The opinion
Filed 3/24/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303013
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095974)
v.
MARCO MOINE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, George F. Bird, Judge. Reversed and remanded
with directions.
Michael C. Sampson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
*Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of parts B and C of the Discussion.
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
A jury convicted Marco Moine of two counts of making
criminal threats in violation of Penal Code section 422,
subdivision (a).1 The trial court suspended imposition of
sentence and placed Moine on probation for five years.
Prior to trial, Moine sought mental health diversion under
sections 1001.35 and 1001.36, citing his diagnoses of Bipolar I
disorder and attention-deficit/hyperactivity disorder (ADHD).
The trial court denied the request for diversion, finding Moine
posed an unreasonable risk of danger to public safety. During
the subsequent jury trial, the court excluded testimony by
Moine’s court-appointed psychiatrist concerning Moine’s mental
health disorder.
On appeal, Moine argues his conviction must be reversed,
claiming the denial of mental health diversion and the wholesale
exclusion of the psychiatrist’s testimony was erroneous and
prejudicial. Moine also argues the trial court erred in joining two
unrelated charges, and the length of his probation must be
reduced given the recent amendments to section 1203.1.
In the published portion of this opinion, we hold that the
trial court abused its discretion in finding that Moine posed an
unreasonable risk of danger to public safety. We reverse and
remand the matter with instructions for the trial court to conduct
a new hearing to consider Moine’s eligibility for mental health
1Subsequent statutory references are to the Penal Code,
unless otherwise specified.
2
diversion. In the event he is again found ineligible for diversion,
the trial court may conduct a new trial on the criminal threats
charges.
In the unpublished portion of the opinion, we conclude the
trial court erred in excluding the psychiatrist’s testimony, and
the error was prejudicial, warranting reversal of Moine’s
conviction for making criminal threats. We do not reach Moine’s
other arguments.
FACTUAL AND PROCEDURAL SUMMARY
The People charged Moine with three counts of assault (the
assault counts) and two counts of making criminal threats (the
criminal threat counts) for two separate incidents occurring in
the offices of two different medical care providers.
The first incident involved a fist-fight that took place in the
waiting room of an urgent care facility in Palos Verdes on
April 20, 2017. On that day, while Moine was in the waiting
room, he asked a staff member at the front desk to turn off the
television. Another patient confronted Moine about his request,
and they entered into a fist fight. They each landed blows upon
the other. At trial, they each presented conflicting testimony
about who initiated the confrontation and who was more
aggressive.
The second incident took place nearly a year later in
another medical provider’s waiting room. On March 12, 2018,
Moine sought medical care at an urgent care clinic in Loma
Linda, hoping to secure a refill of his medications. After Moine
saw the physician’s assistant, an office manager escorted Moine
from the treatment room and handed him his prescription.
Moine became upset that a referral to a psychiatrist had not been
3
approved, and he questioned the office manager about the
medication he had been prescribed.
As Moine left the medical office with his mother, the office
manager heard him say something “along the lines of, ‘This is
America. I can go home and get my gun and come back and shoot
all of you.’ ” The officer manager explained that over the course
of a five-minute period, Moine made several other statements,
which she described as “ranting,” and he was cursing, pacing, and
“talking with his hands up in the air” as he spoke.
A nurse who was at the front desk testified that Moine was
visibly upset. She did not “remember exactly” the words Moine
spoke, but recalled him saying “If I didn’t get—they are lucky—
they are lucky I don’t have my gun with me, otherwise I would
kill everybody here.” He continued, “I am going to come in and
kill everybody here.” On cross examination, she agreed he also
used the phrase, “If I had a gun.”2
Moine testified that he became upset because the office
manager handed him a prescription for a medication he had not
been prescribed before. He was concerned because he “didn’t
understand [the medication]’s side effects.” When he asked the
office manager about the prescription, “she dismissed [his]
concerns entirely,” retorting, “Oh, so you went to medical school.”
Moine was “shocked” by this behavior, and responded, “If the
Parkland guy came in here, would you have been condescending
to him, too?”3 He continued by noting there were 30,000 gun
2 There is no evidence in the record that Moine owned,
possessed, or had access to any guns or firearms.
3 As explained by the prosecutor in closing argument, the
Parkland shooting was a mass shooting incident in which 17
young people were killed.
4
deaths in America every year and that “she was blowing caution
to the wind by mocking someone who had just told her he
struggles with mental health issues.”4 He cautioned her “against
being rude to strangers” because it was possible people could
“respond violently.” He then realized that he “had made a major
error in trying to explain [him]self and [he] immediately
apologized.”
Moine’s mother was present at the medical clinic that day,
and she testified that she heard Moine say, “If I were the sort of
person who had a gun, I would come back and shoot you.” But
she emphasized that Moine “immediately” apologized, and did so
“profusely.”
After he left with his mother, Moine returned to the office
about 20 minutes later to search for his identification card, which
he had misplaced. Moine was arrested three weeks later and told
law enforcement officers that he did not threaten anyone.
The People charged Moine for both incidents in an
amended information, charging him with two felony counts for
assault and battery and one misdemeanor count for battery for
the first incident (§ 245, subd. (a)(4), count 1; §§ 242, 243,
subd. (d), count 2; and § 242, count 3), and two felony counts of
making criminal threats for the second incident (§ 422, subd. (a),
counts 4 & 5).
