P. v. Halsell

Filed 11/30/07 P. v. Halsell CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Affirmed.

David M. Thompson, 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, Kenneth C. Byrne and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Ronald Earl Halsell of first degree burglary, first degree residential robbery, battery with serious injury, assault, and making criminal threats. It found true the allegations that defendant had inflicted great bodily injury upon the victim and that he knew she was 65 years or older when he committed the crimes. In a bench trial, the court found true multiple prior conviction allegations, including those made pursuant to the Three Strikes law. The court sentenced defendant to a term of 82 years to life.

On appeal, defendant primarily contends that the trial court erred when it denied his request for a secondcompetency hearing prior to trial. We reject the contention because substantial evidence supports the trial courts finding that defendant failed to present new evidence that raised a serious doubt about the prior finding of competency. Secondarily, defendant raises a claim of sentencing error which we conclude lacks merit. We therefore affirm the judgment.

THE CRIMES

Because defendant does not challenge the sufficiency of the evidence to sustain his convictions, we briefly recite the operative facts in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.) During the afternoon of January 27, 2004, defendant entered the apartment of 68-year old Marian Williams. Williams is five feet six inches tall. He tried to strangle her, knocking her to the ground. She screamed and fought with him. He threatened to kill her. During the struggle, defendant seriously injured Williams shoulder, an injury which required shoulder replacement surgery. He stole her money and jewelry before fleeing the scene.

FACTUAL AND PROCEDURAL BACKGROUND RE COMPETENCY

1. Overview

Defendants contention of reversible error is based upon the trial courts denial of his second request to adjourn criminal proceedings and conduct a competency hearing. In 2004, defendant made his first request, claiming mental illness. The trial court adjourned criminal proceedings and committed defendant to the state mental hospital. After the examining doctors concluded that defendant had been feigning mental illness, the trial court found him competent to stand trial and resumed criminal proceedings. Approximately one year later, defendant moved for another competency hearing, this time claiming that mild mental retardation rendered him unfit to stand trial. Because the trial court had already once adjourned proceedings but later found defendant to be competent, case law required defendant to offer new evidence that raised a serious doubt about the prior competency finding. The trial court found that he failed to sustain that burden. To explain why substantial evidence supports that decision, we set forth a detailed recitation not only of the evidence proffered in regard to defendants request for a second competency hearing but also the facts relevant to the first competency hearing and finding.

2. Initial Proceedings re Defendants Competency

In March 2004, before the preliminary hearing was conducted, the trial court declared a doubt as to defendants competency and adjourned criminal proceedings. ( 1368.)[1]

In April 2004, Dr. Plotkin submitted a report to the trial court based upon his jail-house interview of defendant. Dr. Plotkin characterized defendant as an alert and oriented male, who had dramatically slow answers and appeared to be suffering from some thought withdrawal. . . . His thought process was, for the most part, organized, but with a substantial delay in his answers. . . . His sensorium examination showed limited general fund of knowledge, poor attention and recall, and concrete reasoning skills. (Italics added.) Dr. Plotkin opined that although defendant appears to superficially be able to understand the proceedings, he was unable to cooperate with counsel. He stated that [o]n face value, this defendant appears to have a major mental disorder. It is always possible that he may be embellishing or malingering symptoms; however, we do not have enough data to make that determination at this point. He therefore recommended that defendant be subject to further evaluation. Relying upon Dr. Plotkins report, the trial court found defendant incompetent to stand trial and committed him to Patton State Hospital.

In July 2004, Dr. Kerbel, after examining defendant at Patton State Hospital, filed a Comprehensive Psychological Assessment. He concluded that defendant was clearly feigning the presence of symptoms of severe mental illness but given defendants history of schizophrenia, the presence of a genuine mental illness could not be ruled out at that point. His assessment of defendant included several observations relevant to defendants subsequent claim of incompetency caused by mental retardation. Dr. Kerbel found no mental retardation and no reason to suspect mental retardation. He wrote that it is important to note that notwithstanding the fact that defendant informed him that he had been enrolled in special education classes in school, during the interview he showed very good verbal skills. Dr. Kerbel also concluded that while defendants score on one intelligence test would usually be associated with some degree of [cognitive] impairment, it was likely that the obtained score is a result of some malingering given that defendant was malingering symptoms of mental illness and memory impairment[,] . . . and has shown no credible evidence of any cognitive impairment in his daily functioning [while at Patton].

