to a prison term of 18 years. The sentence was composed of an eight-year term on count 3, a concurrent six-year term on count 2, and consecutive five-year terms for each of the prior serious felony convictions (§ 667, subd. (a)). As relevant here, the trial court also imposed a court operations assessment fee of $40.00 pursuant to section 1465.8, and it awarded 2,879 days of presentence credit, including 375 days of conduct credit.
II
DISCUSSION
A. Farrar's Contention That the Trial Court Erred in Not Conducting a Mental Competency Hearing Based on Information Presented at an August 10, 2009 Marsden Hearing

We first discuss Farrar's contention that the trial court erred in not conducting a hearing to determine whether Farrar was mentally competent to stand trial after certain information was provided to the trial court during a Marsden hearing on August 10, 2009.
1. Procedural Background
We begin our discussion by setting forth the relevant procedural background.
On July 9, 2009, at Farrar's arraignment on an amended information before the Honorable B.J. Bjork in Department 3P, his appointed defense counsel, Demi Tolbert, informed the trial court that Farrar was being uncommunicative and was "having significant issues." She accordingly asked the trial court to order a psychological evaluation of Farrar pursuant to Evidence Code section 1017. The trial court specifically confirmed with Tolbert whether she meant to obtain a psychological evaluation based on Evidence Code section 1017 or whether she meant to proceed under Penal Code section 1368.
Under Evidence Code section 1017, the trial court may order a privileged psychological evaluation of a defendant at the request of defense counsel "in order to provide the lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition." (Evid. Code, § 1017, subd. (a).) As an evaluation under Evidence Code section 1017 is privileged, it is provided confidentially to defense counsel, not to the trial court. In contrast, section 1368, as in effect during the relevant timeframe, set forth a procedure for the court to determine whether a defendant is mentally competent to stand trial:
"(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 defendant's 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." (Former § 1368)

Defense counsel clarified that "at this point" she was seeking a psychological evaluation based on Evidence Code section 1017. The trial court granted the request, specifying that it would appoint "Dr. Jones" to conduct the evaluation pursuant to Evidence Code section 1017, and that Dr. Jones shall "present a confidential report back to defense counsel."
The minute order relating to the July 9, 2009 hearing correctly stated that the motion for a referral to Dr. Jones was made under Evidence Code section 1017. However, instead of stating that the psychological evaluation was to be confidentially provided to defense counsel, the minute order mistakenly stated that Dr. Jones was to "furnish [a] written report to the Court." Also in error, the notice of appointment sent by the trial court to Dr. Jones stated that Dr. Jones was to examine Farrar under section 1368 to determine if he was mentally competent to stand trial and whether antipsychotic medication was appropriate.
Apparently premised on the erroneous notice of appointment, Dr. Jones conducted a mental competency evaluation of Farrar on July 26, 2009, pursuant to section 1368. Dr. Jones prepared a written report, which concluded that Farrar was not competent to stand trial because he was "not able to understand the current proceedings" and was "not able to cooperate in a rational manner." Dr. Jones then sent a copy of his report to the trial court, which was stamped "received" by the court on August 4, 2009.
On August 10, 2009, during a trial readiness conference in front of Judge Bjork, Farrar made a Marsden motion to have Tolbert relieved as counsel and to obtain a different appointed attorney. The Honorable Richard A. Erwood in Department 3S conducted the Marsden hearing that same day, during which Farrar spoke coherently and rationally about his reasons for wanting different counsel to be appointed. In the course of his remarks, Farrar mentioned Dr. Jones's evaluation: "We just recently put in a 1017 motion. Okay. At the request of defense counsel. Okay. I was found incompetent. Okay. However, here I am having to argue my case to get rid of my attorney because I don't have a true representative." Tolbert also referenced Dr. Jones's report during her comments: "I did do a 1017 on him. The report did come back incompetent." Judge Erwood granted Farrar's Marsden motion and ordered that new counsel be appointed for Farrar.
At the conclusion of the Marsden hearing, Tolbert stated that she wanted to raise "one brief matter." Tolbert explained that on July 9, 2009, in Judge Bjork's department, "I requested a 1017. I received the report back, but it's listed as a 1368. I have had discussions with Mr. Farrar. He does not wish to make that public. And because of how it's coded or titled, I have some concerns. I don't want that released, please. I did pull the minute order, and the minute order from July 9th does say that the defense made a motion regarding 1017, but then it does go on to say that Dr. Jones is to furnish a written report to the court. So it's confusing." The trial court stated, "That's obviously an error," and then explained, "I have the reports in the file. I'll order the reports sealed." Tolbert asked if she could "just take the copies," rather than having them remain in the court file. The trial court stated, "I'm going to give these—all these reports to defense counsel, because they have no purpose—let me just make sure I—there's no purpose for them to be in this court file." After Tolbert assured the court that "[t]here's been no 1368 request ever in this matter," the trial court concluded, "Okay. Then I'll return these to counsel."
On October 27, 2009, when Farrar appeared with his new attorney for a trial readiness conference before the Honorable Jorge C. Hernandez, he made a request pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), for leave to represent himself at trial. After advising Farrar of his constitutional rights, engaging in a colloquy with Farrar, and reviewing Farrar's signed Faretta waiver, the trial court granted Farrar's request to represent himself at trial.
At the beginning of trial on November 2, 2009, Judge Bjork, who presided over the trial, inquired whether Farrar still wanted to represent himself. The trial court commented, "If you wish to proceed, you certainly seem to be intelligent enough from what I've heard from you. You certainly seem to be cognitive enough of what is going on to represent yourself. But I'll certainly grant you an attorney if you feel uncomfortable doing a jury trial." Farrar reaffirmed that he wanted to proceed in propria persona, and he declined to have advisory counsel appointed to assist him at trial.
Based on our review of the reporter's transcript, while representing himself during trial Farrar performed competently, expressed himself clearly and rationally, seemed able to understand what was occurring, and demonstrated respect toward the trial court and the court proceedings. Indeed, while acting as his own representative at trial, Farrar succeeded in obtaining a not guilty verdict on the robbery count and a not true finding on the allegation that he personally inflicted great bodily injury for the assault count.
The jury returned its verdict on November 6, 2009. On November 20, 2009, the trial court denied Farrar's motion for a new trial, in which Farrar, still acting in propria persona, argued that insufficient evidence supported the verdict. At the November 20, 2009 hearing, immediately after the trial court denied the motion for a new trial, Farrar informed the trial court that he wanted to raise the issue of his own competency based on the report prepared by Dr. Jones prior to trial. The trial court confirmed that Farrar was making a motion to have himself examined under section 1368 to determine his current competency to stand trial, and it granted the motion, appointing Dr. Jones to conduct the psychological evaluation.
Dr. Jones evaluated Farrar on November 28, 2009, concluding that Farrar was currently competent to stand trial. Specifically, Dr. Jones concluded that Farrar was "able to understand the current proceedings" and was "able to cooperate in a rational manner as long as he is his own attorney."
2. Applicable Legal Principles

