People v. Ogbu CA1/3

Filed 9/17/20 P. v. Ogbu CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
A157371
Plaintiff and Respondent,
(Alameda County
v. Super. Ct. No. 17CR000038)

UCHECHUKWU OGBU

Defendant and Appellant.

Defendant Uchechukwu Ogbu was convicted of assault with a
deadly weapon (knife) (Pen. Code1 § 245, subd. (a)(1)) and was
sentenced to a term of three years in state prison. He seeks a new trial
because the trial court (a) did not hold a section 1368 hearing to
determine his competence to stand trial and (b) denied his request to
present certain evidence in support of a claim of self-defense. We
affirm.
Factual and Procedural Background
The assault charge arose from a stabbing in December 2016. The
prosecution’s theory was that defendant stabbed an unarmed victim

1 All further unspecified statutory references are to the Penal Code.

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without provocation while defendant claimed the stabbing was in self-
defense. The jury trial took place in March 2019.
A. The People’s Case
In December 2016, victim J.S.2 worked as a protection specialist
at a retail store in San Leandro, along with F.P. (asset protection
specialist) and T.W. (loss prevention officer). Store policy required
personnel to at times “go off property to keep eye contact and then
contact the police” concerning potential shoplifters. The store
authorized J.S. to conduct “receipt checks” (asking customer for
purchase receipts) but he could not detain suspected shoplifters. F.P.
and T.W. were authorized to detain suspected shoplifters.
On the day in question, J.S., F.P., and T.W. were at work and in
the store's security office. J.S. was viewing a surveillance camera when
he saw defendant pushing a shopping cart that contained a duffel bag
and backpack; he watched as defendant left the store with the bag and
backpack. J.S. wanted to perform a receipt check on the duffel bag,
which appeared to be "new" according to T.W. J.S., F.P., and T.W. left
the store so that J.S. could conduct a receipt check.
They reached defendant on the walkway at a local Bay Area
Rapid Transit (BART) station, which was several hundred feet from the
store. J.S. approached defendant, while F.P. and T.W. maintained a
slight distance. J.S. identified himself as store security and asked if
defendant could provide a receipt. Defendant refused and responded, “I
don’t know who you are,” with an “attitude” that was “defensive,
yelling, [and] upset.” J.S. repeated that he worked for store security

2 Pursuant to the California Rules of Court, rule 8.90, governing
“Privacy in Opinions,” we refer to the victim and certain witnesses by
their initials.

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and exhibited a walkie-talkie with visible store insignia as proof of his
identity. J.S., who was not armed, never raised his voice or threatened
defendant.
When defendant reached into the duffel bag, J.S. turned to leave
because he did not know what was in the bag and wanted to defuse the
situation. Realizing that defendant’s duffel bag was not new and
therefore not store merchandise, both T.W. and F.P. also left. As all
three store employees walked away, defendant followed them, saying “
‘No, you’re not going nowhere,’ ” but the men did not respond and
continued to walk. Defendant spit at J.S.’s back, hitting him on his
neck and possibly his head. J.S. turned around to find defendant “in
front of [his] face;” according to T.W., at this point defendant was
attempting to “grab” J.S. Defendant then threw his right arm around
J.S. and stabbed him in the back with a knife held in his right fist. J.S.
attempted to get away while defendant continued to stab him in the
chest, face, hand, and back until J.S. fell to the ground. The physical
confrontation lasted approximately five to ten seconds.
The three employees moved a safe distance away from defendant
and subsequently received help from police and medical personnel. At
the hospital, J.S. received stitches and staples to close several stab and
laceration wounds, and he later had surgery that left a visible scar on
his hand. The jury was shown photographs of J.S.’s injuries as they
appeared three days after the stabbing.
BART Police Officer Casey Tyler and BART Police Sergeant
Joseph Mateu arrived at the scene in response to a dispatch call.
Officer Tyler spoke with defendant, who was cooperative, not visibly
injured or scared, and spoke “as though he felt he was the victim.”

