The opinion
Filed 5/27/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300167
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA464605)
v.
JESSALYN KENDY GRAHAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Laura C. Ellison, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication of the
Introduction, Facts and Procedural Background, Part IV of the
Discussion, and the Disposition.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stacy Schwartz and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
* * *
After a woman’s on-again, off-again boyfriend broke off
their relationship for good, she stabbed him in the back and the
heart. Literally. He survived the attack, and a jury convicted
her of attempted premeditated murder with enhancements for
personal use of a deadly weapon and personal infliction of great
bodily injury. On appeal, she argues that the trial court got the
jury instructions wrong, erred in not granting a midtrial
continuance, erred in not referring her for a second competency
hearing, and erred in not considering her for a pretrial diversion
program she never requested. The final issue presents a question
of statutory interpretation—namely, whether a request for
pretrial diversion under Penal Code section 1001.36 is timely if
not made prior to a jury’s adjudication of guilt. We conclude that
the statute requires a request to be made prior to the return of a
verdict and, in so holding, part ways with People v. Curry (2021)
62 Cal.App.5th 314 (Curry)), but have no occasion to go as far as
People v. Braden (2021) 63 Cal.App.5th 330, 333 (Braden)
[diversion may not be sought once trial begins]).
We conclude that her conviction should not be disturbed,
and affirm.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The relationship
From 2003 through 2013, Jessalyn Kendy Graham
(defendant) and Luke Hardman (Hardman) were in an on-again,
off-again dating relationship. When Hardman broke it off in
2013, they remained cordial: Defendant moved from the house
she shared with him to the studio unit behind the house, and
they continued to have sex on a monthly basis.
In early April 2017, Hardman told defendant he had
started dating someone else. Defendant did not take the news
well. In mid-April 2017, defendant and Hardman got into a
verbal argument that ended when defendant grabbed Hardman’s
phone, locked herself in his car, and proceeded to send text
messages from Hardman’s phone to the woman he was now
dating; in those messages, defendant—while posing as
Hardman—told his girlfriend that he “missed” defendant and
that he and the new girlfriend needed to break up because he
could not “do this anymore,” and signed off with “I’m sorry.
Goodbye.”
Upset at her intrusive conduct, Hardman told defendant
she had to “pack her things and move out” of the studio. He also
disinvited her from his upcoming graduation ceremony for his
master’s degree.
B. The incident
1. The setup
On May 6, 2017, defendant had yet to move out of the
studio unit and asked Hardman to come by that night to care for
her two cats because she said she was feeling suicidal.
3
When Hardman went to defendant’s studio unit to bring
the cats to the main house, defendant asked him to come back 30
minutes later. Toward the end of that period, she called the
nonemergency line for the local police. She told the answering
officer that she was “looking to file a domestic violence report”
because her ex-boyfriend had become “crazy” and “unstable” after
she broke up with him, and had on a previous occasion “held [her]
hostage,” “choked” her, and “injured” her. She reported being
“scared” because she had “no idea what he’s capable of.”
As Hardman returned per defendant’s request, she told the
police that he was “right outside [her] door” and hung up.
2. The attack
Because defendant had asked Hardman to return and left
her front door unlocked, Hardman entered to retrieve the cats.
After he did, defendant locked all three locks on the front door.
She then started in on him about how it “wasn’t fair” that he had
asked her not to attend his graduation.
Uninterested in retreading the issue, Hardman decided to
leave. Defendant prevented him. She blocked his exit by
blocking her front door. He “gently” pushed her aside, but she
“jumped” back into his path. He pushed her aside a second time,
and she “jumped” back into his path a second time. Then
Hardman shoved her “a lot harder,” causing her to stumble
backward but not fall, and he “bolt[ed]” for the door.
Before he could unlock the locks and leave, defendant
stabbed him in the back with an Ikea kitchen knife. They got
into a “scuffle,” where she proceeded to stab him through the
heart and slice him open along his rib cage.
Defendant then proceeded to toy with Hardman as he was
bleeding profusely. When he reached for his phone to call 911,
4
defendant took his phone from him to prevent him from calling
because, she told him, he was not hurt “that badly” and his call
would “get [her] in trouble.” Hardman then implored her to call
911, and she mocked him by pretending to call 911 without
actually doing it. As Hardman slumped to the floor from
weakness, defendant put her face in his and asked, “Oh, do you
still love me? Are you still in love with me?” When Hardman
replied, “Yes, I love you,” defendant instructed him to “give [her]
one last kiss” to “show [her] [he] love[s her].” Hardman obliged
by kissing her on the lips. Defendant then feigned a 911 call a
second time.