The jury found Moine not guilty of the assault charges
involving the first incident. They found him guilty of making
4 As we explain below, the trial court sustained the
prosecution’s objection and excluded expert testimony concerning
Moine’s mental health disorder. As a result, Moine’s references
to his mental health in his statements to the office manager were
the only evidence the jury received about his disorder.
5
criminal threats at the second facility, as charged in counts 4 and
5.
At the sentencing hearing on November 19, 2019, the trial
court suspended imposition of sentence and placed Moine on
probation for five years.
Moine timely appealed.
DISCUSSION
A. Mental Health Diversion
1. Factual Background
Moine filed a pre-trial motion seeking mental health
diversion under section 1001.36. His motion attached a medical
report by a court-appointed psychiatrist, Joel P. Leifer, MSW,
Ph.D.
Dr. Leifer diagnosed Moine as suffering from Bipolar I and
ADHD, which are recognized mental disorders. (See Diagnostic
and Statistical Manual of Mental Disorders (5th ed. 2013) Bipolar
and Related Disorders; id. at Disruptive, Impulse-Control, and
Conduct Disorders.) In reference to Moine’s report about the
second incident involving the criminal threats charges, Dr. Leifer
noted that “[a]t the time of this offense, . . . Moine had been
experiencing an exacerbation of his manic symptoms and was
desperate for mitigation of these symptoms.”
Dr. Leifer opined that both of the alleged “crimes have
occurred in the course of the emergence of [Moine’s] severe manic
symptoms, and/or in his attempt to manage them.” The report
concluded Moine “has never been adequately diagnosed, treated,
or psychiatrically stabilized on any effective medication regimen.”
Referencing a forensic assessment dated February 17, 2019, by
another psychiatrist, Dr. Knapke, under Evidence Code section
6
730, Dr. Leifer noted that “[b]oth Dr. Knapke and I concur that
[Moine] is at low risk for future assault.”
The People filed written opposition to mental health
diversion, arguing that Moine would pose an unreasonable risk of
danger to public safety if he were treated in the community. The
opposition did not include an analysis of the term “unreasonable
risk of danger to public safety,” as defined in section 1001.36,
subdivision (b)(1)(F).
The trial court announced its ruling at a brief hearing on
October 9, 2019, noting that it had read the papers and
considered argument by counsel. The court denied the request
for diversion. In reaching its decision, the court stated it
assumed the facts alleged with respect to the two underlying
incidents to be true. Based on the fact that Moine was present at
two mental health facilities and “engaged in acts of violence”
against others who were present, his conduct demonstrated that
he posed “a danger to the public and releasing him into a pretrial
status where he would be working on diversion is contrary to
public safety.” (See § 1001.36, subd. (b)(1)(F).)
We note that immediately following this ruling, the court
confirmed that Moine remained out of custody and on bail, a
status he had enjoyed since at least the time of the preliminary
hearing on the assault charges on June 9, 2017.
2. Legal Framework
Effective June 27, 2018, the Legislature created a diversion
program for defendants with diagnosed mental disorders. (See
§ 1001.36, subd. (a).)5 The purpose of the statute is twofold: (1) to
5 Section 1001.36 was amended effective January 1, 2019,
to specify that defendants charged with certain crimes, such as
7
increase “diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system”; and (2) to provide “diversion that meets the
unique mental health treatment and support needs of individuals
with mental disorders.” (§ 1001.35, subds. (a) and (c).)
“ ‘[P]retrial diversion’ means the postponement of
prosecution, either temporarily or permanently, at any point in
the judicial process from the point at which the accused is
charged until adjudication, to allow the defendant to undergo
mental health treatment . . . .” (§ 1001.36, subd. (c).)
A trial court may grant pretrial diversion under section
1001.36 if the court finds: (1) the defendant suffers from a
qualifying mental disorder; (2) the mental disorder was a
“significant factor” in the commission of the charged offense; (3) a
qualified mental health expert opines the defendant’s symptoms
will respond to treatment; (4) the defendant consents to diversion
and waives his or her speedy trial rights; (5) the defendant agrees
to comply with the treatment as a condition of diversion; and
(6) “the defendant will not pose an unreasonable risk of danger to
public safety, as defined in Section 1170.18, if treated in the
community.” (§ 1001.36, subd. (b)(1)(A)-(F).)
If the trial court grants pretrial diversion and the
defendant performs “satisfactorily in diversion, at the end of the
period of diversion, the court shall dismiss the defendant’s
murder and rape, are “categorically ineligible for diversion.”
(People v. Frahs (2020) 9 Cal.5th 618, 640, citing § 1001.36,
subd. (b)(2), added by Stats. 2018, ch. 1005, § 1.) The statute also
was the subject of technical, nonsubstantive amendments that
became effective January 1, 2020. (Stats. 2019, ch. 497, § 203.)
Those amendments are not at issue in the present case.
8
criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion.” (§ 1001.36,
subd. (e).) If the defendant does not perform satisfactorily in
diversion, becomes gravely disabled, or commits new crimes, the
court may reinstate criminal proceedings. (§ 1001.36, subd. (d).)
3. Standard of Review
The standard of review on appeal from a trial court’s denial
of mental health diversion is not settled. We conclude an abuse
of discretion standard applies for the following reasons.