In September 2004, Patton State Hospital submitted its report to the trial court, concluding that defendant was competent to stand trial. In particular, the examining doctors (including Dr. Kerbel) found that defendants behavior at the hospital showed no evidence of any cognitive or neuropsychological impairment. He was administered psychological assessment tests that indicated that there was a 100% probability that [he] was feigning or exaggerating the symptoms of mental illness, and there was a 0% probability that he was responding honestly. . . . [He] is clearly feigning memory impairment. He is feigning or grossly exaggerating symptoms of mental illness. . . . If any genuine symptoms are present, they are not of a degree that would prevent trial competency.

Particularly significant to this appeal is the reports finding that defendants statements to hospital staff claiming ignorance of the judicial system were not believable and that he had, in fact, a good understanding of the court process. In reaching this conclusion, the report noted defendants extensive history with the criminal justice system. In addition, it pointed out that in one evaluation, defendant had answered I dont know to every legal-related question, and, when given a choice between two possible answers, always chose the wrong answer. The report explained: To answer incorrectly on all questions requires a good knowledge of the topic in order to pick the wrong answer. If someone truly did not know anything about the court they would guess correctly 50% of the time. The report opined: The only reasonable explanation is that [defendant] is feigning ignorance about the judicial process in an attempt to stay in the hospital, not to be returned to court, and to avoid criminal prosecution. The report concluded: [Defendant] has a rational and factual understanding of the nature and purpose of the proceedings taken against him, including courtroom processes, procedures and personnel. He has all of the abilities required to rationally assist counsel in the preparation and presentation of a defense. He has no symptoms of memory impairment that would prevent active cooperation with counsel.

In addition, Dr. Blake Skrdla, pursuant to court appointment (Evid. Code,  730), examined defendant in September 2004. In addition, he reviewed the September report from Patton State Hospital. Dr. Skrdla also concluded defendant was competent to stand trial.

At a hearing conducted on September 21, 2004 the court found defendant competent to stand trial.

3. Resumption of Criminal Proceedings

Criminal proceedings resumed. In October 2004, a preliminary hearing was conducted. The magistrate held defendant to answer on multiple charges. The People filed a multi-count information in the superior court.

4. Defendants Second Request for a Declaration of Incompetency to Stand Trial

In February 2005, deputy public defender Paris Cohen was assigned to represent defendant.[2] In the following months, she obtained defendants school, prison and other institutional records, records which she claimed outlined defendants developmental disorder and mental disability, dating back to his childhood. Entertaining a doubt as to defendants competency to stand trial, she sought appointment of another expert. The trial court granted her request and appointed Dr. Fairbanks (a licensed psychologist) to evaluate defendant.

5. Defense Evidence Re Second Request for Incompetency Hearing

Dr. Fairbanks reviewed all of the reports described above as well as a June 2005 Psychological/Social History report prepared for defense counsel by Vicky Russell, a member of the Mitigation Team. Russells report primarily tracked defendants history of substance abuse and mental illness. That history indicated that between 1989 and 2004, defendant had been subject to eight separate mental diagnoses in state hospitals and prison, none of which suggested mental retardation.

Dr. Fairbanks did not consult with any of the mental health professionals who had examined defendant at Patton State Hospital. Dr. Fairbanks spent five to six hours with defendant, during which time he interviewed him and administered several tests.

Dr. Fairbanks filed a 10-page psychological evaluation with the court. In it, Dr. Fairbanks explained that the results of tests he had administered to defendant indicated defendant clearly performs intellectually in the retarded range of intelligence currently on his current medication; rule[d] out, on a statistical basis, the likelihood of his malingering at this time; and clearly indicate[s] that on all categories he was incompetent at the mentally retarded level and clearly is incompetent to stand trial given those results. Dr. Fairbanks concluded that [i]t was apparent to [him] that previous individuals did not take into consideration the potential fact that [defendant] was mentally retarded. . . . Until now apparently no one had determined that he was, in fact, mentally retarded and that certainly is the case. This is, of course, very significant new information that should be available to the Court and make a significant difference relative to the issues before the Court as well. However, Dr. Fairbanks never explicitly referenced the statutory definition of incompetency ( 1367). As a result, his report failed to tie any of the facts he discussed to his ultimate conclusion that defendant was incompetent to stand trial. Instead, the clear tenor of his report was that because defendant was mentally retarded, he was incompetent.