Hardman told defendant he could feel that his bowels were
about to release, and asked her to help him to the bathroom.
With her help, Hardman stumbled to the bathroom, but only sat
on the toilet for a moment before collapsing onto the floor. When
Hardman then begged her to “please call 911,” she finally did so.
3. Defendant’s postattack reports of violence
On the two back-to-back 911 calls she made and in a
voluntary interview with the responding officers, defendant
offered conflicting accounts of what had happened. On the 911
calls, she reported that a man who was both her “ex” and her
“fiancé” “came at her” and she had to “stab him” to protect herself
because she was afraid he would “hurt [her] again” like he did in
mid-April when he “held [her] hostage.” In the subsequent
interview, she reported that Hardman had shown up that night
wielding a green-handled knife and proceeded to strangle her.
However, police found no green-handled knife at the scene, and
defendant had no injuries except a small laceration on her right
bicep that was not a recent injury. Indeed, defendant reported
she was not in pain at all.
5
II. Procedural Background
On October 30, 2018, a grand jury indicted defendant for
attempted premeditated murder (Pen. Code, §§ 187, subd. (a),
664, subd. (a)).1 The indictment further alleged that defendant
had personally used a deadly or dangerous weapon (§ 12022,
subd. (b)(1)) and had personally inflicted great bodily injury
(§ 12022.7). The People proceeded by way of grand jury because
defendant had repeatedly refused to come to court for the
preliminary hearing.
At her second court appearance on November 26, 2018, the
trial court granted defendant’s request to represent herself. The
court appointed standby counsel.
After the trial court continued the matter several times at
defendant’s request,2 the matter proceeded to a jury trial.
Midway through the People’s case, defendant relinquished her
right of self-representation and standby counsel took over. The
court instructed the jury on the crime of attempted murder as
well as the special finding of premeditation, and on the lesser
included offense of attempted voluntary manslaughter due to
imperfect self-defense.
The jury found defendant guilty of attempted premeditated
murder and found true the weapon and great bodily injury
enhancements.
After the trial court denied defendant’s motion for a new
trial on the basis of newly discovered evidence, the trial court
sentenced defendant to prison for life with the possibility of
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The continuances are recounted in greater detail in Part
II.B of the Discussion.
6
parole plus six years (calculated as five years for the weapon
enhancement plus one year for the great bodily injury
enhancement).
Defendant filed this timely appeal.
DISCUSSION
I. Instructional Issues
Defendant argues that the trial court made two
instructional errors. We independently review the jury
instructions. (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
A. Failure to instruct on the lesser included offense
of attempted voluntary manslaughter due to heat of
passion
Defendant argues that the trial court had a sua sponte duty
to instruct the jury on the lesser included offense of attempted
voluntary manslaughter due to heat of passion.
A trial court has a duty to instruct a jury on “‘“all general
principles of law relevant to the issues raised by the evidence,”’”
including on any “‘“lesser included offenses.”’” (People v. Whalen
(2013) 56 Cal.4th 1, 68.) Attempted voluntary manslaughter due
to heat of passion is a lesser included offense to attempted
murder (People v. Speight (2014) 227 Cal.App.4th 1229, 1241
(Speight)), and rests on a finding that the defendant—both
subjectively and reasonably—committed her crime “while under
‘the actual influence of a strong passion’ induced by [the victim’s]
provocation.” (People v. Moye (2009) 47 Cal.4th 537, 550; accord,
People v. Nelson (2016) 1 Cal.5th 513, 539.) This occurs when the
defendant’s “reason ‘“‘was obscured or disturbed by passion’”’ to
so great a degree that an ordinary person would ‘“‘act rashly and
without deliberation and reflection.’”’” (People v. Vargas (2020) 9
Cal.5th 793, 828 (Vargas).)
7
We need not decide whether the trial court erred in not
instructing the jury on the lesser included offense of attempted
voluntary manslaughter due to heat of passion because its
omission was harmless beyond a reasonable doubt. “Error in
failing to instruct the jury on a lesser included offense is
harmless when the jury necessarily decides the factual questions
posed by the omitted instructions adversely to [the] defendant
under other properly given instructions.” (People v. Lewis (2001)
25 Cal.4th 610, 646.)
Here, the jury’s finding that defendant’s attempted murder
was willful, premeditated and deliberate necessarily decided that
defendant did not act under the “actual influence of a strong
passion,” and hence did not commit the crime of attempted
voluntary manslaughter due to heat of passion, thereby
rendering harmless the absence of an instruction for this crime.
The jury instruction in this case defining when an attempted
murder is willful, premeditated and deliberate (CALCRIM No.
