People v. Moore CA2/8

Filed 9/23/20 P. v. Moore CA2/8
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B286405

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA095941)
v.

JAMES RONNIE MOORE,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los
Angeles County. Suzette Clover, Judge. Conditionally reversed
and remanded with directions.
Laurie Wilmore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Zee Rodriguez and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.

**********
 Defendant and appellant James Ronnie Moore was
convicted by jury of making criminal threats and exhibition of a
deadly weapon and sentenced to eight years in prison. Defendant
raised numerous appellate challenges including that he should be
considered for mental health diversion pursuant to Penal Code
section 1001.36, a new statute enacted after his 2017 conviction.
In our original unpublished opinion filed October 7, 2019,
we affirmed defendant’s conviction, concluded Penal Code
section 1001.36 did not apply retroactively and remanded for the
limited purpose of allowing the trial court the opportunity to
exercise its discretion to strike the five-year enhancement
pursuant to section 667, subdivision (a)(1).
Defendant filed a petition for review with the Supreme
Court. The Supreme Court granted review and deferred further
consideration of the matter pending its disposition in People v.
Frahs (2020) 9 Cal.5th 618 (Frahs). After the issuance of its
decision in Frahs, the Supreme Court, by order dated August 19,
2020, transferred the matter to this court with directions to
vacate our original decision and reconsider the cause in light of
Frahs.
Having done so, we again reject defendant’s claims of trial
error. However, in light of Frahs, we conclude a “conditional
limited remand for the trial court to conduct a mental health
diversion eligibility hearing” pursuant to Penal Code
section 1001.36 is warranted. (Frahs, supra, 9 Cal.5th at p. 640.)
FACTUAL AND PROCEDURAL BACKGROUND
Sometime around 9:00 p.m. on March 22, 2015, Michael
Petroff went to a gas station on Colorado Boulevard in Pasadena
to speak with Joseph Khouri, an employee at the station, about
having a mechanic look at a car Mr. Petroff wanted to buy.

2
Mr. Petroff and Mr. Khouri were talking inside the mechanic’s
area of the station which is largely enclosed by glass windows
and doors. The doors were locked as was usual at that time of
night.
As Mr. Petroff and Mr. Khouri were talking, defendant
approached the glass windows several times. He came “up to the
window, very close” and appeared to be angry. Mr. Khouri
believed defendant was drunk. Mr. Khouri was familiar with
defendant and told Mr. Petroff that defendant was homeless and
regularly came to the gas station. For years, defendant had been
sleeping outside the gas station and sometimes he was allowed to
use the bathroom. Mr. Khouri believed defendant was an
“excellent person” when he was sober, but he acted “crazy” and
“out of control” when he drank alcohol. Defendant sometimes
harassed customers at the station, and one time he had
threatened a mechanic with a knife.
Mr. Petroff was very concerned and “shocked” by
defendant’s behavior because he was waving, in a threatening
way, a “large knife” that looked like a meat cleaver or butcher
knife. Defendant, who appeared to be looking primarily at
Mr. Petroff, said “I’m going to kill you” or “I could kill you with
this” or something to that effect. Defendant threatened
Mr. Petroff twice while waving the knife and using profanities,
including calling him a “mother f----r.”
Mr. Petroff who, according to Mr. Khouri, looked scared
and nervous, did not feel it was safe to go outside the station.
Mr. Khouri was not nervous because of his past experience with
defendant and he thought it best to wait to see if defendant would
just go away peacefully. However, Mr. Khouri had never seen
defendant this angry. Therefore, both men decided to stay inside

3
the station. Mr. Petroff believed defendant was probably not a
physical threat to him so long as he stayed locked inside the
station with Mr. Khouri. Yelling through the glass windows,
Mr. Petroff gave defendant several warnings, telling him to go
away or he would call the police. Defendant kept coming back to
the window. After the third time, Mr. Petroff called 911 on his
cell phone and waited inside until the police arrived.
Within a few minutes, police officers from the Pasadena
Police Department arrived at the gas station. Officer Ryan
Castillo was one of the responding officers. The officers detained
defendant who was sitting at the side of the gas station when
they arrived. Defendant was drinking a beer, his eyes were
bloodshot, and his breath smelled of alcohol. Defendant told
Officer Castillo that he was only trying to get the key to the
bathroom.
Officer Castillo spoke with Mr. Petroff. He reported he had
been scared by defendant’s behavior and called 911 because he
did not believe he could safely go outside to his car and leave.
Mr. Khouri was not interviewed because he told Officer Castillo
he did not want to get involved. A knife, approximately
seven inches long, was recovered in some bushes near the station
and placed into evidence.
Defendant was charged by information with making
criminal threats (Pen. Code, § 422, subd. (a); count 1), and
misdemeanor exhibition of a deadly weapon (§ 417, subd. (a)(1);
count 3). (Count 2, assault with a deadly weapon, was dismissed
by the court at the preliminary hearing.) As to count 1, it was
alleged defendant personally used a deadly and dangerous
weapon (a knife) in the commission of the offense (§ 12202,
subd. (b)). It was further alleged that defendant had suffered a