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Sergeant Mateu seized as evidence J.S.’s shirt that was soaked in blood
and defendant’s knife that appeared to have blood on its 3.5-inch blade.
BART Police Officer Christoper Plumley also came to the scene and
interviewed defendant inside the police substation at the BART station. The
interview was audio-recorded and portions were played for the jury. During
his statement defendant was “calm and cordial” and he did not appear to
have been “assaulted or shocked.” Defendant said he had been attacked, but
never said he was afraid of his attacker. Defendant said his cell phone
contained “video evidence” of the encounter, but refused to allow the officer to
view it. Plumley gave several reasons for not making further attempts to
obtain the cell phone video, including his belief that defendant’s infliction of
multiple stab wounds would not have been a commensurate response even if
J.S. had been the initial aggressor.
B. Defense Case
Defendant testified as follows. He visited the store to obtain
medication but did not buy anything. He left the store and walked to
the BART station while listening to loud music through headphones.
At the BART station, he had put his duffel bag and backpack on the
ground when “two individuals come up to [him],” J.S. and another man
who was neither F.P. nor T.W. Defendant could not hear what the men
said because of his headphones, but assumed they wanted cigarettes
and said he could not help them.
When J.S. kept speaking, defendant partially removed his
headphones and heard J.S. repeatedly saying, “ ‘Give me back my
stuff.’ ” J.S. was not dressed “professionally,” never said his name or
mentioned store security, and never used the word “receipt.”
Eventually J.S. “started to reveal an affiliation” with the store, but he
could not provide any corroboration other than a “walkie-talkie” in his

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pocket with no visible store insignia. Because defendant did not know
what J.S. was talking about, defendant assumed J.S. “and his friend”
were “trying to rob” him. So defendant used his right hand to “cleverly
conceal[ ][a] knife” and used his other hand to take out a cell phone to
record the encounter.
When J.S. and the other man “started power walking away,”
defendant followed to see if he could get a photo of them while he held
the blade covered by a sweater in his right hand. To get the men’s
attention, defendant loudly said, “ ‘You haven’t shown me anything and
you’re not going anywhere,’ ” “ ‘I want more from you. You need to tell
me what this is about,’ ” and “ ‘Hey, hey, I’ll go back with you.’ ”
Defendant did not call the men names, he was not rude, and he did not
spit at J.S. The men did not verbally respond, but at some point they
turned around and came at defendant. Defendant lost sight of the
second man, but J.S. turned around and punched defendant in the head
at which point defendant instinctively “tried to push [J.S.] away with
his right hand,” which held the blade. J.S. again punched defendant in
the head and grabbed his shirt, and defendant again responded by
pushing J.S. away, this time in J.S.’s “lower backside.” Defendant felt
threatened, shaky, and in fear of his life.
Defendant denied that J.S. held him in a bear hug or head lock,
and insisted that there was “zero struggle” between them except for
J.S.’s two punches and grabbing of defendant’s shirt, and defendant’s
successful attempts to push J.S. away. Defendant inflicted only two of
the several stab “marks” on J.S., and did not know how the other
“marks . . . were added to [J.S.’s] body.” Defendant asserted “there was
no blood on [his] knife” when he gave it to the police.

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 Because defendant saw blood on J.S. and was worried about him,
he called 911 with the cell phone that he used to record the encounter
and with his other cell phone he called his mother. He cooperated with
the police when they arrived.
DISCUSSION
I. Trial Court’s Refusal to Hold a Section 1368 Hearing to
Determine Defendant’s Competence to Stand Trial

A. Relevant Facts
On the day the case was assigned to a trial department,
defendant’s retained counsel moved for a hearing to determine
defendant’s competence to stand trial as defendant’s “behavior [was]
pretty erratic” and “volatile.” Specifically, that day outside the
courthouse defendant had been yelling at him and defense counsel was
not sure how defendant would act in the courtroom. The trial court
explained that an attorney-client dispute was not evidence of
incompetence, especially given the lack of “a manifestation on the part
of [defendant] that he ha[d] some mental health problem such that it
would be difficult for him to comprehend what’s going on, to participate
in his defense.” The trial court noted it was not aware of anything
indicating defendant was not competent to proceed to trial and denied
the motion.
Defense counsel then informed the court that defendant had said
many “strange things,” including that defense counsel and a former
judge assigned to the case were “working for” the store that had
employed the victim and defense counsel was “[being] paid off” by other
people to secure a conviction. Defendant acknowledged these
statements and felt “volatile” because of the long delay in his case. The