601) states that “[a] decision to kill made rashly, impulsively, or
without careful consideration of the choice and its consequences
is not deliberate and premeditated.” This is the antithesis of
“‘“‘act[ing] rashly and without deliberation’”’” (Vargas, supra, 9
Cal.5th at p. 828.) Thus, as the weight of precedent agrees, a
jury’s finding that a murder or attempted murder was willful,
premeditated and deliberate is “manifestly inconsistent with
having acted under the heat of passion” and thus renders
harmless the failure to instruct on a lesser included offense
resting on a heat-of-passion finding. (People v. Wang (2020) 46
Cal.App.5th 1055, 1071-1072 (Wang); People v. Franklin (2018)
21 Cal.App.5th 881, 894-895 (Franklin); People v. Peau (2015)
8
236 Cal.App.4th 823, 831 (Peau); Speight, supra, 227 Cal.App.4th
at p. 1246.)
Defendant resists this conclusion with three arguments.
First, she argues that instruction at issue in Wang
(CALJIC No. 8.20) defined the terms “willful,” “deliberate” and
“premeditated” differently than the instruction at issue here
(CALCRIM No. 601) because the CALJIC No. 8.20 instruction
applicable to murder (as well as the CALJIC No. 8.67 instruction
applicable to attempted murder) explicitly use the phrase “heat of
passion” when they specify that a homicide is not “deliberat[e]
and premeditat[ed]” if the defendant formed her “intent to kill”
“under a sudden heat of passion or other condition precluding the
idea of deliberation.” (CALJIC Nos. 8.20, 8.67.) This is true, but
irrelevant: Franklin held that the CALCRIM No. 601 instruction
given in this case also renders harmless the absence of a heat-of-
passion-based lesser included offense (Franklin, supra, 21
Cal.App.5th at pp. 894-895), and, more to the point, the absence
of the words “heat of passion” from the CALCRIM No. 601
instruction does not eliminate the “manifest[] inconsisten[cy]”
between the jury’s finding under the CALCRIM No. 601
instruction that defendant did not act “rashly” or “impulsively”
and the finding of acting “rashly” that a jury would need to make
to support a conviction of attempted voluntary manslaughter due
to heat of passion.
Second, defendant argues that Wang, Franklin, Peau and
Speight are all wrongly decided. She insists that we must follow
People v. Ramirez (2010) 189 Cal.App.4th 1483, 1488 (Ramirez),
which cited our Supreme Court’s decision in People v. Berry
(1976) 18 Cal.3d 509 (Berry), for the proposition that a jury’s
determination of guilt for first degree murder based on
9
premeditation does not render harmless “the erroneous omission
of an instruction on heat of passion voluntary manslaughter.”
Because Berry is binding precedent, defendant concludes, we
must follow it and reject Wang, Franklin, Peau and Speight.
However, defendant ignores that a post-Berry Supreme Court
decision, People v. Wharton (1991) 53 Cal.3d 522, 572 (Wharton),
holds that a “state of mind, involving planning and deliberate
action, is manifestly inconsistent with having acted under the
heat of passion . . . and clearly demonstrates that defendant was
not prejudiced by the failure to give his requested instruction.”
Berry and Wharton point in different directions, and we side with
the majority of courts in concluding that Wharton applies here.
Lastly, defendant argues that following Wang and other
cases impermissibly shifts the burden of proof to her in violation
of due process. This argument is frivolous. What renders the
assumed instructional error in this case harmless is the jury’s
finding beyond a reasonable doubt that defendant acted in a
willful, deliberate and premeditated fashion. The People had the
burden of proving that allegation. That the logical implication of
that finding is that any error in not instructing on the lesser
included offense at issue here was harmless does not in any way,
shape or form shift the burden of proof, which always rested with
the People.
B. Misinstruction on the deadly weapon
enhancement
Defendant argues that the trial court erred in instructing
on the enhancement for personal use of a deadly weapon.
In pertinent part, the court instructed the jury that a
deadly or dangerous weapon is “any object, instrument, or
weapon [(1)] that is inherently deadly or dangerous or [(2)] one
10
that is used in such a way that it is capable of causing and likely
to cause death or great bodily injury.” (Italics added.) Because
the sole weapon at issue in this case was a knife, and because a
knife is not an inherently deadly weapon as a matter of law, the
People concede that the trial court erred in instructing the jury
that a knife could be an “inherently deadly or dangerous” weapon.
(People v. Aledamat (2019) 8 Cal.5th 1, 5-8 (Aledamat).)