First, in delineating the trial court’s authority by use of the
word “may,” the statutory language itself indicates the trial court
has broad discretion to grant or deny diversion. (See § 1001.36,
subd. (a) [“the court may” grant pretrial diversion], subd. (b)(1)
[“[p]retrial diversion may be granted” if certain criteria are met];
People v. Lockwood (1998) 66 Cal.App.4th 222, 227 [because “the
word ‘may’ connotes a permissive standard,” an appellate court
reviews a claim of error under a statute using the term “may” for
abuse of discretion].) Second, the statute requires the court to
consider and balance six factors, as set forth above, and provides
that the court also “may consider . . . any other factors that the
court deems appropriate.” (§ 1001.36, subd. (b)(1)(F).) Third, the
statute signals deference to the trial court’s review of three of the
six criteria by authorizing diversion if “[t]he court is satisfied” the
defendant suffers from a qualifying mental disorder, the disorder
was a significant factor in the commission of the crime, and the
defendant will not pose an unreasonable risk of danger to public
safety. (§ 1001.36, subd. (b)(1)(A), (B), & (F).)
Finally, by requiring the trial court to evaluate the “risk”
posed to public safety, the statutory language directs the court to
perform a quintessential discretionary function. (See People v.
9
Frahs, supra, 9 Cal.5th at p. 639 [noting that “the Legislature left
it to trial courts to make fact-specific evaluations of risk under
[§] 1001.36, [subd.] (b)(1)(F)].) Analyzing similar language
requiring consideration of “dangerousness” in section 1170.18,
subdivision (b), Courts of Appeal have applied the abuse of
discretion standard.6 (People v. Jefferson (2016) 1 Cal.App.5th
235, 242; People v. Hall (2016) 247 Cal.App.4th 1255, 1264.)
Because section 1001.36’s dangerousness prong references section
1170.18, and requires that the court be “satisfied” the defendant
will not pose an unreasonable risk of danger, we conclude that
same standard applies to review of a dangerousness finding
under section 1001.36.
A court abuses its discretion when it makes an arbitrary or
capricious decision by applying the wrong legal standard (People
v. Knoller (2007) 41 Cal.4th 139, 156; People v. Hall, supra, 247
Cal.App.4th at p. 1264), or bases its decision on express or
implied factual findings that are not supported by substantial
evidence (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1055).
4. The Trial Court Abused its Discretion in Finding
Diversion Would Pose an Unreasonable Risk of
Danger to Public Safety
As an initial matter, we observe that one of Moine’s mental
disorders, bipolar disorder, is a mental disorder that facially
qualifies for mental health diversion. Section 1001.36,
6 Pursuant to Proposition 47, section 1170.18 authorizes
persons convicted of certain felonies to petition for resentencing,
unless the court “determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety.”
(§ 1170.18, subd. (b).)
10
subdivision (b)(1)(A) defines a qualifying mental disorder as one
that is “identified in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders, including, but not limited
to, bipolar disorder, schizophrenia, schizoaffective disorder, or
post-traumatic stress disorder, but excluding antisocial
personality disorder, borderline personality disorder, and
pedophilia.”
The trial court denied diversion solely on the ground that
Moine was too dangerous to be treated in the community. Thus,
the focus of our inquiry is on this sixth factor. Section 1001.36’s
definition of “unreasonable risk of danger to public safety” is
supplied by reference to section 1170.18. (§ 1001.36, subd.
(b)(1)(F) [the trial court must be “satisfied that the defendant will
not pose an unreasonable risk of danger to public safety, as
defined in [§] 1170.18”].) Section 1170.18, in turn, defines
“unreasonable risk of danger to public safety” as “an
unreasonable risk that the petitioner will commit a new violent
felony within the meaning of clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667.” (§ 1170.18,
subd. (c).) The violent felonies encompassed in this definition
“are known as ‘super strikes’ and include murder, attempted
murder, solicitation to commit murder, assault with a machine
gun on a police officer, possession of a weapon of mass
destruction, and any serious or violent felony punishable by
death or life imprisonment.” (People v. Jefferson, supra, 1
Cal.App.5th at p. 242.) They also include sexually violent
offenses and sexual offenses committed against minors under the
age of 14. (See § 667, subd. (e)(2)(C)(iv).)
Section 1001.36’s reliance on the definition of
dangerousness in section 1170.18, necessarily encompasses the
11
list of super strike offenses found at section 667, subdivision
(e)(2)(C)(iv). By requiring an assessment of whether the
defendant “will commit a new violent felony” within the meaning
of section 667, subdivision (e)(2)(C)(iv), a trial court necessarily
must find the defendant is “likely to commit a super-strike
offense.” (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310
[reviewing a dangerousness finding under § 1170.18].) Thus, the
risk of danger is narrowly confined to the likelihood the
defendant will commit a limited subset of violent felonies. (See
ibid.)
In determining the risk of danger, section 1001.36
contemplates the trial court will consider the opinions of the
district attorney, the defense, and qualified mental health
experts, as well as the defendant’s violence and criminal history,
the current charged offenses, and any other factors the court
deems appropriate. (§ 1001.36, subd. (b)(1)(F).)
As discussed above, Dr. Leifer and Dr. Knapke found that
Moine posed “a low risk for future assault.” In addition to the
two pending matters involving felony charges of assault and
making criminal threats, Moine also had a pending misdemeanor
charge of resisting an officer in violation of section 148, resulting
from his refusal to comply with officers’ commands in responding
to a report of a possible overdose. He also faced a misdemeanor
charge of petty theft in violation of sections 484 and 490.2, for
stealing medical supplies.