Relying upon Dr. Fairbanks report, defense counsel moved, in September 2005, to again suspend criminal proceedings and to conduct another competency hearing.

At the next reported hearing, the trial court expressed two concerns. The first was whether Dr. Fairbanks report was truly new evidence that cast a serious doubt on the finding made in September 2004 that defendant was competent to stand trial. The second was whether defense counsel was improperly equating mental retardation with competency to stand trial. Consequently, the court continued the case to permit defense counsel to call Dr. Fairbanks as a witness and to present further documentation to the court.

At a hearing conducted on October 25, 2005, Dr. Fairbanks testified. The parties stipulated that he was qualified to render opinions on issues of mental health. He has an extensive background in evaluating mental retardation. He assessed defendant as being mildly mentally retarded which meant his mental age and developmental skills would not exceed that of a 12-year old.[3] Dr. Fairbanks conceded that not all mentally retarded individuals are incompetent to stand trial.

Dr. Fairbanks testified that, in his opinion, defendant was mentally retarded and incompetent to stand trial. He relied primarily upon the results of the CAST-MR test he had administered to defendant.[4] Dr. Fairbanks explained that the CAST-MR is a very rough test, a special tool thats designed for assessing competency in mentally retarded individuals, [and defendant] produced scores that placed him comparable to other individuals who are mentally retarded and incompetent. He conceded that his reliance on the test results was premised upon the assumptions that defendant had been truthful and had put forth a genuine effort in taking the test. He also conceded that an individual (such as defendant) charged with crimes carrying a life sentence would have a strong motivation to want to appear to be incompetent so as to suspend [the] criminal proceedings against him. When asked why none of the many previous mental examiners had found defendant to be mentally retarded, Dr. Fairbanks replied: My impression is that they waived that issue, because they assumed that he was not mentally retarded.

Dr. Fairbanks concluded that defendant was incompetent to stand trial because hes mentally retarded and because hes not able to answer questions sufficiently to distance himself from known mentally retarded incompetent individuals. However, in response to a question from the court, the doctor conceded that he believed that because defendant had a developmental disability, he was therefore incompetent. In addition, some of Dr. Fairbanks testimony suggested a misunderstanding of the legal definition of incompetency. At one point, the doctor testified competency included the ability to effectively participate in your own defense when, in fact, as will be explained below, the statutory definition ( 1367) does not mention that element. At several other points, the doctor indicated that he based his finding of incompetency on section 1370.1, a section that does not define competency (section 1367 does) but instead sets forth the procedure the trial court should follow if it finds a defendant incompetent to stand trial and the incompetency is based upon a developmental disability.

6. The Trial Courts Ruling

The trial court denied the defense request for a second competency hearing. It explained (properly) that given the September 2004 finding that defendant was competent to stand trial, a second competency hearing was required only if the evidence disclosed a substantial change of circumstances or if new evidence cast serious doubt on the earlier finding. In rendering its ruling, the trial court relied upon all of the reports described above, Dr. Fairbanks testimony, and the files in defendants earlier cases, including a previous jury trial.[5]

The trial court noted that the new evidence presented by the defense was an evaluation that [defendant] may be mildly retarded, that some kind of an organic mild retardation . . . may have existed . . . since he was under 18, and that the retardation was a pre-existing, long-term, life-long condition. The court also observed that Dr. Fairbanks had essentially conceded that he had concluded that defendant was incompetent to stand trial simply because he was developmentally disabled.

The trial court found that that Dr. Fairbanks evaluation did not constitute new evidence. It explained: [I]n looking at [defendants] history, one can easily determine that he is of limited abilities, and theres no question about that. It also noted that the doctors evaluation of competence is not entirely accurate, because the standard that he defined doesnt appear to be the standard that [section 1367] provides. In any event, the court found that even assuming defendant was mildly mentally retarded, it had no doubt that he was nonetheless competent to stand trial. The court observed that defendant had a lengthy history of understanding criminal proceedings brought against him and assisting counsel in his defense and that Dr. Fairbanks report and testimony were insufficient to call into question the earlier finding of competency.[6]

DISCUSSION

A. DENIAL OF DEFENSE REQUEST FOR COMPETENCY HEARING

Due process prohibits trying or convicting a defendant who is mentally incompetent. (People v. Rogers (2006) 39 Cal.4th 826, 846.) A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. ( 1367, subd. (a).) Mental retardation constitutes a developmental disability. ( 1370.1, subd. (a)(1)(H).)