However, this error was harmless. In Aledamat, our
Supreme Court clarified that the exact instructional error at
issue here was effectively no different than an error in
“misdescri[bing] . . . the elements” of a crime or enhancement,
and thus was subject to harmless error analysis. (Aledamat,
supra, 8 Cal.5th at pp. 9-10.) When an instruction omits or
misdescribes an element, we assess whether that error was
harmless beyond a reasonable doubt by asking whether “the
omitted [or misdescribed] element was uncontested and
supported by overwhelming evidence.” (Neder v. United States
(1999) 527 U.S 1, 17; accord, People v. Mil (2012) 53 Cal.4th 400,
409.) Here, the instructional error was harmless beyond a
reasonable doubt because defendant did not contest—and the
evidence was overwhelming—that the kitchen knife she used to
stab Hardman repeatedly was “used in such a way that it [was]
capable of causing and likely to cause death or great bodily
injury.”
Defendant makes two arguments in response. First, she
asserts that Aledamat’s resort to harmless error analysis is
inapplicable to specific intent crimes like attempted murder.
This assertion misses the mark because the error here pertained
to the enhancement for the use of a dangerous or deadly weapon,
and that enhancement requires only general intent. Second, she
11
seems to contend that the error was not harmless because she
stabbed Hardman after he pushed her away from the front door
of the studio unit. This contention also misses the mark because
defendants’ proffered justification for using the knife does not
speak to whether she used it in such a way as to cause death or
inflict great bodily injury.
II. Denial of Midtrial Continuance
Defendant argues that the trial court erred in denying her
request for a one-day continuance after the People had rested its
case and in denying her motion for a new trial asserting the same
alleged error. We review the denial of a continuance request for
an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101,
1118 (Mungia).) Where, as here, the continuance is requested in
the middle of trial, the trial court’s discretion is “‘substantial,’”
such that “‘appellate challenges’” to midtrial continuance rulings
“‘are rarely successful.’” (People v. Wilson (2005) 36 Cal.4th 309,
352, quoting People v. Seaton (2001) 26 Cal.4th 598, 660.)
A. Pertinent facts
From the time defendant exercised her right of self-
representation in November 2018 to the first day of trial on June
18, 2019, defendant requested—and was granted—several
continuances of the trial date to give her ample time to prepare
for trial.
Once trial began on June 18, 2019, defendant engaged in a
campaign of conduct designed to further postpone or to derail the
trial. On June 18, she asked for a 90-day continuance, which the
court denied.
Jury selection occupied all day June 19 and June 20, and
the morning of June 21.
12
The People began presenting its case-in-chief during the
afternoon of Friday, June 21.
The People were unable to continue their case-in-chief on
Monday, June 24 because defendant refused to leave her jail cell
that morning. The court issued an extraction order, which
prompted defendant to relent and agree to come to court.
However, she did not arrive in court until 2:50 pm. Although
defendant attributed her refusal to come to court to medical
issues, when she was transported to a medical facility after court
that afternoon, she refused to answer any questions about her
health. The court was forced to order the jury—which had been
waiting around all day—to return the next morning.
On the morning of June 25, defendant told the trial court
she no longer wished to represent herself. The court then ordered
defendant’s standby counsel to take over defendant’s
representation. Standby counsel immediately asked for a
continuance of “at least 10 days” to try to get defendant’s mental
health records from Kaiser and to subpoena a mental health
counselor defendant had consulted in April 2017. The court
denied that continuance request. The People resumed its case-in-
chief for the balance of the morning. After the People put on its
last witness in the afternoon and rested, the court recessed for
the remainder of the afternoon to give standby counsel the
opportunity to marshal whatever defense he wished to present.
On the morning of June 26, standby counsel asked for a
one-day continuance so that he could call as a witness the mental
health counselor whom defendant had consulted after defendant’s
mid-April encounter with Hardman but before the May 6
stabbing. Standby counsel proffered that the counselor would
testify that defendant had reported being the victim of domestic
13
violence in mid-April. The trial court denied the continuance on
the grounds that (1) defendant had not previously identified this
counselor as a witness when asked to list her anticipated
witnesses, and (2) the counselor’s testimony regarding domestic
violence would not be relevant “unless there’s evidence that
[defendant] is the victim of domestic violence” and defendant had
opted not to testify. Defendant called one character witness, and
then rested.