We next examine the legal principles applicable to Farrar's contention that the trial court was required to hold a mental competency hearing based on the information presented during the August 10, 2009 Marsden hearing.
" ' "Both the due process clause of the Fourteenth Amendment . . . and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—[or lacks] . . . a rational as well as a factual understanding of the proceedings against him." ' [Citations.] [¶] Under both the federal Constitution and state law, the trial court must suspend criminal proceedings and conduct a competency hearing if presented with substantial evidence that the defendant is incompetent." '' " (People v. Mai (2013) 57 Cal.4th 986, 1032, italics added (Mai).)
" 'In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial.' " (People v. Ramos (2004) 34 Cal.4th 494, 507.) "The existence of other evidence, even if deemed to be in conflict with the substantial evidence of incompetency, does not relieve the court of the duty to conduct a competency hearing." (People v. Stankewitz (1982) 32 Cal.3d 80, 93 (Stankewitz).)
" 'Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations.' " (People v. Lewis (2008) 43 Cal.4th 415, 524 (Lewis).) Among other things, "[s]ubstantial evidence of incompetence exists when a qualified mental health expert who has examined the defendant states under oath, and ' " 'with particularity,' " ' a professional opinion that because of mental illness, the defendant is incapable of understanding the purpose or nature of the criminal proceedings against him, or of cooperating with counsel. [Citations] [¶] The defendant's demeanor and irrational behavior may also, in proper circumstances, constitute substantial evidence of incompetence. [¶] Counsel's assertion of a belief in a client's incompetence is entitled to some weight. But unless the court itself has declared a doubt as to the defendant's competence, and has asked for counsel's opinion on the subject, counsel's assertion that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing." (Mai, supra, 57 Cal.4th at pp. 1032-1033.)
In deciding whether the trial court was required to hold a competency hearing, our inquiry on appeal is whether a review of the record reveals "a showing of 'incompetence' that is 'substantial' as a matter of law." (Mai, supra, 57 Cal.4th at p. 1033.) In all other instances, where "we cannot say as a matter of law that the evidence raised a reasonable doubt as to defendant's mental competence" (People v. Danielson (1992) 3 Cal.4th 691, 727), the trial court's decision whether or not to hold a competency hearing "is entitled to great deference" and will not be disturbed absent an abuse of discretion. (Mai, at p. 1033; see also People v. Welch (1999) 20 Cal.4th 701, 742 (Welch) ["When the evidence casting doubt on an accused's present competence is less than substantial" it is "within the discretion of the trial judge whether to order a competence hearing"].)
Historically, our Supreme Court has viewed the failure to conduct a competency hearing when substantial evidence of incompetence exists as "per se prejudicial" which may not be " 'cured by a retrospective determination of defendant's mental competence during his trial.' " (Stankewitz, supra, 32 Cal.3d at p. 94.)
3. There is No Merit to Farrar's Contention That the Trial Court Should Have Conducted a Competency Hearing Based on the Information Provided at the August 10, 2009 Hearing