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trial court again stated it was denying the request for a section 1368
hearing because whether defendant trusted his counsel or the trial
court was “a separate issue” from whether defendant was competent to
stand trial.
B. Applicable Law
“[S]ection 1368, subdivision (a) provides, in relevant part, that
‘[i]f, during the pendency of an action and prior to judgment . . . a
doubt arises in the mind of the judge as to the mental competence of
the defendant,’ the trial court must suspend proceedings to determine
the defendant’s competence. [Citation.] A defendant is incompetent to
stand trial if the defendant lacks [either] ‘sufficient present ability to
consult with his [or her] lawyer with a reasonable degree of rational
understanding . . . [or] a rational as well as factual understanding of
the proceedings against him [or her].’ [Citation.]” (People v. Mickel
(2016) 2 Cal.5th 181, 201 (Mickel).)
“Because the decision whether to order a competency hearing ‘is
for the discretion of the trial judge,’ we will not reverse it on appeal
unless ‘a doubt as to [mental incompetence] may be said to appear as a
matter of law or where there is an abuse of discretion.’ [Citation.]”
(Mickel, supra, 2 Cal.5th at p. 201.) “On review, our inquiry is focused
not on the subjective opinion of the trial judge, but rather on whether
there was substantial evidence raising a reasonable doubt concerning
the defendant’s competence to stand trial. [Citation.] Evidence may be
substantial even where it is contested or presented by the defense.
[Citation.] A trial court reversibly errs if it fails to hold a competency
hearing when one is required under the substantial evidence test.
[Citation.]” (Mickel, supra, at p. 195.)

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 C. Analysis
“[U]nder the substantial evidence test . . . the focus of the
competence inquiry is on a defendant’s understanding of the criminal
proceedings against him or her and the ability to consult with counsel
or otherwise assist in his or her defense. [Citation.]” (Mickel, supra, 2
Cal.5th at p. 202.) Here, the trial court acted well within its discretion
in finding that neither defendant’s belief that there was a conspiracy to
assure his conviction nor his disagreement with defense counsel
necessarily suggested that defendant lacked the requisite ability to
understanding the criminal proceeding against him or the ability to
consult with his counsel or assist in his defense. Contrary to
defendant’s contention, “ ‘[m]ore is required to raise a doubt than mere
bizarre actions or bizarre statements’ ” made by defendant, “ ‘or
statements of defense counsel’ ” that defendant was unable, as opposed
to unwilling, to assist counsel. (People v. Ramirez (2006) 39 Cal.4th
398, 431, quoting People v. Laudermilk (1967) 67 Cal.2d 272, 285; see
People v. Mai (2013) 57 Cal.4th 986, 1033 [defense “[c]ounsel’s assertion
of a belief in a client’s incompetence” does not constitute substantial
evidence of incompetence]; Mickel, supra, at p. 202 [“[d]efendant’s trial
demeanor is relevant to, but not dispositive of, the question whether
the trial court should have suspended proceedings under section
1368”].)
We also see no merit to defendant’s argument that the trial court
abused its discretion by failing to consider “other potential evidence” of
his competence, i.e., by requesting to hear testimony of family members
who might have provided evidence sufficient to raise a doubt regarding
defendant’s mental health. Defendant cites no case law that requires

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the court to sua sponte call family members or other witnesses before
deciding whether it has a doubt as to defendant’s competence to stand
trial. (See Mickel, supra, 2 Cal.5th at p. 204 [letters from family and
friends that, among other things, defendant had been assessed by
psychiatrists, and he was “ ‘crazy’ ” or “ ‘very confused and disturbed,’ ”
not substantial evidence of incompetence].)
Nor are we persuaded by defendant’s reliance on the trial court’s
finding that defendant appeared to be suffering from an undiagnosed
“personality disorder that gives rise to paranoia on his behalf,” thereby
reducing “his culpability for this crime” and that this constituted a
mitigating factor for sentencing. (See Cal. Rules of Court, rule
4.423(b)(2) [circumstances in mitigation include that defendant is
suffering from a mental condition that significantly reduces culpability
for the crime]). While the trial court’s comments “reflect generalized
concerns that defendant suffered from . . . a [psychiatric disorder], . . .
they do not show that defendant was, as result of a mental illness,
unable to understand the nature and purpose of the criminal
proceedings against him or” assist in his defense such that the court
was required to declare a doubt about defendant’s competence and
order a section 1368 hearing. (Mickel, supra, 2 Cal.5th at p. 203; see
People v. Blair (2005) 36 Cal.4th 686, 714 [“even a history of serious
mental illness does not necessarily constitute substantial evidence of
incompetence that would require a court to declare a doubt”].)
In sum, “[t]he evidence before the trial court . . . did not amount
to substantial evidence requiring the court to suspend proceedings
prior to entering judgment. Because of this, we cannot conclude the
court abused its discretion by failing to declare a doubt as to