B. Analysis
A continuance in a criminal case may only be granted for
good cause. (§ 1050, subd. (e); Mungia, supra, 44 Cal.4th 1101,
1118.) When a defendant requests a continuance in the middle of
trial, she must as a threshold matter “‘show [s]he exercised due
diligence in preparing for trial.’” (People v. Fudge (1994) 7
Cal.4th 1075, 1106 (Fudge), quoting People v. Danielson (1992) 3
Cal.4th 691, 705; People v. Winbush (2017) 2 Cal.5th 402, 469-
470.) If that threshold showing is made, then the trial court
must evaluate whether good cause justifies the continuance by
examining (1) how the defendant will benefit from the
continuance, (2) the likelihood that benefit will come to pass, (3)
the burden of the requested continuance on other witnesses, the
jurors, and the court, and (4) whether the requested continuance
would further or undermine substantial justice. (People v. Panah
(2005) 35 Cal.4th 395, 423.)
The trial court did not abuse its discretion in denying
defendant’s midtrial request for one-day continuance for two
reasons.
First, defendant did not meet her burden of showing that
she had exercised due diligence in preparing for trial. During the
seven months defendant represented herself, the trial court
14
repeatedly asked her if she wished to continue representing
herself, repeatedly advised her of the importance of being
prepared for trial, and repeatedly asked defendant to identify
which witnesses she intended to call. The mental health
counselor was not one of the witnesses defendant identified, even
though defendant had consulted the counselor prior to the
charged crime and was obviously aware of her meeting with that
counselor. Although standby counsel did not evince any lack of
diligence, the trial court had repeatedly warned defendant that
standby counsel would have to “rely[] on [defendant’s] workup of
the case” should she relinquish her right of self-representation.
Defendant’s decision not to prepare for trial notwithstanding the
trial court’s prescient advisements means that defendant was
aware of the risks arising from her lack of preparation and
nevertheless chose to take them. (See Fudge, supra, 7 Cal.4th at
p. 1107 [denial of continuance appropriate where “the record
shows that defense counsel had been warned repeatedly by the
trial court to have their defense ready”].)
Second, the trial court did not abuse it discretion in
balancing the pertinent factors and concluding that defendant
had not otherwise established “good cause” for the midtrial
continuance sought by standby counsel. The counselor’s
testimony was unlikely to appreciably benefit defendant because
the jury had already heard defendant’s statements on the 911
calls as well as her pre- and postattack statements to police
claiming that Hardman had previously abused her. Evidence
that defendant had also repeated that account of events to a
counselor adds very little. Defendant urges that the counselor
would have testified that defendant showed her a bruise, but this
evidence was not shared with the trial court until defendant’s
15
new trial motion (and thus was not part of the trial court’s
calculus in denying a continuance) and also adds very little
because it is dependent upon the jury crediting defendant’s
explanation to the counselor about the source of the bruise.
There is no question that further continuing the trial would have
inconvenienced the jurors, who had already suffered through one
wasted day and one abbreviated day of trial due to defendant’s
“antics” and “delay” “tactic[s].” In light of these considerations,
delaying the trial further would have undermined—rather than
furthered—“substantial justice.”
Defendant offers two further arguments in support of her
position that denying her the continuance was error. She asserts
that no witnesses would have been inconvenienced because the
People had rested its case-in-chief by the time standby counsel
asked for the continuance, but this ignores the inconvenience to
the jurors. Defendant also contends that the counselor’s
recounting of defendant’s statements to her would have been
admissible under the rules of evidence, but that recounting—even
if admitted—would have added almost nothing to the body of
evidence already before the jury.
III. Failure to Conduct a Second Competency Trial
Defendant argues that the trial court erred in not declaring
a second doubt about her competency to stand trial. We review a
trial court’s determination of competency for substantial
evidence. (People v. Blacksher (2011) 52 Cal.4th 769, 797
(Blacksher).)
A. Pertinent facts
In late 2017 (before defendant was indicted), defendant’s
attorney raised a doubt about defendant’s competency, the trial
court declared a doubt, and defendant’s competency was
16
evaluated. The mental health court found defendant to be
competent to stand trial.
Nearly two years later, at a pretrial hearing on May 1,
2019, defendant—while representing herself—asked the trial
court if she could be sent back to the mental health court to
evaluate her competence because, in her view, the Sheriff’s
Department had said she was not competent. The court
responded that the Sheriff’s Department had not raised any
doubt about defendant’s competence; instead, the Department
had placed her on suicide watch. The court further stated that it
had “not seen one iota of anything . . . any of the times [defendant
had] come before this court to suggest that [defendant was]
incompetent.” Defendant also informed the court that she
“absolute[ly]” “fe[lt]” “competent to represent [her]self.”
In the middle of trial, after defendant had relinquished her
right of self-representation, the court asked standby counsel and
defendant whether defendant intended to testify. Standby
counsel relayed that defendant “doesn’t feel comfortable
testifying absent discussing this with a therapist.” When asked
to explain, defendant elaborated that she “would feel more
comfortable if [she] was evaluated by [a] mental psych[ologist]
before [she got] on the stand” because she “want[ed] to make sure
[she was] mentally sound, [that she was] okay, and [that she]
won’t break down” when going “through the trauma” of testifying.