Farrar contends that the trial court committed reversible error because "[t]he court was required to conduct a competency hearing once it was presented with substantial evidence [Farrar] might have been incompetent to stand trial." He contends that such evidence was presented to the court on August 10, 2009, when "[Farrar] and defense counsel alerted the court . . . that the report of the forensic psychologist found him incompetent." According to Farrar, "[a]t this juncture, the court had before it substantial evidence [Farrar] might be incompetent to proceed to trial. The court clearly was aware of the existence of the psychologist's report and had been alerted it found [Farrar] incompetent to stand trial. . . . [T]he court was required at this juncture to conduct a full competency hearing."
Farrar primarily bases his argument on the fact that Dr. Jones's report was in the trial court's possession during the August 10, 2009 Marsden hearing, and during that hearing both Tolbert and Farrar referred to Dr. Jones's report as concluding that Farrar was incompetent. For several reasons, we conclude that the record does not show that the trial court was presented with substantial evidence of Farrar's incompetence to stand trial.
Importantly, although Dr. Jones's report was stamped "received" by the court clerk on August 4, 2009, and the report was in the possession of the trial court during the August 10, 2009 Marsden hearing, there is no indication in the record that the trial court ever read Dr. Jones's report or became aware of its contents. According to the court minutes, on the morning of August 10, 2009, Farrar's case was scheduled for a trial readiness conference in Department 3P in front of Judge Bjork. However, when Farrar requested a Marsden hearing, the case was sent to Department 3S (presumably along with the case file), for Judge Erwood to hold the Marsden hearing that afternoon. As he was only recently assigned to the matter, Judge Erwood would have received the case file shortly before conducting the Marsden hearing on the afternoon of August 10, 2009. According to the reporter's transcript, it appears that the first time that Judge Erwood became aware that Dr. Jones's report was in the court file was when, at the end of the Marsden hearing, Tolbert brought to the trial court's attention that Dr. Jones had mistakenly sent a report to the court although "there's been no 1368 request ever in this matter." Tolbert explained that she had previously requested a confidential report be prepared pursuant to section 1017 before Judge Bjork, and that it was mistakenly performed by Dr. Jones as a report under section 1368, but Farrar did "not wish to make that public." It appears that Judge Erwood then consulted the file and located Dr. Jones's report, saying "I have the reports in the file." After further discussion with Tolbert confirming that there had never been a request for an evaluation under section 1368 in Farrar's case, the trial court handed the report to Tolbert in open court during the hearing. Because he was informed that Dr. Jones's report was a confidential report that was supposed to have been performed under Evidence Code section 1017 that Farrar and Tolbert did not want to make public, to further review the report after learning about its existence at the end of the Marsden hearing, Judge Erwood would have had to find the privilege waived before he reviewed the contents of the report, but he did not do so. Under those circumstances, there is no basis in the record for us to conclude that Judge Erwood reviewed the finding in Dr. Jones's report and was therefore aware Dr. Jones had found Farrar incompetent to stand trial.
The brief references to Dr. Jones's report during the Marsden hearing also did not serve as substantial evidence of Farrar's incompetence to stand trial because the comments by Tolbert and Farrar were ambiguous about the contents of the report and did not clearly communicate that Farrar had been found to be incompetent to stand trial. Specifically, in their comments, both Tolbert and Farrar referred to a "1017" report. As we have explained, a report under Evidence Code section 1017 is not for the purpose of evaluating a defendant's mental competency to stand trial. Instead, an Evidence Code section 1017 report is created to assist defense counsel in advising the defendant "whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition." (Evid. Code, § 1017, subd. (a).) Accordingly, an evaluation under Evidence Code section 1017 focuses on the defendant's mental condition at the time of the crime. Thus, although Tolbert and Farrar stated that the report found Farrar to be "incompetent," in light of their description of the report as a "1017" report, it was not clear whether the report made findings regarding Farrar's mental condition at the time of the crime or regarding Farrar's present mental competence to stand trial.
In the absence of any indication that the trial court read the contents of Dr. Jones's report or necessarily should have understood from the comments at the Marsden hearing that Farrar might be incompetent to stand trial, there was no substantial evidence before the court requiring a competency hearing based on either the report itself or the comments by Farrar and Tolbert at the Marsden hearing.
The lack of any substantial evidence during the August 10, 2009 Marsden hearing that Farrar may have been incompetent to stand trial is further shown by the content of the reporter's transcript of that hearing. From the transcript of the Marsden hearing, it is evident that Farrar was acting rationally and was able to intelligently participate in the discussion, with no indication that he was suffering from any mental incompetency that would make him unable to consult with his lawyer or understand the proceedings against him. (See Lewis, supra, 43 Cal.4th at p. 525 [in concluding that there was no substantial evidence of the defendant's incompetence, the court observed that the defendant's "statements indicated the depth of his understanding of the proceedings and his ability to assist counsel"].) Further, although Tolbert described certain unusual behavior by Farrar that she had observed while representing him, including being "curled up in a ball," "shut[ting] down," and acting belligerent, Tolbert did not suggest that those behaviors caused her any concern that Farrar might not be mentally competent to stand trial. Indeed, Tolbert clarified to the court at the Marsden hearing that "there's been no 1368 request ever in this matter" to evaluate Farrar's competency to stand trial.
We accordingly conclude that the information presented to the trial court during the Marsden hearing on August 10, 2009 did not, as a matter of law, reveal substantial evidence of Farrar's incompetence to stand trial. Accordingly, the trial court was not required to order a mental competency hearing on that date.
B. The Trial Court Was Not Required to Deny Farrar's Subsequent Motion to Represent Himself Based on the Same Purported Evidence of Mental Incompetence Presented at the August 10, 2009 Marsden Hearing