When, as here, a competency hearing has already been held and defendant has been found competent to stand trial . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that finding. (People v. Lawley (2002) 27 Cal.4th 102, 136.) The trial courts denial of a second competency hearing is reviewed under a deferential standard of review: we determine whether substantial evidence supports its ruling. (People v. Huggins (2006) 38 Cal.4th 175, 220.)

Defendant argues that Dr. Fairbanks opinion that he was mildly mentally retarded was sufficient new evidence that cast serious doubt on the validity of the prior finding of competency. We are not persuaded. The trial court, by finding that defendants possession of limited abilities was a fact easily determined from a review of his records, essentially concluded that the possibility of mental retardation had already been presented and considered. Substantial evidence supports that finding for several reasons. For one, defendants school records showed not only consistently very poor academic performance but enrollment in special education classes. Hence, the possibility of a developmental disability was always apparent. (See People v. Leonard (2007) 40 Cal.4th 1370, 1415-1416.) For another, Dr. Plotkins April 2004 report, filed after the trial court first declared a doubt as to defendants competency, indicated defendants thought process was slow. When Dr. Kerbel thereafter examined defendant at Patton State Hospital, he evaluated defendant for mental retardation. Dr. Kerbels conclusion in his July 2004 report that there was no evidence of mental retardation and no reason to suspect its presence clearly refutes Dr. Fairbanks belief that prior to his examination of defendant, others had failed to consider whether defendant was mentally retarded.[7]Consequently, Dr. Fairbanks contrary conclusory opinion did not constitute new evidence.

In any event, assuming arguendo that Dr. Fairbanks opinion that defendant was mildly mentally retarded constituted new evidence, substantial evidence supports the trial courts additional finding that this evidence did not cast serious doubt on the earlier competency finding. For one thing, mild mental retardation does not necessarily result in incompetency to stand trial. For another thing, the trial court could reasonably be skeptical of the doctors opinion. Thirteen months earlier, before defendants preliminary hearing, the trial court had found defendant competent to stand trial after submission of a report which detailed that defendant was feigning mental illness, memory impairment, and ignorance about the judicial process. Dr. Fairbanks opinion that defendant was now incompetent to stand trial was based primarily upon the results of one test (the CAST-MR), a test the doctor conceded that defendant could manipulate and had motive to manipulate. Given that the mental health professionals who examined defendant in 2004 concluded that defendant had falsified the results of one test they had administered to him, the trial court could reasonably conclude that the CAST-MR exam was of little, if any, evidentiary value. Furthermore, Dr. Fairbanks opinion that defendant was incompetent to stand trial was undermined by the doctors overbroad understanding of incompetency (belief that it includes ability to effectively participate in the defense), his improper reliance upon section 1370.1, and his apparent belief that mental retardation per se resulted in incompetency. In sum, substantial evidence supports the trial courts finding that the defense had failed to discharge its burden of presenting new evidence that cast a serious doubt on the prior finding that defendant was competent to stand trial. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047-1049 [expert testimony that a defendant was not competent did not constitute substantial evidence because the trial court rejected the experts testimony for plausible reasons, including lack of credibility; People v. Leever (1985) 173 Cal.App.3d 853, 864 [an experts report which merely contains evaluations without specific reference to the defendants competency will not furnish substantial evidence of incompetency]; and People v. Burney (1981) 115 Cal.App.3d 497, 503 [the expert must state with particularity that the defendant is incapable of understanding the purpose or nature of the criminal case brought against him or is incapable of assisting in his counsel in the conduct of his defense].)

SENTENCING

1. Overview

As noted in our introduction, the trial court found true multiple prior conviction allegations, including those made under the Three Strikes law. The Three Strikes law requires mandatory consecutive sentences [i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts. ( 667, subd. (c)(6).) Hence, if the crimes are committed on the same occasion or arise from the same set of operative facts, the trial court has discretion to impose either concurrent or consecutive sentences. (People v. Casper (2004) 33 Cal.4th 38, 42; People v. Lawrence (2000) 24 Cal.4th 219, 233; People v. Deloza (1998) 18 Cal.4th 585, 593-596, and People v. Hendrix (1997) 16 Cal.4th 508, 512-513.) Here, the trial court imposed, without any objection from defense counsel, consecutive sentences for the residential burglary and battery with serious bodily injury convictions. Defendant contends that sentencing choice was error. We disagree.