B. Analysis
As a matter of due process, a criminal defendant may not
be tried or convicted while mentally incompetent. (People v.
Rodas (2018) 6 Cal.5th 219, 230 (Rodas); People v. Sattiewhite
(2014) 59 Cal.4th 446, 464 (Sattiewhite); Pate v. Robinson (1966)
383 U.S. 375, 384-386.) For these purposes, a defendant is
17
mentally incompetent if she (1) “‘“lacks a ‘“sufficient present
ability to consult with [her] lawyer with a reasonable degree of
rational understanding”’”’” of the proceedings against her, or (2)
lacks “‘“‘“a rational as well as a factual understanding of the
proceedings against [her].”’”’” (Sattiewhite, at p. 464, quoting
Dusky v. United States (1960) 362 U.S. 402, 402; Rodas, at pp.
230-231.) A trial court is required to suspend criminal
proceedings and conduct a full competency trial if substantial
evidence, even if conflicting, raises a reasonable doubt regarding
the defendant’s mental competence. (§ 1368, subds. (a) & (b);
People v. Lightsey (2012) 54 Cal.4th 668, 691; People v. Welch
(1999) 20 Cal.4th 701, 737-738.) Where, as here, a defendant has
already been found competent to stand trial after a competency
hearing, “a trial court may rely on that finding [going forward]
unless the court ‘“is presented with a substantial change of
circumstances or with new evidence” casting a serious doubt on
the validity of that finding.’” (Rodas, at p. 231 quoting People v.
Jones (1991) 53 Cal.3d 1115, 1153.) Because a defendant is
presumed to be competent, the burden rests with the defendant
to establish the requisite substantial change of circumstances or
new evidence casting a serious doubt on the prior finding of
competence. (See Blacksher, supra, 52 Cal.4th 769, 797.)
Defendant did not carry her burden. She points to two
events that, in her view, constitute a “change of circumstances or
new evidence casting a serious doubt” on her competency—(1) the
fact she was placed on suicide watch on May 1, 2019, and (2) her
request to consult with a therapist before taking the stand in her
own defense. However, neither casts a serious doubt on the
validity of the prior finding of competence. Suicidal ideation may
be enough to raise a doubt about one’s competence if it is
18
combined with other factors and if there has been no prior finding
of competency. (See People v. Rogers (2006) 39 Cal.4th 826, 848;
People v. Johnson (2019) 21 Cal.App.5th 267, 276.) But here,
there are no other factors and there was a prior finding of
competency. And defendant’s desire to consult with a therapist
to make sure she did not “break down” on the stand in view of
jury does not evince a lack of present ability to consult with her
lawyer or a lack of rational, factual understanding of the
proceedings. To the contrary, defendant’s concern about how she
might appear to the jury evaluating her fate is proof that she was
keenly aware of what was going on and what was at stake. This
concern, coupled with defendant’s ability to conduct voir dire and
cross-examine the People’s witnesses during the first half of the
trial, provided the trial court with an ample basis to conclude
that nothing had changed after the first competency hearing.
Indeed, the trial court was also well within its discretion to view
defendant’s long history of requesting multiple continuances, of
misconduct while in custody, and of feigning medical issues
during trial as part of an overall stratagem of “playing games” in
order to “delay the proceedings as long as [she] can,” a goal that
evinces—and presupposes—a full appreciation and understanding
of the events happening around her.
Defendant responds with three arguments. First, she
argues that her placement on suicide watch automatically
entitles her to a second competency hearing. As noted above, it
does not. Second, she argues that Hardman’s testimony before
the grand jury that defendant was “sort of degrading mentally”
prior to the May 2017 incident attests to her lack of competence
to stand trial. This is triply irrelevant: Hardman’s opinion is, at
most, a lay opinion; his opinion spoke to her competence in
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general, not to the particularized lack of competence to assist
counsel and understand legal proceedings; and his opinion
pertained to defendant’s mental state in early 2017—long before
the mental health court found her to be competent to stand trial.
Lastly, defendant argues that her standby counsel expressed a
doubt about her competency when he started to say “My client
advises me as far as her competency and her ability—” before the
trial court cut him off and reminded him not to relay client
confidences. Standby counsel then stated that defendant did not
“feel comfortable testifying absent discussing this with a
therapist.” Thus, standby counsel never declared a doubt; he
relayed defendant’s preference to meet with a therapist before
testifying which, as we have explained, does not constitute a
change of circumstance or new evidence casting serious doubt on
the prior finding of her competency.