There is no indication whether the trial court was provided
a record of Moine’s prior criminal history in reaching its decision
to deny diversion. Nonetheless, we note that the probation
officer’s report indicates Moine had four prior misdemeanor
12
convictions, three for drug or alcohol related offenses and one for
hit and run.7
None of Moine’s past convictions involved a violent felony,
let alone a super-strike felony. (See § 667, subd. (e)(2)(C)(iv).)
The pending charges, while involving allegations of violence and
threats of violence, are not super-strike offenses. There is
nothing in the record to indicate the prosecution presented
evidence to suggest Moine was likely to commit such an offense in
the future, and the circumstances of the pending charges did not
support such an inference. To the contrary, two psychiatrists
determined that he posed a low risk for future assault.
In contrast to the present case, Courts of Appeal have
affirmed denials of resentencing under section 1170.18’s
“dangerousness” prong where the petitioners had long criminal
histories involving violent felonies. In People v. Hall, supra, 247
Cal.App.4th at pp. 1265-1266, the defendant had a history of
felony convictions that spanned “nearly two decades,” including
two prior strike convictions for robbery. In addition, he had
served time in prison for three different convictions, and he had
pressed a knife to the victim’s stomach in committing the most
recent offense. (Ibid.) On the basis of the length and severity of
his criminal history, the Court of Appeal held the trial court
properly found that it was reasonable to infer the defendant
posed a risk of “using deadly force.” (Id. at p. 1266; see also
7 The convictions were as follows: (1) 2009 driving under
the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a));
(2) 2014 hit and run (Veh. Code, § 20002); (3) 2016 possession of
drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a));
and (4) 2016 possession of a controlled substance without a
prescription (Health & Saf. Code, § 11375, subd. (b)(2)).
13
People v. Jefferson, supra, 1 Cal.App.5th at p. 243 [affirming
denial of resentencing under § 1170.18 where the petitioner had a
history of violent felonies, including armed robbery, burglary, and
assault with a firearm].) These are clearly not the facts before
us.
Given the high standard applicable to a finding of
“dangerousness” under sections 1001.36 and 1170.18, the opinion
by two psychiatrists that Moine posed a low risk of committing
assault, his misdemeanor criminal history, and the circumstances
of the pending charges, the record does not support the trial
court’s implied finding that Moine was likely to commit a super-
strike offense if he received mental health treatment in the
community. (See, e.g., People v. Hoffman, supra, 241 Cal.App.4th
at p. 1310 [concluding that the record did not support a finding of
dangerousness under § 1170.18 where the petitioner’s seven
felony convictions for grand theft were not super-strike offenses,
and she had no prior criminal history].)
Our conclusion is further supported by the trial court’s
decision to release Moine into the community on bond for a period
of over two years, which indicates the court necessarily found
that Moine was not likely to cause “great bodily harm to others” if
released. (Cal. Const., art. I. § 12, subds. (b) & (c).) It is logically
inconsistent to deny mental health diversion on the ground that
Moine was likely to commit a super-strike offense, while
simultaneously finding he was not likely to inflict great bodily
injury on persons in the community.
Insofar as the respondent contends that Moine cannot be
safely treated in a mental health facility because his current
offenses were committed in similar facilities, the argument is not
pertinent to the question of whether Moine posed an
14
unreasonable risk of danger as defined in section 1170.18. It may
be a consideration that is ripe for exploration on remand. (See
§ 1001.36, subd. (c) [the court must be “satisfied” the
recommended treatment program “will meet the specialized
mental health treatment needs of the defendant”].)
We emphasize that our decision is limited to consideration
of the risk of danger, which is only one of the criteria set forth in
section 1001.36. We express no opinion on whether Moine will be
able to demonstrate eligibility for mental health diversion under
the remainder of the criteria set forth in section 1001.36.
Consistent with the remedy afforded by our Supreme Court in
Frahs, we conclude that a remand is warranted, at which the
trial court shall conduct a new hearing to consider Moine’s
eligibility for diversion. (People v. Frahs, supra, 9 Cal.5th at
p. 640 [fashioning a remedy in the form of a conditional remand
for further consideration of the defendant’s eligibility for mental
health diversion under § 1001.36].)
B. Right to Present a Defense
Following the denial of mental health diversion, the case
was transferred to a different department for trial. Moine
contends the trial court abused its discretion and violated his
federal constitutional right to present a defense by excluding
testimony by Dr. Leifer. (See Washington v. Texas (1967) 388
U.S. 14, 19 [87 S.Ct. 1920, 18 L.Ed.2d 1019]; People v. Marshall
(1996) 13 Cal.4th 799, 836 [“a criminal defendant is
constitutionally entitled to present all relevant evidence of
significant probative value in his favor”].) We agree.
1. Factual Background
We describe in some detail the various hearings in which
the trial court considered the admissibility of Dr. Leifer’s
15
testimony, to convey the lengths the trial court went through to
gain an understanding of the scope of the proffered testimony.
While we highlight the portions of defense counsel’s arguments
that were supported by the law, we also acknowledge that at
times, defense counsel had difficulty articulating his position, and
he sometimes made contradictory statements that stymied the
discussion.
