64 Cal.App.5th 827
Cal. Ct. App.2021Background
- Graham and Hardman had an on-again/off-again relationship; after he began dating someone else, Graham confronted him and later summoned him to her studio on May 6, 2017.
- When Hardman tried to leave, Graham stabbed him multiple times (back, through the heart, along rib cage); he survived. Graham prevented him from calling 911 and initially gave conflicting accounts to officers and on 911 calls claiming self-defense/domestic violence.
- A grand jury indicted Graham for attempted premeditated murder with special allegations for personal use of a deadly weapon and personally inflicting great bodily injury; she represented herself for much of the pretrial period, then standby counsel took over midtrial.
- At trial the court instructed on attempted murder (premeditation) and imperfect self-defense (attempted voluntary manslaughter), and the jury convicted Graham of attempted premeditated murder and found both enhancements true.
- Posttrial Graham challenged jury instructions, denial of a midtrial continuance, the court’s refusal to order a second competency hearing, and the timeliness of seeking pretrial diversion under Penal Code § 1001.36 (which she first sought on appeal).
- The Court of Appeal affirmed the judgment and held that a request for diversion under § 1001.36 must be made before adjudication (i.e., prior to a verdict); other claimed errors were rejected or found harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to instruct on lesser included offense (heat-of-passion attempted voluntary manslaughter) | No reversible error; any omission was harmless because jury found willful, deliberate, premeditated intent | Court had sua sponte duty to instruct on heat-of-passion lesser included offense | Harmless error: premeditation finding is inconsistent with heat-of-passion, so omission did not prejudice Graham |
| Misinstruction on deadly-weapon enhancement (knife characterized as "inherently deadly") | Instructional wording error conceded but harmless because evidence overwhelmingly showed knife was used in a way likely to cause death/GBI | Instruction was legally incorrect and prejudicial | Harmless error under Neder/Neder-type analysis; the misdescription concerned an uncontested element supported by overwhelming evidence |
| Denial of midtrial one-day continuance to subpoena/secure mental-health counselor testimony | Denial proper: defendant failed to show due diligence, request came too late, and delay would unduly burden jurors/court | Counsel needed time to obtain psychologist testimony about prior domestic-violence reports; continuance would aid defense | No abuse of discretion: defendant lacked due diligence and proposed testimony would likely add little; juror/court burdens weighed against continuance |
| Failure to order a second competency hearing | Prior competency finding remained valid; no substantial change/new evidence casting serious doubt (suicide watch + desire to see therapist did not suffice) | Placement on suicide watch and counsel’s statement that defendant wanted evaluation before testifying raised reasonable doubt about competence | No error: substantial evidence supported treating earlier competency finding as continuing, and defendant failed to show a change/new evidence requiring a new hearing |
| Timeliness of seeking pretrial diversion under Penal Code § 1001.36 (first raised on appeal) | §1001.36 requires diversion prior to adjudication (i.e., before verdict); raising it for first time on appeal is untimely and forfeited | Defendant argued she could seek diversion after verdict or on appeal (citing alternative interpretations) | Request for pretrial diversion is timely only if made before adjudication (verdict); raising it first on appeal is untimely and forfeited |
Key Cases Cited
- People v. Whalen, 56 Cal.4th 1 (Cal. 2013) (trial court duty to instruct on general principles and lesser included offenses)
- People v. Vargas, 9 Cal.5th 793 (Cal. 2020) (heat-of-passion standard requires actual influence of strong passion induced by provocation)
- People v. Aledamat, 8 Cal.5th 1 (Cal. 2019) (misdescribed elements/instructional errors subject to harmless-error analysis)
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (application of §1001.36 to defendants whose convictions were not final when statute took effect)
- People v. Mungia, 44 Cal.4th 1101 (Cal. 2008) (abuse of discretion standard for continuance rulings)
- Dusky v. United States, 362 U.S. 402 (U.S. 1960) (competency standard: ability to consult with counsel and rational/factual understanding)
- People v. Rodas, 6 Cal.5th 219 (Cal. 2018) (suspension of proceedings when competency doubt is reasonably raised)
- People v. Fudge, 7 Cal.4th 1075 (Cal. 1994) (defendant must show due diligence to obtain midtrial continuance)