IV. Diversion
Defendant argues that this matter should be remanded to
the trial court for the court to exercise its discretion under
Section 1001.36 to “grant pretrial diversion” to persons who
“suffer[] from a mental disorder” that was a “significant factor in
the commission” of the charged crime(s). (§ 1001.36, subds. (a) &
(b).) Because section 1001.36 became effective before defendant
was indicted, before she went to trial, before she was found guilty,
before sentencing and before judgment was entered by the trial
court, defendant’s argument presents the question: Is a request
for “pretrial diversion” under section 1001.36 timely when it is
made for the first time on appeal? We conclude that the answer
is “no,” and do so for two reasons.
First and foremost, we hold that a request for “pretrial
diversion” under section 1001.36 is timely only if it is made prior
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to the jury’s guilty verdict. This holding is a function of the plain
language of the statute, is consistent with its purpose and steers
clear of the likely practical consequences of a contrary reading.
Section 1001.36 explicitly defines “pretrial diversion” as
“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.” (§ 1001.36,
subd. (c), italics added.) The statute’s use of the phrase “pretrial
diversion” by itself strongly suggests a timing requirement. After
all, “pretrial” exists in contradistinction to posttrial, and “pretrial
diversion” connotes a diversion away from trial. One cannot
divert a river after the point at which it has reached the sea. (See
Braden, supra, 63 Cal.App.5th 330, 333-334 [noting that statute
uses “pretrial” “five times”].) This linguistic suggestion is
confirmed to be an outright command by the definition section
1001.36 gives to the phrase “pretrial diversion”: The definition
says that diversion must occur before “adjudication,” and
“adjudication” typically refers to an adjudication of guilt—
whether by plea by or by jury verdict. (See In re Harris (1989) 49
Cal.3d 131, 135.) The plain text of section 1001.36 is controlling.
(See Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121,
1131.)
The tripartite purposes of section 1001.36 are to (1)
“[i]ncrease[] diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety,” (2) “[a]llow[] local
discretion and flexibility for counties in the development and
implementation of diversion for individuals with mental
disorders across a continuum of care settings,” and (3) “[p]rovid[e]
diversion that meets the unique mental health treatment and
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support needs of individuals with mental disorders.” (§ 1001.35.)
These purposes are fully served by allowing defendants to seek
mental health pretrial diversion prior to adjudication of their
guilt. Although our Supreme Court has favorably cited language
from other cases indicating that our “‘Legislature intended the
mental health diversion program to apply as broadly as possible’”
(People v. Frahs (2020) 9 Cal.5th 618, 632 (Frahs), italics added),
that language does not give us warrant to ignore the language of
the statute—which is the key determinant of what is “possible.”
Were we to construe section 1001.36 to permit a defendant
to seek pretrial diversion after the adjudication of guilt or after a
plea (ostensibly, by construing the term “adjudication” to mean
“entry of judgment”), we would be inviting the inefficient use of
finite judicial resources. If a defendant knows that pretrial
diversion is available even after going to trial, why not see what
happens at trial and then, if the jury returns a guilty verdict,
seek pretrial diversion? Does a defendant receive ineffective
assistance of counsel if her lawyer does not take this approach?
This would turn trial into a “read through” by dedicating the time
and effort of judges, jurors and lawyers into a proceeding that
may become retroactively moot should pretrial diversion be
requested following a guilty verdict. (See Braden, supra, 63
Cal.App.5th at pp. 341-342.) In the absence of language
expressly mandating this result, we decline to construe section
1001.36 in such a manner. (People v. Hazle (2007) 157
Cal.App.4th 567, 573 [construing a statute to avoid “an absurd
waste of judicial resources”]; Landrum v. Superior Court (1981)
30 Cal.3d 1, 9 [same].)
Our analysis is consistent with our Supreme Court’s
decision in Frahs, supra, 9 Cal.5th 618. The question presented
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in Frahs was whether defendants who went to trial before section
1001.36 took effect could seek pretrial diversion after their guilt
was adjudicated as long as their convictions were not yet final.
The resolution of that question turned on whether the
Legislature, in enacting section 1001.36, had “‘clearly signal[ed]
its intent” to overcome the presumption erected by In re Estrada
(1965) 63 Cal.2d 740 that statutes having an ameliorative effect
in criminal cases apply retroactively to convictions that are not
yet final. (Id. at pp. 631-632.) Frahs ruled that the “until
adjudication” language in section 1001.36 did not constitute that
“clear” signaling (id. at p. 633), such that defendants whose
convictions were in the “pipeline” of direct appellate review when
section 1001.36 took effect could still take advantage of the
statute. But Frahs was careful to limit its analysis to the
availability of section 1001.36 to these “pipeline defendants,” and
to note that its holding involved a “quite different” question from
how the “statute normally will apply going forward” as to
defendants who had had the opportunity seek pretrial diversion
from the very beginning. (Id. at p. 633.)