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defendant’s competence and order a [section 1368] hearing. We
therefore reject defendant’s claim.” (Mickel, supra, 2 Cal.5th at p. 204.)
II. Trial Court’s Evidentiary Rulings
A. Evidence of Defendant’s Statements
During the pretrial conference, defense counsel moved to admit
evidence of defendant’s statements made when he called his mother on
his cell phone after the stabbing; specifically that he told her he had
been attacked and scared, and had to stand his ground. Counsel
argued for the admission of these statements as spontaneous
declarations and represented he could call defendant’s mother as a
witness. This request was tentatively denied without prejudice to
renewal of the request during trial. The trial court was not aware of
the admissibility of “a self-serving statement made by somebody after
he's been accused of an assault,” and did not believe a foundation could
be laid for such evidence. Nonetheless, its denial was “without
prejudice because we can have [an Evidence Code section] 402 hearing.
[Defendant’s mother] can testify outside of the presence of the jury, and
if during her testimony she can satisfy the requirements of a
spontaneous statement, then I would reconsider my ruling. . . .” The
record does not indicate defense counsel ever renewed the request to
admit defendant’s statements as spontaneous declarations and
defendant’s mother was never called as a witness.
Defendant argues the trial court abused its discretion in denying
his request to admit evidence of his statements as spontaneous
declarations. “We reject the argument at the threshold for it was not
preserved for appellate review. As a general matter, when a trial court
denies a motion without prejudice the matter is forfeited if not

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renewed.” (People v. Mills (2010) 48 Cal.4th 158, 170.) The record
shows that while the trial court tentatively denied the request to admit
evidence of defendant’s statements, its comments were “not a definite
ruling” against admission of the evidence; “the absence of an adverse
ruling precludes any appellate challenge.” (People v. McPeters (1992) 2
Cal.4th 1148, 1179.)
Defendant complains that the trial court’s comments at the time
of its tentative denial seemed to provide little room for reconsideration,
and therefore it would have been “futile,” “redundant,” or “pointless” for
counsel to renew the request to admit evidence of defendant’s
statements as spontaneous declarations. We disagree. There is
nothing in the record that demonstrates defense counsel was or would
have been dissuaded from renewing the request to admit evidence of
defendant’s statements by calling defendant’s mother as a witness.
Rather, the record shows the trial court anticipated defense counsel
would call defendant’s mother as a witness at which time it would
conduct an Evidence Code section 402 hearing and reconsider its
ruling.
Defendant makes no argument that the trial court erred in
refusing to admit the evidence without an Evidence Code section 402
hearing. And, indeed, any such argument could not be made because
no objection was lodged to the trial court’s decision to reconsider its
ruling after such a hearing. Accordingly, we conclude defendant has
forfeited his contention that the exclusion of his statements as
spontaneous declarations was erroneous by his failure to renew his
request to admit this evidence during the trial. (See People v. Smith
(2003) 30 Cal.4th 581, 632 [because defendant failed to renew request

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to admit certain evidence for specific reasons, he “may not now argue
on that basis that its exclusion was error,” citing Evid. Code § 354].)
Moreover, we note that there does not appear to be any abuse of
discretion in the trial court’s decision. (See People v. Williams (1997)
16 Cal.4th 153, 197 [“a trial court’s decision to admit or not admit
evidence, whether made in limine or following a hearing pursuant to
Evidence Code section 402, is reviewed only for abuse of discretion”];
see also People v. Morris (1991) 53 Cal.3d 152, 190 [a pretrial or in
limine motion preserves an evidentiary issue only if, among other
thing, “the motion is made at a time before or during the trial when the
trial judge can determine the evidentiary question in its appropriate
context”].)
We also reject defendant’s assertion that we should consider the
merits of his claim that his statements qualified as spontaneous
declarations and exclusion of this evidence violated his constitutional
Sixth and Fourteenth Amendment rights. “One function of an offer [of
proof] at trial is to provide a reviewing court with the means of
assessing prejudice from any error (citation), thus enabling a party
challenging the judgment to meet its burden of affirmatively showing
reversible error by an adequate record (citation). Nothing in this record
properly shows, beyond surmise, what [defendant’s mother] would have
said” if called as a witness at trial. (Gutierrez v. Cassiar Mining Corp.
(1998) 64 Cal.App.4th 148, 161-162; italics in original.) “It is well
settled, of course, that a party challenging a judgment has the burden
of showing reversible error by an adequate record. [Citations.]
Because [defendant] has failed to provide such a record, we have no