In a related argument, which Farrar does not extensively develop, he contends that based on the same evidence of mental incompetence presented at the August 10, 2009 Marsden hearing, the trial court also should have concluded on October 27, 2009, that Farrar was not mentally competent to represent himself and thus abused its discretion in not denying Farrar's Faretta motion.
"A defendant has a federal constitutional right to the assistance of counsel during all critical stages of a criminal prosecution. (Faretta, supra, 422 U.S. at p. 807; United States v. Wade (1967) 388 U.S. 218, 223-227.) A defendant may also waive this right and personally represent him- or herself, so long as the defendant's waiver of the right to counsel is valid. A valid waiver requires that the defendant possess the mental capacity to comprehend the nature and object of the proceedings against him or her, and that the defendant waive the right knowingly and voluntarily. (People v. Koontz (2002) 27 Cal.4th 1041, 1069 (Koontz).) If a defendant has validly waived the right to counsel, a trial court must grant a defendant's request for self-representation. (People v. Welch, supra, 20 Cal.4th at p. 729.) We review a Faretta waiver de novo, and examine the entire record to determine the validity of a defendant's waiver of the right to counsel." (People v. Mickel (2016) 2 Cal.5th 181, 205 (Mickel).) Also, as applicable here, "a trial court may exercise its discretion to deny self-representation where a defendant suffers from a severe mental illness such that he or she is unable to perform the basic tasks necessary to present a defense." (Id. at p. 208, italics added.)
Although not directly challenging the validity of the Faretta waiver, Farrar contends that the trial court abused its discretion by not denying his request for self-representation based on the evidence of mental incompetence presented at the August 10, 2009 Marsden hearing. Farrar argues that, at a minimum, the trial court should have held a competency hearing before granting the Faretta motion.
Farrar's argument is based on the same faulty premise that we have rejected above, namely that during the August 10, 2009 Marsden hearing, the trial court had before it a report from Dr. Jones that found Farrar to be incompetent to stand trial. However, as we have discussed, there is no indication that the trial court read the contents of Dr. Jones's report or understood from the ambiguous comments made by Tolbert and Farrar during the Marsden hearing that Farrar had been found to be incompetent to stand trial. Further, we note that different judges presided over the August 10, 2009 Marsden hearing (Judge Erwood) and the October 27, 2009 hearing on Farrar's Faretta motion (Judge Hernandez). Because Judge Erwood removed Dr. Jones's report from the court file and gave it to Tolbert on August 10, 2009, there is no basis to conclude that Judge Hernandez knew of the existence of Dr. Jones's report, let alone its contents.
Accordingly, because there is no indication that the trial court was aware of the contents of Dr. Jones's report, either on August 10 or October 27, 2009, Farrar has not established in connection with the Faretta motion that the trial court was aware of information that should have caused it to exercise its discretion to decide that Farrar "suffers from a severe mental illness such that he or she is unable to perform the basic tasks necessary to present a defense" (Mickel, supra, 2 Cal.5th at p. 208), or to conclude that a competency hearing was necessary to decide whether that was the case.
C. The Trial Court Did Not Err in Failing to Give a Sua Sponte Unanimity Instruction