Prior to trial, the People moved in limine to exclude all
testimony by Dr. Leifer, citing sections 28 and 29. During a
pretrial hearing, the trial court asked defense counsel to explain
how Dr. Leifer’s testimony would be relevant to Moine’s specific
intent to commit the charged crime. Defense counsel explained
that Dr. Leifer would testify that Moine suffered from bipolar
disorder, ADHD, anxiety, and general depression, which was
relevant to whether he had acted with specific intent, and would
explain his demeanor and behavior. In the course of further
argument, the court cautioned that pursuant to section 29, Dr.
Leifer could not testify that Moine lacked the specific intent to
commit the charged crime.
During a further pretrial hearing, defense counsel agreed
Dr. Leifer could not testify about Moine’s specific intent to
commit the offense. In support of his position, he offered
citations to People v. Coddington (2000) 23 Cal.4th 529, overruled
on other grounds in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, footnote 13, and People v. Cortes (2011) 192
Cal.App.4th 873 (Cortes), as well as CALCRIM No. 3428.8 The
trial court reviewed CALCRIM No. 3428 and concluded Dr.
8 We discuss Cortes and CALCRIM No. 3428 in detail
below.
16
Leifer’s testimony should be precluded as to the assault charges
because they were general intent crimes. Defense counsel
countered that the testimony was admissible with respect to the
criminal threats charges because they involved a specific intent
crime. Not persuaded that Dr. Leifer’s proffered testimony would
be relevant, the trial court agreed to conduct an Evidence Code
section 402 hearing to consider the matter further.
At the start of the Evidence Code section 402 hearing,
defense counsel requested that it be conducted in camera outside
the presence of the prosecutor, explaining that he did not want to
reveal the defense case. The trial court explained this would not
be possible, and took the opportunity to inquire again about the
relevance of Dr. Leifer’s testimony. The court stated that it
understood Dr. Leifer would testify about Moine’s mental health
conditions to explain his actions at the clinic. The court also
noted that it did not have the doctor’s report, which had been
submitted before a different judicial officer in support of Moine’s
motion for mental health diversion.
Defense counsel responded that Dr. Leifer was necessary to
support the defense to the criminal threats charges “[b]ecause
then the jury can make up their mind whether my client had the
specific intent.” He further explained that Dr. Leifer could show
that Moine’s conditions “affect[ ] his ability to process, to
communicate, [and his] nonverbal communication,” which would
“explain why [t]his crazy person rant was going on and that his
words, they were . . . meaningless.”
The trial court tentatively ruled it would exclude Dr.
Leifer’s testimony because all of defense counsel’s “responses . . .
seem to go back to, he’s ultimately—he is testifying to an
ultimate issue in the case, that is whether the defendant
17
harbored the specific intent to commit the crimes charged.” The
trial court continued the Evidence Code section 402 hearing so
that it could consider Dr. Leifer’s testimony after the prosecutor
rested her case-in-chief.
After the People rested, the court again asked defense
counsel for his offer of proof regarding Dr. Leifer’s testimony.
Counsel reiterated that Dr. Leifer would testify about Moine’s
mental health disorders and that they “affect his ability to think
clearly.” The trial court pressed counsel to explain how the
testimony would negate the element of specific intent required for
making criminal threats. Counsel explained that under
CALCRIM No. 3428, the jury would be able to consider the
psychiatrist’s testimony to determine “whether at the time of the
charged crime the defendant acted or failed to act with the intent
or mental state required for that crime.”9
The trial court found the offer of proof inadequate, quoting
section 28: “ ‘Evidence of mental impairment may not be
considered for general intent crimes.’ ” The court then asked, “Is
count 1 a general intent crime?” Defense counsel replied, “Yes,”
and the court ruled: “The expert will not be permitted to testify.
Let’s call out the jurors.” The trial court did not address the
charges for making criminal threats, and did not provide defense
counsel a further opportunity to address those counts. The
anticipated Evidence Code section 402 hearing did not proceed.
9 CALCRIM No. 3428 provides, in part: “You have heard
evidence that the defendant may have suffered from a mental
(disease[,]/ [or] defect[,]/ [or] disorder). You may consider this
evidence only for the limited purpose of deciding whether, at the
time of the charged crime, the defendant acted [or failed to act]
with the intent or mental state required for that crime.”
18
The next day, during a discussion prior to the jury’s arrival,
the trial court asked defense counsel, “With regard to the defense
witness, the doctor, is the doctor available?” Defense counsel
replied Dr. Leifer was not present because “[the court] said he is
not permitted to testify.” The trial court asked defense counsel
again why counsel believed Dr. Leifer’s testimony was relevant,
and counsel explained that once the jury “heard some evidence
that the defendant did suffer from some mental defect, then they
can consider this, only for the limited purpose” set forth in
CALCRIM No. 3428, to negate an element of making criminal
threats. The following exchange then took place:
“The Court: I am not trying to minimize your client’s
mental [health] issues, but let’s say your client was left-handed
and you wanted the jurors to know if he was left-handed. And
you are telling me that the jurors could use the fact that he is
left-handed to decide whether he had the specific intent to or not
to commit the crime, or if he had a bad day, he woke up with a
headache or a sinus infection, and his sinus infection bothered
him so much during the day that it just bothered him, and would
the jurors be able to use the sinus infection in that proffered jury
instruction to—would I allow argument that specific intent was
negated because of the defendant’s sinus infection?
“[Defense Counsel]: I don’t know if there is a jury
instructions [sic] on physical—a physical thing like that, but I am
just focusing . . . .
