People v. Feinga CA3, C086735

Ofa Ki Feinga was convicted by a jury of assault with a deadly weapon (Pen. Code § 245(a)(1)) and a true great-bodily-injury enhancement (§ 12022.7(a)); he was sentenced to 3 years plus a 3-year enhancement.
At trial a 10-year-old (Nancy) and grandmother (Erma) witnessed parts of the assault; Nancy gave inconsistent testimony about whether she actually saw the blow, but said she saw Feinga’s maroon SUV and later told her grandmother he had hit her father.
The defense moved to strike Nancy’s testimony as inherently improbable and hearsay; the trial court denied the motion, finding her inconsistencies went to weight not admissibility and noting her obvious fear while testifying.
Physical evidence and other witnesses corroborated an assault with a broken sledgehammer found near defendant’s outbuilding; the jury convicted.
After judgment, defendant sought remand for potential mental-health diversion under Penal Code § 1001.36, pointing to a diagnosis of schizophrenia.
The Court of Appeal held § 1001.36 is retroactive under People v. Frahs and conditionally remanded for a § 1001.36 eligibility hearing; the denial of the motion to strike was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility / motion to strike child witness testimony	Nancy’s testimony was admissible; inconsistencies go to weight; other evidence corroborates assault	Nancy’s testimony was inherently improbable and derived from inadmissible hearsay, so it should be struck	Court affirmed: testimony was not inherently impossible or hearsay on its face; contradictions were for the jury to weigh
Mental-health diversion (§ 1001.36) retroactivity and remand	§ 1001.36 should not apply retroactively to already-adjudicated cases	§ 1001.36 is ameliorative and applies retroactively; defendant may be entitled to remand for eligibility determination	Court held § 1001.36 is retroactive per People v. Frahs and conditionally remanded for an eligibility hearing

People v. Frahs, 9 Cal.5th 618 (held Penal Code § 1001.36 applies retroactively; limited remand for diversion eligibility)
In re Estrada, 63 Cal.2d 740 (presumption that ameliorative criminal laws apply retroactively)
People v. Superior Court (Lara), 4 Cal.5th 299 (discusses Estrada presumption and ameliorative statutes)
People v. Thompson, 49 Cal.4th 79 (standard of review for evidentiary rulings)
People v. Maury, 30 Cal.4th 342 (credibility determinations are for the trier of fact)
People v. Knighton, 250 Cal.App.2d 221 (definition of "inherently improbable" evidence)
People v. Carpenter, 136 Cal.App.2d 726 (evidence inherently improbable when physically impossible)
Pfingsten v. Westenhaver, 39 Cal.2d 12 (where record does not clearly show hearsay, court may decline to strike testimony)
People v. Lang, 11 Cal.3d 134 (discussed appellate counsel and impossibility claims; not dispositive here)
United States v. Chancey, 715 F.2d 543 (11th Cir.) (example where single incredible witness was insufficient; nonbinding here)