2. Factual Background

Before the court conducted the sentencing hearing, defendant filed two sentencing memoranda. The first one stated that consecutive sentencing is not mandatory because the crimes were in fact committed on the same occasion and arise out of the same set of operative facts. The second memorandum made the passing observation that the sentences should be run concurrently but offered no fact-specific argument to support that conclusion.

The prosecutors sentencing memorandum conceded that the trial court may, but is not compelled to, impose sentence on Count 5 [battery with serious injury] consecutive to the term imposed on Count[] 1 [residential burglary]. The prosecutor sought imposition of consecutive sentences, arguing that concurrent terms would ignor[e] the fact that the defendant inflicted serious bodily injury upon Ms. Williams, an essentially defenseless, helpless victim. Concurrent sentences also would fail to take into account the fact that the defendant harbored multiple criminal intents during his crime spree. . . . Concurrent terms would in effect ignore the manifold ways in which this defendant victimized Ms. Williams above and beyond the physical transgression into her home. [] . . . He simply does not deserve the indulgence that concurrent sentences on Counts 1 and 5 would afford him. Only consecutive sentences on [those counts] will allow the defendant to feel the onus of those well-deserved consequences. The law allows for it, and this court should impose it.

At the sentencing hearing, the trial court began by indicating that its tentative ruling was substantially the same as the recommendation of the People. The judge selected the upper term on count 1 (the burglary conviction). It cited multiple factors in aggravation: [T]he crime involved great violence. The victim was particularly vulnerable. The defendant has engaged in [a] pattern of violent conduct, which indicates serious danger to society. The defendants prior convictions as an adult are numerous. And the defendant has served prior prison terms and the defendants performance on parole has been unsatisfactory.[8] In regard to count 5 (battery with serious bodily injury), the court stated that pursuant to People v. Lawrence, supra, 24 Cal.4th 219, it would exercise its discretion to order that sentence to run consecutively with the sentence imposed for count 1.[9] When the court asked if either party wished to present argument, defense counsel stated: No, Your Honor. It was our intent to submit on the written points and authorities.

3. Discussion

Defendant raises two claims of error in regard to the imposition of the consecutive sentences on counts 1 and 5.

First, relying upon Cunningham v. California (2007) 549 U.S.___ [166 L.Ed.2d 856, 127 S.Ct. 856] he urges that the trial court violated the state and federal constitutions when it imposed consecutive sentences based upon factors not found true by a jury. (Capitalization and boldface omitted.) The contention lacks merit. The trial courts determination whether two or more sentences should be served consecutively is a decision to be made by the court and does not implicate a defendants right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 820-823.)

Second, defendant urges that the trial court erred in failing to state reasons for imposing consecutive terms and that it abused its discretion in imposing the consecutive sentence on count 5. Defendant therefore requests a remand for resentencing. He argues: By not giving specific reasons for imposing the consecutive term, it is somewhat difficult to know what the trial court was thinking. He claims that [u]nder the unique circumstances of this case, it is reasonably probable that the trial court, upon full consideration of his sentencing discretion and the relevant factors to be applied in exercising that discretion, would impose the sentence on count 5 concurrent rather than consecutive. These arguments have been forfeited because at the sentencing hearing, defense counsel made no objections to the imposition of consecutive sentences. (People v. Scott (1994) 9 Cal.4th 331, 353-356.)

Anticipating this forfeiture analysis, defendant urges that defense counsels failure to present these objections below resulted in constitutionally deficient representation.[10]The argument is not persuasive. To prevail upon a claim of ineffective representation, a defendant must establish two facts. The first is that counsels performance was deficient under an objective standard. The second is that he was prejudiced, e.g., there is a reasonable probability that but for the alleged failing, there would have been a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 686.) Defendant focuses solely on the first element, urging there is no rational purpose for any failure of his [trial] counsel. That is not necessarily so[11]but we need not decide that point. If it is easier to resolve an ineffectiveness claim on the ground on the lack of sufficient prejudice, a reviewing court should do so. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

A defendant must prove prejudice that is a demonstrable reality, not simply speculation. [Citations.] Prejudice requires a reasonable probability that a more favorable outcome would have resulted . . . , i.e., a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Fairbank, supra, 16 Cal.4th at p. 1241.) Here, defendant cannot show prejudice from trial counsels failure either to object to imposition of consecutive sentences or to request a statement of reasons for that sentencing choice.