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occasion to consider further the merits of his” claim of error. (Ballard
v. Uribe (1986) 41 Cal.3d 564, 574-575.)
B. Evidence of Victim’s Violent Character
After defendant completed his testimony, defense counsel asked
to call witnesses to testify to a June 1, 2017 shouting incident to show
that J.S. was a “violent” person and to corroborate defendant’s
testimony that J.S. was the aggressor before being stabbed. Defense
counsel stated J.S. “was really mad” immediately after testifying at the
preliminary hearing; when he left the courtroom he started “screaming”
at defendant and was “[l]oud, boisterous yelling, pushing forward.”
Defense counsel believed defendant’s mother and the prosecutor would
testify that defendant and defense counsel were talking privately in the
hallway of the courthouse when J.S. approached and “was ready to
start a fight with” defendant, but the prosecutor came forward and
successfully stopped J.S. Defense counsel did not know if the incident
had been reported to the Sheriff’s Department and no statements had
been taken from defendant’s mother regarding the incident.
Without objection, the trial court framed the issue as whether
defendant could call as witnesses his mother and the prosecutor to
testify about the June 2017 shouting incident when no pretrial notice
had been given, no report had been made, and no witness statements
had been taken. So framed, the trial court denied the request under
Evidence Code section 352 and explained that, regardless of the bare
“minimal probative value” of the incident, the admission of the
proffered evidence “would necessitate undue consumption of time or
create substantial danger of undue prejudice or confusing the issues or
mislead the jury.”

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 The law governing the admission of evidence of a victim’s
subsequent acts of violence is well-established; such evidence “is
admissible . . . to prove [the victim’s] aggressive and violent character
at the time of the earlier crime.” (People v. Shoemaker (1982) 135
Cal.App.3d 442, 444 (Shoemaker).) While “this post crime character
evidence is relevant and, like all relevant evidence, is admissible,” it
may be “properly excluded under Evidence Code section 352.”
(Shoemaker, supra, at p. 444.) “Under Evidence Code section 352, the
trial court enjoys broad discretion in assessing whether the probative
value of particular evidence is outweighed by concerns of undue
prejudice, confusion or consumption of time. [Citation.] Where, as here,
a discretionary power is statutorily vested in the trial court, its exercise
of that discretion ‘must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124; italics in original.)
We find no abuse of discretion in the trial court’s finding that
evidence of the shouting incident was of limited probative value vis-a-
vis the issues to be resolved by the jury concerning the December 2016
stabbing. Based on defense counsel’s offer of proof, any evidentiary
value as to J.S.’s propensity for violence was greatly diminished by the
fact that it did not involve a physical altercation between J.S. and
defendant. Instead, it appears to have been an isolated verbal
encounter which would create undue prejudice in that the evidence
would “merely make[ ] the victim of a crime look bad.” (People v. Kelly
(1992) 1 Cal.4th 495, 523.)

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 We also see no abuse of discretion in the finding that admission
of the incident would unduly prolong the trial. In the absence of a
written report or statements, the parties would be required to call
witnesses to testify as to precisely what occurred. Defendant’s
assertion that the trial court could have limited him to calling one or
two witnesses (defendant’s mother and/or the prosecutor) does not
account for the fact that the People would have been entitled to call
rebuttal witnesses at a minimum including defendant, defense counsel,
and J.S.
Moreover, the jury would have had to first determine what
actually occurred on that occasion, and would then have to consider its
impact (if any) on their consideration of defendant’s claim that during
the December 2016 stabbing incident J.S. was the initial aggressor.
Thus, the jury could have been misled or confused as the more time
spent on the shouting incident, the greater the risk that the jury would
lose sight that the victim’s purported conduct on that occasion was not
directly at issue in the assault case. (People v. Snow (2003) 30 Cal.4th
43, 90 (Snow).)
We therefore conclude the trial court did not abuse its discretion
in refusing to admit evidence of the June 2017 incident under Evidence
Code section 352. (Snow, supra, 30 Cal.4th at p. 90.) We also conclude,
despite defendant’s argument to the contrary, that this evidence was
not “of such probative strength that its exclusion violated his
constitutional right to present a defense.” (Ibid.) The “marginal
probative value of this evidence does not take it outside” the usual rule
that “[a]pplication of the ordinary rules of evidence, such as Evidence

15
Code section 352, generally does not deprive the defendant of the
opportunity to present a defense.” (Ibid.)
DISPOSITION
The judgment is affirmed.

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 _________________________
Petrou, J.

WE CONCUR:

_________________________
Siggins, P.J.

_________________________
Fujisaki, J.

People v. Ogbu/A157371

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