We next consider Farrar's contention that the trial court erred in not instructing the jury that it was required to reach a unanimous verdict as to which act constituted the assault with a deadly weapon charged in count 3.
As we have described, in count 3 Farrar was charged with assault with a deadly weapon on Janet by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) It was specifically alleged that the deadly weapon consisted of a car. Relevant to this count, the evidence at trial showed that Farrar first dragged Janet with the car while she was leaning into the window, causing her to eventually fall out and injure herself. Farrar then put the car in reverse and backed up to where Janet had been lying on the ground. Farrar contends that either of the acts he committed with the car could have been the basis for the jury's finding that he committed assault with a deadly weapon. Specifically, Farrar argues that the jury could have found that the assault occurred when he accelerated the car with Janet leaning into it, or the jury could have found that the assault occurred when he backed up the car to try to run over Janet on the ground. Farrar contends that because two different acts could have formed the basis for the assault conviction, the jury should have been instructed that it had to reach a unanimous verdict on which act constituted the assault.
"In a criminal case, a jury verdict must be unanimous. . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132, citations omitted.) Thus, "[a]s a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679.) A unanimity instruction " 'is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' " (Russo, at p. 1132.) Whether or not a unanimity instruction is requested, it should be given sua sponte " 'where the circumstances of the case so dictate.' " (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
As relevant here, " 'a unanimity instruction is not required when the case falls within the continuous course of conduct exception.' " (People v. Jenkins (1994) 29 Cal.App.4th 287, 298-299 (Jenkins).) The continuous course of conduct exception arises " ' 'when the acts are so closely connected that they form part of one and the same transaction, and thus one offense." ' " (People v. Hernandez (2013) 217 Cal.App.4th 559, 572 (Hernandez).)
We apply a de novo standard of review when considering whether the trial court erred in not giving a unanimity instruction. (Hernandez, supra, 217 Cal.App.4th at p. 568).)
Here, the People contend that a unanimity instruction on the assault with a deadly weapon count was not required for two separate reasons. First, they contend that the prosecutor made an election between the two acts, informing the jury during closing argument that the assault count was premised solely upon the act of accelerating the car while Janet was leaning into it. Second, the People contend that even if no election was made, the scenario during which the acts took place constituted a continuous course of conduct, so that no unanimity instruction was required. As we will explain, we reject the first argument but find merit to the second.
In order to communicate an election between the acts constituting the assault with a deadly weapon, the People must have made a clear and direct statement to the jury on that subject. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539 ["If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecutor's statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act."].) Here, during closing argument, the prosecutor discussed both the initial acceleration of the car as well as the subsequent act of reversing the car as possible bases for an assault with a deadly weapon conviction and did not make a clear election between them. Specifically, in initially discussing the assault with a deadly weapon count the prosecutor stated that the car was the deadly weapon and that "he accelerated that vehicle and that is the act." In that regard, the prosecutor also argued that a reasonable person would know that serious harm would result "when you drag someone with their head and their purse in the driver's side window while you're accelerating a vehicle." However, later in the closing argument, the prosecutor introduced the subject of "the reversal of the car." She explained, "This is clearly an act that would result in great bodily injury to somebody. Running over them with a vehicle. Not to mention the fact . . . that he reversed completely destroys all of these stories. There was no reason to reverse . . . [So], [w]hen we're talking about the reversal of the vehicle, we are talking about an act that he engaged in that could have seriously, seriously hurt her. And he did it intentionally." Based on these comments, the jury reasonably could understand the People to be proceeding under the theory that both the act of accelerating the car and the act of reversing the car were intentional acts constituting an assault with a deadly weapon by means of force likely to produce great bodily injury. Therefore, the prosecutor did not clearly and directly communicate to the jury that she was proceeding only based on one of the two acts.