“The Court: In a bad mood. It was Monday, he woke up
late, a lot of stress in his life and he flunked out of AP history,
and he was fired from McDonald’s and he was just having a
really awful day. What is all of that relevant to?”
19
The trial court concluded: “The doctor will not be permitted
to testify. There is no link between the proffered testimony and
the issues in this case.” By virtue of excluding Dr. Leifer’s
testimony in its entirety, the trial court ensured that no evidence
of Moine’s mental health condition was received by the jury
(other than Moine’s own oblique reference to struggling with
“mental health issues,” as described above).
2. Legal Framework
The admission of expert testimony in criminal cases is
limited by sections 28 and 29. Section 28 prohibits “[e]vidence of
mental disease, mental defect, or mental disorder . . . to show or
negate the capacity to form any mental state, including, but not
limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused
committed the act.” Such evidence “is admissible solely on the
issue of whether or not the accused actually formed a required
specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.” (Ibid.)
Section 29 prohibits “any expert testifying about a defendant’s
mental illness, mental disorder, or mental defect” from discussing
“whether the defendant had or did not have the required mental
states . . . for the crimes charged.” That question is reserved for
the trier of fact. (Ibid.)
“Sections 28 and 29 do not preclude offering as a defense
the absence of a mental state that is an element of a charged
offense or presenting evidence in support of that defense. They
preclude only expert opinion that the element was not present.”
(People v. Coddington, supra, 23 Cal.4th at p. 583.) “ ‘Put
differently, sections 28 and 29 do not prevent the defendant from
presenting expert testimony about any psychiatric or
20
psychological diagnosis or mental condition he may have, or how
that diagnosis or condition affected him at the time of the offense,
as long as the expert does not cross the line and state an opinion
that the defendant did or did not have the intent, or malice
aforethought, or any other legal mental state required for
conviction of the specific intent crime with which he is charged.’ ”
(People v. Herrera (2016) 247 Cal.App.4th 467, 476 (Herrera),
quoting Cortes, supra, 192 Cal.App.4th at p. 908.)
3. Standard of Review
“In general, we review the trial court’s exclusion of evidence
for abuse of discretion. [Citation.] ‘But the court’s discretion is
not unlimited, especially when, as here, its exercise implicates a
party’s ability to present its case.’ [Citations.] We apply
independent review to ‘ “mixed question determinations affecting
constitutional rights.” ’ [Citation.] To the extent the trial court
bases its evidentiary ruling on a conclusion of law, such as its
conclusion here that the Evidence Code prohibits anything
related to mental state at the time of the [offense], we review its
conclusion de novo.” (Herrera, supra, 247 Cal.App.4th at p. 475.)
4. Cortes and Herrera
Moine analogizes the claimed error here to the erroneous
exclusion of psychiatric expert testimony analyzed by the Courts
of Appeal in Cortes and Herrera. We review them both to
illustrate why they are dispositive of the issues raised here.
The defendant in Cortes was charged with first degree
murder for stabbing another man to death during an altercation
at a party. (Cortes, supra, 192 Cal.App.4th at pp. 876-877.) The
defense sought to introduce testimony by a psychiatrist retained
to evaluate the defendant’s likely mental state at the time of the
killing. (Id. at p. 891.) The psychiatrist would have opined the
21
defendant entered a dissociated state at the time of the killing as
a result of a traumatic beating he experienced as a teenager. (Id.
at pp. 892-893.) The trial court precluded the psychiatrist from
testifying about “[the] defendant’s upbringing, traumatic events
in his life or their effect on his mental condition at the time of the
crime, at all.” (Id. at p. 899.) The Court of Appeal concluded this
was erroneous because “at a minimum, [the psychiatrist] should
have been permitted to testify to [the] defendant’s diagnoses . . . [,
and the] defendant’s . . . traumatic experiences as a child and/or
adolescent, inasmuch as [the] defendant’s prior traumatic
experiences informed [the psychiatrist’s] opinion, and explained
the connection between [the] defendant’s diagnoses, his mental
state and his behavior.” (Id. at p. 910).
The Court of Appeal concluded the error was prejudicial
because it “effectively eviscerated any defense [the] defendant
had to premeditated and deliberated murder,” and “prevented the
jury from properly evaluating evidence that would have been
relevant to its considerations of the self-defense, imperfect self-
defense and heat of passion instructions given . . . .” (Cortes,
supra, 192 Cal.App.4th at p. 912.) Compounding the error, the
Court of Appeal observed that “[t]he prosecutor took full
advantage of the court’s ruling in closing argument,” arguing
“that there was no alternative explanation” for the defendant’s
actions. (Ibid.)
In Herrera, the jury received evidence that the defendant
had been sexually molested as a child, sexually assaulted on two
occasions later in life, and physically assaulted by a friend when
he rebuffed the friend’s sexual advances. (Herrera, supra, 247
Cal.App.4th at pp. 471-472.) At trial on charges for murder of a
different friend, the defense presented evidence that the
22
defendant stabbed the victim after the victim made sexual
advances that triggered a flashback of the prior abuse. (Id. at
p. 473.) During trial, a psychiatrist and a psychologist testified
that the defendant had been diagnosed with posttraumatic stress
disorder (PTSD). (Id. at p. 474.) The psychologist testified
generally regarding PTSD and peritraumatic dissociative state.
(Id. at p. 475.) However, the psychologist was precluded from
giving her opinion that on the date of the murder, the defendant
was psychiatrically impaired or suffering from PTSD or
peritraumatic dissociative state. (Ibid.)
