People v. GrahamPeople v. Graham
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 attaсk, 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
We conclude that hеr conviction should not be disturbed, and affirm.
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.
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 prеvented 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,
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 twо 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 аll.
On October 30, 2018, a grand jury indicted defendant for attempted premeditated murder (
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 toоk 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
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] prоvocation.” (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).)
Here, the jury‘s finding that defendant‘s attempted murder was willful, premeditated and deliberate necessarily decidеd 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 rеnders 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) 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 tо 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
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
However, this error was harmless. In Aledamat, our Supreme Court clarified that the exact instructional error at issue here was еffectively 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 hаrmless 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
II. Denial of Midtrial Continuance
Defendant argues that the trial court erred in denying her request for a one-day continuance after thе 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.
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
B. Analysis
A continuance in a criminal case may only be granted for good cause. (
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
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
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 competеncy was
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] incompetеnt.” 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 сonvicted 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
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
Defendant responds with three arguments. First, she argues that her placement on suicide watсh 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
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 tо “grant pretrial diversion” to persons who “suffer[] from a mental disorder” that was a “significant factor in the commission” of the charged crime(s). (
First and foremost, we hold that a request for “pretrial diversion” under section 1001.36 is timely only if it is made prior
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.” (
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
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 lawyеrs 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
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 differеnt 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
Second, and alternatively, the onus is placed on the defendant to raise the issue of diversion.
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
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
________________________, J.
HOFFSTADT
We concur:
________________________, Acting P. J.
ASHMANN-GERST
________________________, J.
CHAVEZ