However, as we will explain, there was no need for an election or unanimity instruction because Farrar's violent acts toward Janet, in which he used his car as a weapon, constituted a continuous course of conduct. Under the course of conduct exception, "[t]he unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction." (People v. Crandell (1988) 46 Cal.3d 833, 875.) " 'This is because . . . the multiple acts constitute one discrete criminal event.' " (People v. Flores (2007) 157 Cal.App.4th 216, 222 (Flores).)
The continuous course of conduct exception applies when a defendant commits an assault or other physically injurious crime by committing several different acts in short succession, so that all the acts are part of one indivisible attempt to inflict injury on the victim. One long-standing authority illustrating this principle is People v. Jefferson (1954) 123 Cal.App.2d 219. (See People v. Harrison (1989) 48 Cal.3d 321, 334, fn. 10 [citing Jefferson to illustrate that "an exception exists where a series of acts are part of the same, continuous transaction"].) In Jefferson, a woman was charged with assaulting a police officer who responded to an incident at her home. (Id. at p. 219.) The officer first encountered the woman outside, holding a butcher knife, which she swung at the officer, cutting his sleeve. (Id. at p. 220.) The woman then went inside the house, where she picked up a pocket knife and cut the officer's hand with it. (Ibid.) Jefferson concluded that the People were not required to elect between the two knife attacks in proving the assault charge. Applying the continuous course of conduct exception, Jefferson explained that "[b]oth of the matters relied on as being separate and distinct offenses, occurred in the course of a continuous effort on the part of the officers to disarm the [defendant]. They were a part of the same incident, and they could not reasonably be held to constitute two separate offenses, each complete in itself, and each of which would require a separate charge and a separate trial. Within a moment or two after the cutting of [the officer's] coat these parties went into the house, the officer grabbed the knife when it was laid down, and the [defendant] immediately got the other knife and began slashing at the officers." (Id. at p. 221.)
Other cases apply the same principle, concluding that no unanimity instruction is required when the evidence shows a continuous physical attack by the defendant on a single victim. (People v. Muniz (1989) 213 Cal.App.3d 1508, 1513, 1518 [the defendant's conduct in causing the victim to fall from his vehicle and become unconscious and then beating her were part of the same continuous course of conduct, so that no unanimity instruction for a great bodily injury finding]; Flores, supra, 157 Cal.App.4th at pp. 222-223 [the continuous course of conduct exception applied in a prosecution charging one count of assault with a semiautomatic firearm when the defendant fired multiple rounds using the same firearm while standing in the same location]; People v. Mota (1981) 115 Cal.App.3d 227, 233-234 [the continuous course of conduct exception applied when the victim was "repeatedly and continuously raped and assaulted by three men inside the back of the van in a short period of time"]; People v. McIntyre (1981) 115 Cal.App.3d 899, 910 [two acts of oral copulation during the same incident were part of a continuous course of conduct, with the court noting the accepted rule that there are not two "separate crimes of battery if the actor throws a right-hand punch to his victim and immediately follows it with a left-hand punch"].)
Here, as in the case law we have cited above, Farrar engaged in a continuous course of conduct in attempting to inflict physical injury on Janet using his vehicle. The acts of accelerating and then reversing the car were performed very close in time to each other and both were directed toward injuring Janet during a single confrontation with her. Accordingly, like the continuous physical assaults involving several discrete acts, which case law recognizes to constitute a continuous course of conduct, Farrar's use of his vehicle to assault Janet in the parking lot of the apartment building also constituted a continuous assault. No unanimity instruction was required.
D. The Trial Court Erred in Finding That the 1987 Robbery Conviction in Nevada Constituted a Prior Strike and a Serious Felony Conviction