On appeal, the majority opinion by our colleagues in
Division Six reversed the judgment, concluding that the trial
court prevented the defendant from “present[ing] the critical
evidence in support of his only defense: expert testimony
explaining how his past history of trauma was likely to affect his
mental state at the time of the offense.” (Herrera, supra, 247
Cal.App.4th at p. 480.) Because the defendant admitted killing
the victim, the only issue was his mental state at the time of the
killing. (Id. at p. 478.) The court concluded the error was
prejudicial, since it undermined the only defense available to the
defendant, and allowed the prosecutor to argue there was no
explanation for the defendant’s violent reaction to the victim’s
advances. (Id. at pp. 478-480.)
5. The Trial Court Erred by Excluding Dr. Leifer’s
Testimony
Defense counsel argued that Dr. Leifer would testify that
Moine had been diagnosed with bipolar disorder, ADHD, anxiety,
and depression. This testimony would tend to show that Moine’s
verbal outburst at the second clinic was “symptomatic of his
[mental health] problems.” The testimony could be construed by
23
the jury to indicate that Moine did not make the statements
“with a criminal meaning,” thus negating the specific intent
required for making criminal threats. Defense counsel agreed
that Dr. Leifer would not state an opinion on the ultimate issue:
whether Moine did or did not actually have the mental state
required for making criminal threats, conceding that this issue
fell within the jury’s purview.10
As illuminated by Cortes and Herrera, the trial court
misapplied the law when it excluded all of Dr. Leifer’s proffered
testimony. Our Supreme Court has long held that the
“introduction of evidence of mental illness when relevant to
whether a defendant actually formed a mental state that is an
element of a charged offense” is admissible under sections 28
and 29. (People v. Coddington, supra, 23 Cal.4th at p. 582.)
Moreover, in the penultimate hearing conducted after the
prosecutor rested, the trial court indicated it was denying the
defense request to call Dr. Leifer because it erroneously believed
that Moine was only facing charges for general intent crimes.
The court’s wholesale exclusion of Dr. Leifer’s testimony was
10 We recognize that defense counsel’s explanation for his
proffer of Dr. Leifer’s testimony was, at times, poorly stated. For
instance, early in the proceedings, defense counsel explained Dr.
Leifer would “testify to the ultimate fact of intent.” Despite his
occasional misstatements, we find that defense counsel
adequately conveyed a proper basis for admission of the
statements, and find it significant that he cited the Cortes
opinion, which is dispositive of the issues raised here.
24
erroneous because the charge for making criminal threats is a
specific intent crime. (See § 422.)11
In denying the defense the opportunity to call Dr. Leifer as
a witness, the trial court applied an overly restrictive
interpretation of sections 28 and 29 that did not comport with the
statutes themselves, and was not supported by the applicable
case law. We conclude the court abused its discretion by basing
its decision on an incorrect legal standard. (People v. Knoller,
supra, 41 Cal.4th at p. 156; see Conservatorship of Bower (2016)
247 Cal.App.4th 495, 506 [“Case law is clear . . . that getting the
legal standard wrong means that a subsequent decision becomes
itself a per se abuse of discretion”].)
The respondent argues that Moine sought to admit Dr.
Leifer’s testimony for an improper purpose, i.e., to show that he
did not have the capacity to form the intent required under
section 422. This contention lacks merit.
As explained by our Supreme Court, the diminished
capacity defense was abolished by the Legislature in 1981.
11 Under section 422, the crime of making criminal threats
occurs when “[a]ny person . . . willfully threatens to commit a
crime which will result in death or great bodily injury to another
person, with the specific intent that the statement, made
verbally, in writing, or by means of an electronic communication
device, is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for
his or her immediate family’s safety . . . .” (§ 422, subd. (a).)
25
(People v. Elmore (2014) 59 Cal.4th 121, 135.) “It allowed
defendants to argue that because of mental infirmity” (id. at
p. 135), they lacked “capacity to form a required mental state,”
which was essentially equivalent to a defense of insanity. (Id. at
pp. 139-140.) Elmore teaches that “evidence challenging the
defendant’s actual formation of a mental state is admissible, but
only so long as it does not go toward a claim of legal insanity.”
(Id. at p. 142.) “[S]ection 28[, subdivision] (a) has no effect on
evidence of mental disorders that do not amount to legal
insanity. . . . All relevant evidence of mental states short of
insanity is admissible at the guilt phase under section 28[,
subdivision] (a) . . . .” (Id. at pp. 145-146.) Here, defense counsel
sought to introduce Dr. Leifer’s testimony not for the improper
purpose to show Moine could not form the requisite specific
intent, but rather for the legally permissible purpose to show he
did not act with specific intent. (See Cortes, supra, 192
Cal.App.4th at p. 908 [noting that a “defendant can call an expert
to testify that he had a mental disorder or condition . . . , as long
as that testimony tends to show that the defendant did or did not
in actuality (as opposed to capacity) have the mental state . . .
required for conviction of a specific intent crime”].)
Next, the respondent argues that Moine’s mental illness
was not relevant, stating that “simply because a defendant has a
mental illness” does not mean that mental illness is “necessarily
relevant on the issue of intent.” While this may be true as a
general proposition, the respondent does not effectively
distinguish Cortes and Herrera, which both applied the well-
established rule that where a defendant is charged with a specific
intent crime, evidence of his or her mental illness is admissible
for the purpose of negating that mental state.
