36 Cal.App.5th 1103
Cal. Ct. App.2019Background
- Defendant Christopher Weaver, diagnosed with schizophrenia/schizoaffective disorder, was found incompetent, restored, then tried by jury and convicted of two counts of criminal threats (Pen. Code § 422) and misdemeanor exhibition of a deadly weapon; sentenced to four years.
- Pretrial: Weaver filed a letter complaining about appointed counsel (Whitehead) while proceedings were suspended for incompetence; the court later appointed other counsel (Page firm) and the case proceeded without an on-the-record Marsden hearing on the letter.
- At trial the prosecution introduced evidence of an uncharged March 2016 7‑Eleven battery (striking witness Richard S.) under Evidence Code § 1101(b) to show motive/intent and corroboration; the defense did not object to the jury’s limiting Instruction (CALCRIM No. 375) as admitted for limited purpose.
- Weaver appealed, arguing (1) the trial court erred by not holding a Marsden (substitute counsel) hearing on his letter, (2) the §1101(b) admission of the 7‑Eleven battery was erroneous and prejudicial, and (3) Penal Code § 1001.36 (pretrial mental‑health diversion), enacted while his appeal was pending, should be applied retroactively and remand for a diversion eligibility hearing is required.
- The Court of Appeal: rejected Marsden and §1101(b) challenges (finding abandonment of Marsden claim and no abuse of discretion on the prior‑acts admission), but conditionally reversed and remanded for a § 1001.36 diversion hearing because Estrada retroactivity presumption was not overcome by the statute’s text or history.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Weaver’s letter required a Marsden hearing | Court should have afforded opportunity to be heard on substitute counsel request | Letter constituted a Marsden motion and the court’s failure to hold a hearing was prejudicial | No remand: defendant abandoned the Marsden request by failing to renew it and later obtaining new counsel and many court appearances without complaint |
| Admissibility under Evidence Code § 1101(b) of uncharged 7‑Eleven battery | Admission was proper to show motive and intent and to corroborate victims | Prior battery was not sufficiently similar and was offered for propensity; prejudicial | Admission affirmed: acts were sufficiently similar to show intent/motive and limiting instruction given; no abuse of discretion |
| Whether Penal Code § 1001.36 applies retroactively to nonfinal convictions | Statute confers ameliorative benefit and Estrada presumption controls; remand for diversion hearing appropriate when record shows possible threshold eligibility | Statute’s ‘‘pretrial’’ language and other provisions show it was meant to be applied prospectively only | Section 1001.36 applies retroactively to cases not yet final on appeal; remand ordered for a § 1001.36 eligibility hearing |
Key Cases Cited
- People v. Marsden, 2 Cal.3d 118 (1970) (defendant entitled to opportunity to explain grounds for substitute appointed counsel)
- In re Estrada, 63 Cal.2d 740 (1965) (ameliorative criminal statutes presumed to apply to nonfinal judgments)
- People v. DeHoyos, 4 Cal.5th 594 (2018) (detailed retroactivity mechanisms can rebut Estrada presumption)
- People v. Lara, 6 Cal.5th 1128 (2019) (strong inference of retroactivity under Estrada for ameliorative changes unless Legislature clearly signals otherwise)
- People v. Frahs, 27 Cal.App.5th 784 (2018) (applied § 1001.36 retroactively and remanded for diversion eligibility hearing)
- People v. Craine, 35 Cal.App.5th 744 (2019) (reached opposite conclusion on retroactivity for post‑trial convictions)
- People v. Sanchez, 53 Cal.4th 80 (2011) (Marsden principles and right to substitute counsel explained)
- People v. Ewoldt, 7 Cal.4th 380 (1994) (standards for admitting other‑crimes evidence to prove intent)