In reaching our conclusion, however, we part ways with
Curry, supra, 62 Cal.App.5th 314. Curry held that a request for
pretrial diversion under section 1001.36 is timely as long as it is
made “before sentencing.” (Id. at pp. 325-326.) In so holding,
Curry found the holding and analysis in Frahs to be “pertinent.”
(Id. at p. 322.) As explained above and as Frahs itself was careful
to point out, Frahs answered a different question and involved a
different analysis, neither of which is at issue here. Curry
acknowledged that the term “adjudication” could be construed to
mean “prior to verdict” or “prior to sentencing” (id. at pp. 323-
324), but ruled that the term meant “prior to sentencing” because
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section 1001.36 (1) contemplates the trial court’s “‘review[]’” of
“‘any relevant and credible evidence, including, but not limited to,
police reports, preliminary hearing transcripts, witness
statements . . . or evidence that the defendant displayed
symptoms consistent with the relevant mental disorder at or near
the time of the offense’” (id. at p. 324, quoting § 1001.36, subd.
(b)(1)(B)), (2) contemplates that the trial court will “‘consider the
opinions of the district attorney, the defense, or a qualified
mental health experience, and . . . the defendant’s violence and
criminal history, the current charged offense, and any other
factors that the court deems appropriate’” (id. at p. 325, quoting §
1001.36, subd. (b)(1)(F)), and (3) empowers the trial court to
“‘require the defendant to make a prima facie showing’” of
eligibility for diversion ‘“[a]t any stage of the proceedings’” (id. at
p. 325, quoting § 1001.36, subd. (b)(3)). To us, these statutory
provisions are insufficient to countermand what we perceive as
the otherwise clear intent of the Legislature to require pretrial
diversion to be sought before a verdict. Tellingly, the evidence
that section 1001.36 spells out as appropriate for a trial court to
consider purports to enumerate many examples, all of which can
exist prior to trial and none of which arises solely at or after trial.
And the power of the court to require a prima facie showing “at
any stage of the proceedings” is necessarily limited by the scope
of the statute—which requires a request for pretrial diversion to
occur prior to a verdict. To uncouple the “any stage of the
proceedings” language from the statute’s overall scope would
allow trial courts to entertain requests while a case is up on
appeal because appeal is, in some sense, a “stage of the
proceedings.” (See Braden, supra, 63 Cal.App.5th at p. 339.)
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Because defendant’s request for diversion in this case was
made for the first time on appeal, we are able to resolve this case
by our holding that a request for diversion under section 1001.36
becomes untimely once the jury has returned a verdict. We have
no occasion to confront whether such a request is untimely “after
trial begins,” as Braden, supra, 63 Cal.App.5th at p. 335 holds.
We leave that question for another day.
Second, and alternatively, the onus is placed on the
defendant to raise the issue of diversion. Section 1001.36,
subdivision (b)(1)(A) provides, "Evidence of the defendant's
mental disorder shall be provided by the defense and shall
include a recent diagnosis by a qualified mental health expert."
By not invoking section 1001.36 for the nearly 12 months the
statute was effective before the jury returned its verdict, she has
forfeited her right to do so now. (See People v. Carmony (2004) 33
Cal.4th 367, 375-376 [failure to seek dismissal under section 1385
forfeits right to raise issue for first time on appeal]; see also
People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to
discretionary sentencing choices below forfeits right to challenge
them on appeal].)
Defendant cannot blame her counsel for either deficiency,
as she invoked her right to self-representation from her second
court appearance in November 2018 until midway through her
trial in June 2019 and had been warned that her standby counsel
would inherit the trial as she had prepared it. (People v.
Michaels (2002) 28 Cal.4th 486, 525 [“‘[A] self-represented
defendant may not claim ineffective assistance on account of
counsel’s omission to perform an act within the scope of duties
the defendant voluntarily undertook to perform personally . . .’”].)
Because there was no evidence offered at trial that defendant
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suffered from a mental illness, and it is reasonable to assume
that defense counsel was aware of a statute in effect for almost
an entire year before trial began, diversion was not appropriately
raised.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
________________________, J.
HOFFSTADT
We concur:
________________________, Acting P. J.
ASHMANN-GERST
________________________, J.
CHAVEZ
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