26
The application of these well established rules leads us to
the same conclusion that was reached by our colleagues in Cortes
and Herrera. “ ‘The gist of [the respondent’s] complaint about Dr.
[Leifer’s] proposed testimony is that it would have given the jury
a basis to infer that [Moine] actually did not harbor [the requisite
intent for section 422], even if Dr. [Leifer] did not come out and
say that [Moine] lacked such mental states. That is exactly right.
However, such testimony is not “clearly prohibited by sections . . .
[28] and 29.” On the contrary, it is exactly the type of testimony
sections 28, 29, and the case law, permit. In all of the cited cases,
evidence was presented from which the jury could have properly
inferred, from testimony that fell short of expressing an opinion
that the defendant lacked the specific intentional state required
for the charged crime, that the defendant actually lacked such
intent. The limits placed by the trial court on Dr. [Leifer’s]
testimony were unduly restrictive and an abuse of discretion.’ ”
(Herrera, supra, 247 Cal.App.4th at p. 477, quoting Cortes, supra,
192 Cal.App.4th at p. 912.)
6. The Exclusion of Dr. Leifer’s Testimony Was
Prejudicial
Having concluded the rejection of Dr. Leifer’s testimony
was error, we must determine whether the error was prejudicial.
We apply the harmless error standard announced in People v.
Watson (1956) 46 Cal.2d 818, 836, to determine whether it is
reasonably probable the defendant would have obtained a more
favorable result in the absence of error. (Herrera, supra, 247
Cal.App.4th at p. 478.)
Here, as in Cortes and Herrera, the prosecutor took full
advantage of the absence of Dr. Leifer’s testimony. The
prosecutor’s theme in closing argument was that the evidence
27
revealed a pattern where Moine would react violently when
confronted with what he perceived as “rudeness.” She repeatedly
emphasized the significance of Moine’s physical behavior during
the second incident, linking it to specific intent with statements
such as the following: “[T]he circumstances convey the serious
intention to carry out the threat,” based on “[t]he circumstances
of him yelling, screaming, citing the [Parkland] shootings. All of
that shows that that is his intention.” The prosecutor ended her
final argument by stating: “Ladies and gentleman, [Moine],
when confronted with people who disrespect him, who are rude to
him, he reacts violently and [volatilely].”
By excluding the testimony by Dr. Leifer, the jury was left
with no explanation as to why Moine was seeking medical
treatment at the second office, and it received no evidence in
support of his defense that he lacked the specific intent to make a
criminal threat because he was suffering from the effects of a
diagnosed mental illness at the time of the second incident. The
“excluded testimony could well have offered the jury a basis to
infer an alternative explanation for” Moine’s actions, sufficient to
overcome the prosecution’s argument that he acted deliberately
in response to the rude behavior of the office staff. (Cortes, supra,
192 Cal.App.4th at p. 913; accord, Herrera, supra, 247
Cal.App.4th at pp. 478-479.)
Moreover, the evidence before the jury turned on the
accuracy of the recollection by four witnesses of the statements
made by Moine at the clinic. The officer manager, the nurse,
Moine, and his mother, each recalled a different version of the
statements. Moine and his mother disputed the content of the
statements as reported by the nurse and the office manager.
28
Their testimony indicated the statements could have been
construed as hypothetical or conditional hyperbole.
Finally, the record reveals the jury closely evaluated the
prosecution’s evidence in the criminal threats case. The jury
asked the court whether they had to agree on each element of the
charge of making criminal threats, and then asked for a complete
readback of the testimony by the office manager, the nurse, and
Moine’s mother. The jury’s question, coupled with its request for
readback, indicate that it had some difficulty arriving at a
verdict, two signposts indicating the error in excluding Dr.
Leifer’s testimony was not harmless. (See People v. Filson (1994)
22 Cal.App.4th 1841, 1852 [a request for additional instructions
showed the jury was “troubled” by the case], disapproved on
another ground in People v. Martinez (1995) 11 Cal.4th 434, 452;
People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [“Juror
questions and requests to have testimony reread are indications
the deliberations were close”].)
The record as a whole shows it is reasonably probable
Moine would have obtained a more favorable result if Dr. Leifer’s
testimony had not been excluded. Therefore, we conclude the
error was prejudicial and warrants reversal.
C. Remaining Issues
Having concluded reversal is necessary due to the exclusion
of Dr. Leifer’s testimony, we do not reach Moine’s remaining
arguments. We note that the jury’s acquittal on the 2017 assault
charges, which bars retrial on those charges, renders moot the
question of joinder of the two sets of charges. (See Cal. Const.
art. I, § 15; §§ 654 & 1151.)
29
DISPOSITION
The trial court’s judgment and the order denying mental
health diversion are reversed and the matter is remanded with
directions. On remand, the trial court shall conduct a new
hearing to consider Moine’s eligibility for mental health diversion
pursuant to section 1001.36. In the event the court determines
Moine meets the criteria for mental health diversion and grants
diversion, the court shall dismiss the charges when and if Moine
successfully completes diversion. In the event the court
determines that Moine is not eligible for diversion, or if Moine
does not successfully complete diversion, the trial court may
conduct a new trial on the charges for making criminal threats in
violation of section 422 in accordance with this opinion.
CERTIFIED FOR PARTIAL PUBLICATION
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
30