In 1987, Farrar was convicted of robbery in Clark County, Nevada, which the People alleged to constitute a serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12). At a hearing on November 9, 2009, the trial court was presented with a packet of records relating to the Nevada conviction, and it noted that Farrar had pled guilty to the Nevada robbery on February 17, 1987. The trial court made a true finding that Farrar incurred the 1987 robbery conviction, and it further found that the 1987 conviction constituted a serious felony conviction and a prior strike. Farrar contends that the trial court erred in finding that the Nevada robbery conviction qualified as a serious felony and prior strike because the elements of robbery in Nevada are broader than the elements of robbery in California.
We first review the law applicable to using an out-of-state conviction for the purpose of imposing a sentence enhancement based on a serious felony or a prior strike.
" 'Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must "include[ ] all of the elements of any serious felony" in California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the foreign crime (1) must be such that, "if committed in California, [it would be] punishable by imprisonment in the state prison" (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must "include[ ] all of the elements of the particular felony as defined in" section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).' " (People v. Navarette (2016) 4 Cal.App.5th 829, 842.) "A criminal offender may also be sentenced under the three strikes law if he or she has a prior conviction for a 'violent felony' as defined in section 667.5, subdivision (c). (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).)" (Navarette, at p. 842, fn. 7.)
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt." (People v. Miles (2008) 43 Cal.4th 1074, 1082.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Id. at p. 1083.)
Under California law, the crime of robbery constitutes both a serious felony (§§ 667. subds. (a)(4), (d)(1), 1192.7, subd. (c)(19)) and a violent felony. (§§ 667, subd. (d)(1), 667.5, subd. (c)(9).) However, Farrar's conviction for robbery in Nevada could only be considered a serious felony and a prior strike if it included all the elements of a robbery under California law. (§§ 667, subds. (a)(1), (d)(2), 1170.12, subd. (b)(2).) There is no indication in the record that the trial court conducted any analysis to determine whether the elements of robbery in Nevada include all of the elements of robbery in California. As we will explain, had it done so, it would have necessarily concluded that the People failed to establish that robbery in Nevada includes all of the elements of robbery in California.
In making the findings at the November 9, 2009 hearing, the trial court was presented with a copy of the Nevada statute defining the crime of robbery:
"1. Robbery is the unlawful taking of personal property from the person of another, or in the person's presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to:

"(a) Obtain or retain possession of the property;

"(b) Prevent or overcome resistance to the taking; or

"(c) Facilitate escape.

"The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear." (Nev. Rev. Stat., § 200.380)

In contrast, robbery is defined in California as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Under California law, "[r]obbery requires a 'felonious taking' which means a specific intent to permanently deprive the victim of the property." (People v. Torres (1995) 33 Cal.App.4th 37, 50.)
Further, "[t]he fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.)
As our Supreme Court acknowledged in McGee, "the elements of robbery under Nevada law differ[] in two respects from the elements of that offense under California law. First, under Nevada law, robbery requires only general criminal intent . . ., whereas under California law, robbery requires a specific criminal intent to permanently deprive another person of property . . . Second, under Nevada law, a taking accomplished by fear of future injury to the person or property of anyone in the company of the victim at the time of the offense qualifies as robbery (Nev. Rev. Stat., § 200.380), whereas under California law such a taking does not (§ 212)." (People v. McGee (2006) 38 Cal.4th 682, 688, citations omitted (McGee).) Thus, it is "possible that [a] defendant's Nevada conviction[] involved conduct that would not constitute robbery under California law." (Ibid.)
Based on the differences between the offense of robbery in California and Nevada that we have set forth above, Farrar contends that his "prior conviction for robbery in Nevada may not be used for purposes of imposing a five-year enhancement or doubling his sentence, as was done in this case[,] because robbery in Nevada is broader than robbery in California." The Attorney General agrees and concedes that "the court should reverse the trial court's finding that the Nevada conviction qualifies as a strike/serious-felony prior."
We agree with the parties. As clearly explained in McGee, the crime of robbery in Nevada does not include all the elements of a robbery under California law, and thus the trial court erred in finding that the 1987 robbery conviction was a serious felony conviction and prior strike under the applicable sentencing enhancements. (§§ 667, subds. (a)(1), (d)(2), 1170.12, subd. (b)(2).) We accordingly reverse the finding that Farrar's 1987 conviction for robbery in Nevada qualifies as a serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12).
In the respondent's brief, which was submitted prior to our Supreme Court's opinion in People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), the Attorney General argued that although we should reverse the trial court's true finding that the 1987 robbery conviction in Nevada qualifies as a serious felony conviction and a prior strike, we should nevertheless remand for a jury trial on that issue. In light of our Supreme Court's opinion in Gallardo, we asked the parties to provide supplemental briefing on the Attorney General's contention that the matter should be remanded for a jury trial. In his supplemental briefing, the Attorney General concedes that "Gallardo renders untenable respondent's argument that the trial court's strike and serious-felony finding should be remanded for a jury trial." The Attorney General argues that consistent with the disposition in Gallardo, we should remand for the trial court "to review the record of conviction in order to determine what facts were necessarily found or admitted in the prior proceeding." (Gallardo, at p. 138.) If the trial court is able to find, based on the record of conviction, that Farrar's 1987 robbery conviction in Nevada meets all the elements of a robbery in California, it may make a true finding that Farrar incurred a serious felony conviction and a prior strike.
In his supplemental briefing, Farrar agrees with the course of action proposed by the Attorney General. Farrar states that "[t]he matter should be remanded for the trial court to determine whether a jury found, or [Farrar] admitted, that he used force or fear against the victim to steal the victim's property, and that he intended to permanently deprive the victim of the property."
We will follow the parties' proposed approach for further proceedings concerning the serious felony conviction and prior strike allegations by remanding to the trial court, but we caution that, as Gallardo pointed out, the trial court is "limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, supra, 4 Cal.5th at p. 136.)
Accordingly, this matter will be remanded for further proceedings by the trial court to determine whether the record of conviction for the 1987 robbery conviction in Nevada establishes that Farrar was convicted of a robbery that has the same elements as the crime of robbery in California and thus constitutes a serious felony conviction and a prior strike under California law.
E. Farrar's Presentence Custody Credits Must Be Recalculated
At sentencing, the trial court awarded Farrar 375 days in presentence conduct credits. Farrar contends, and the Attorney General agrees, that the trial court erred in calculating Farrar's presentence custody credits.
"A defendant in a felony or misdemeanor case may . . . earn additional presentence credits against his or her sentence, called 'conduct credits,' for performing assigned labor (§ 4019, subd. (b)), and for complying with applicable rules and regulations (§ 4019, subd. (c))." (In re Mallard (2017) 7 Cal.App.5th 1220, 1225.) However, a person convicted of a violent felony for purposes of section 667.5, subdivision (c) is limited to accruing conduct credit equivalent of no more than 15 percent of his actual presentence confinement. (§ 2933.1, subds. (a), (c).)
In sentencing Farrar, the trial court limited Farrar's conduct credits because it apparently accepted the probation department's statement that the limitation in section 2933.1 applied. However, the application of section 2933.1 was erroneous because neither of the crimes of which Farrar was convicted (§§ 273.5, subd. (a), 245, subd. (a)(1)) are listed as violent felonies in section 667.5, subdivision (c).
Farrar contends that without the erroneous limitation on his conduct credits, he should have been awarded 1,250 days of conduct credit instead of 375 days. The Attorney General agrees that Farrar's conduct credits should not have been limited based on section 2933.1.
We agree with the parties that there is no basis in the record to limit Farrar's conduct credit pursuant to section 2933.1, as he was not convicted of a violent felony. We accordingly direct the trial court on remand to recalculate Farrar's conduct credits without the limitation set forth in section 2933.1.
F. The Court Operations Assessment Fee Should Have Been Set at $30.00

At sentencing, as reflected in the minute order, the trial court imposed a court operations assessment fee of $40.00 for each count pursuant to section 1465.8.
At the time of Farrar's sentencing in 2016, section 1465.8, subdivision (a)(1) provided: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . . ." However, at the time Farrar was convicted in November 2009, the statute indicated an assessment of $30.00. (Former § 1465.8, subd. (a)(1).) Farrar and the Attorney General both agree that the applicability of an assessment under section 1465.8, subdivision (a)(1) is determined by the date of conviction. (People v. Alford (2007) 42 Cal.4th 749, 754 ["the Legislature intended to impose the court security fee to all convictions after its operative date"].) Thus, the trial court should have assessed the $30.00 fee applicable at the time of Farrar's conviction, not the $40.00 fee applicable at the time of sentencing.
Accordingly, we direct that on remand the trial court shall impose a court operations assessment fee of $30.00 per count, rather than $40.00 per count.


DISPOSITION
We reverse the true finding that Farrar's 1987 robbery conviction in Nevada qualifies as a serious felony and a prior strike, and we remand for further proceedings by the trial court to determine whether the record of conviction for the 1987 Nevada conviction enables the trial court to make such a finding on remand. We also direct the trial court to recalculate Farrar's presentence conduct credits and to impose a court operations assessment fee of $30.00 per count, instead of $40.00 per count. In all other respects, the judgment is affirmed, and this matter is remanded for resentencing proceedings consistent with this opinion.


IRION, J.

WE CONCUR:




McCONNELL, P. J.




HUFFMAN, J.