Any circumstance in aggravation may be considered in deciding to impose consecutive rather than concurrent sentences. (Cal. Rules of Court, rule 4.425(b).) Here, the trial court set forth five aggravating factors to warrant imposition on the upper term on count 1, some relating to the crime and some relating to defendant. All were appropriate criteria (Cal. Rules of Court, rule 4.421.) However, only one aggravating factor is required to impose the upper term.[12] (People v. Osband (1996) 13 Cal.4th 622, 728.) Any one of the other factors would have been sufficient to choose consecutive sentences. Given the facts in this case, defendants long criminal history, the complete absence of any mitigating factors, and the trial courts observations at the Romero hearing (fn. 6, ante), it is not reasonably probable that had trial counsel objected, the court would have been unable to provide sufficient reasons for consecutive sentences or that it would have imposed concurrent sentences. [Citation.] (People v. Alvarado (2001) 87 Cal.App.4th 178, 194-195; accord: People v. Sanchez (1994) 23 Cal.App.4th 1680, 1688.) In sum, defendant suffered no prejudice as a result of trial counsels alleged ineffective assistance. We therefore reject defendants appellate claim that trial counsels performance at the sentencing hearing was constitutionally deficient.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] Defendant had previously been represented by other members of the Office of the Los Angeles County Public Defender.

[3] Dr. Fairbanks used the term mildly retarded to refer to the lowest level of retardation. The increasing levels of retardation are moderate, severe and profound.

[4] CAST-MR is an acronym for Competence Assessment for Standing Trial for Defendants with Mental Retardation.

[5] Defendant claims that [t]he prosecution was invited to have their own expert testify on the issues but failed to present any such expert. Not so. Pursuant to the prosecutors request, Dr. Kerbel appeared at the hearing. In an offer of proof, the prosecutor explained that he intended to have Dr. Kerbel testify to rebut Dr. Fairbanks assertion that during the 2004 examination of defendant at Patton State Hospital, he (Dr. Kerbel) had not considered the possibility that defendant was mentally retarded. However, after the trial court indicated that the defense evidence had failed to raise even a serious doubt about the validity of the prior finding of competency, the prosecutor elected not to call Dr. Kerbel as a witness. In other words, the prosecution was prepared to offer evidence but declined to do so only after the court indicated such proof was not necessary.

[6] In post-verdict proceedings, defendant moved, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike many of the convictions alleged under the Three Strikes law. The motion relied primarily upon defendants claim of a developmental disability. A different judge than the one who had denied the second request for a competency hearing heard the motion. He canvassed defendants lengthy criminal history, noting that time and time again, members of the public have been subjected to this terror that the defendant has inflicted upon them. The court characterized defendant as the poster child for the Three Strikes [law], concluded that this case fits on all fours with what was envisioned in [the] Three Strikes law, and therefore denied the motion to strike. Defendant does not challenge that ruling on appeal.

[7] We note that it is highly improbable that all of the examiners who participated in the eight diagnoses made of defendant in either state prison or state hospital during the period of 1989 to 2004 neglected to consider the possibility of mental retardation.

[8] The trial court also used these facts to impose the upper term on count 2 (residential robbery), a sentence it ordered to run concurrently.

[9] The aggregate sentence on count 1 was 42 years to life and on count 5 is 40 years to life.

[10] Defendants reply brief expressly concedes that the issue has been waived on appeal.

[11] Trial counsels failure to object was not necessarily unreasonable. Whether consecutive or concurrent sentences should be imposed was an issue which had already been addressed by the parties sentencing memoranda, a fact defendants appellate briefs neglect to mention. At the outset of the hearing, the trial court indicated its intent to follow the prosecutors sentencing recommendation. Multiple factors supported both the imposition of the upper term on count 1 and the decision to impose consecutive sentences on counts 1 and 5. (Rules 4.421 [criteria to impose the upper term] 4.425 [criteria to impose consecutive sentences], Cal. Rules of Court.) Arguably, defense counsel could have rationally concluded that nothing would have been gained by further pursuing the matter. Trial counsel is not required to indulge in idle acts to appear competent. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)

[12] The trial court could select the upper term based upon any one factor relating to defendants criminal history without violating the constitutional right to a jury trial. (People v. Black, supra, 41 Cal.4th at pp. 818-820.)