4
prior serious or violent felony within the meaning of section 667,
subdivision (a)(1) and the “Three Strikes” law (§ 667, subds. (b)-
(j), § 1170.12).
At a pretrial hearing in September 2015, defense counsel
declared a doubt as to defendant’s competence. The trial court
suspended the proceedings and appointed a doctor (Dr. Rothberg)
to examine defendant, setting October 7, 2015 as the return date.
We reserve a more detailed discussion of the facts related to the
competency hearing to part 2 of the Discussion, post.
When the criminal proceedings were resumed in October
2015, the court entertained a Marsden (People v. Marsden (1970)
2 Cal.3d 118) request from defendant at which defendant also
made references to proceeding in propria persona. We reserve a
more detailed discussion of the facts related to these requests to
part 3 of the Discussion, post.
The case proceeded to a jury trial in January 2016.
Mr. Petroff, Mr. Khouri and Officer Castillo testified to the above
facts. Both Mr. Petroff and Mr. Khouri identified defendant in
court as the person who had been brandishing the knife that
evening.
During Mr. Petroff’s testimony, a recording of the 911 call
was played for the jury. The transcript of the call was consistent
with Mr. Petroff’s and Mr. Khouri’s trial testimony, referencing a
homeless African-American man brandishing a knife and acting
in a threatening manner.
Detective Timothy Bundy testified he was assigned the
case as lead detective. Sometime after the incident, Detective
Bundy spoke with Mr. Petroff to go over the statement he gave to
Officer Castillo at the scene. The conversation was recorded and
the recording was played for the jury. In the conversation,

5
Mr. Petroff confirmed he had never seen defendant before that
night, defendant was brandishing a knife and acting in “a very
aggressive” and “threatening” manner, defendant was giving
them “the finger” and cursing, and Mr. Petroff called the police
because he believed if he tried to leave the station, defendant
might have injured or killed him. Mr. Petroff said defendant did
not specifically say he would use the knife if he came outside, but
“the inference was unmistakable.”
Detective Bundy also followed up with Mr. Khouri who said
defendant had been waving a knife around and cursing through
the window at Mr. Petroff. Detective Bundy spoke with the
owner of the gas station and recovered the video footage from the
security cameras. The video footage was played for the jury. It
showed defendant approaching the glass windows at the station
three times holding a knife.
The jury found defendant guilty of criminal threats and
misdemeanor exhibition of a deadly weapon and found true the
personal use of a deadly weapon allegation. Defendant waived
his right to a jury trial on the prior allegation.
On February 8, 2016, the court suspended the criminal
proceedings a second time, based on defense counsel declaring a
doubt as to defendant’s competence to proceed to sentencing.
Defendant was examined by three doctors. In March 2017, the
court found defendant competent to proceed based on the doctors’
reports and resumed the criminal proceedings. The court held
another Marsden hearing and denied defendant’s request for
substitute counsel.
At the conclusion of the Marsden hearing, defendant said
that if he could not get a new lawyer appointed then “I want my
Faretta.” (Faretta v. California (1975) 422 U.S. 806.) The court

6
cautioned defendant that self-representation was not a good idea
and not in his best interests, but if he wanted to pursue it, he
would need to agree to be examined again for a determination if
he was competent to do so and waive time with respect to his
sentencing hearing. Defendant agreed.
When the parties returned in July 2017, the court stated on
the record that the doctor found defendant competent to
represent himself. The court asked defendant if he still wished to
proceed to sentencing as his own attorney and defendant said
yes. The court again advised defendant that it was not in his
best interest to proceed in propria persona because of the
difficulties in doing so, but defendant insisted he wanted to
represent himself. The court granted defendant’s Faretta request
and relieved counsel. Defendant said he wanted copies of
transcripts. He agreed to waive time and the court continued the
sentencing hearing.
At the continued hearing in November 2017, the court held
the priors trial and found true the allegation that defendant
suffered a prior conviction in 1994 for burglary for which he
served time in prison. The court then heard and granted
defendant’s motion to strike his prior conviction for purposes of
the Three Strikes law.
The court also heard argument on defendant’s motion for
new trial. After allowing defendant wide latitude to argue his
motion, the court denied the request for a new trial.
The court sentenced defendant to a state prison term of
eight years calculated as follows: a midterm of two years on the
base count (count 1), plus a consecutive one-year term for the
deadly weapon enhancement, and a consecutive five-year term
for the prior conviction pursuant to Penal Code section 667,

7
subdivision (a)(1). The court imposed and stayed a six-month
term on count 3 and awarded defendant 1,166 days of
presentence custody credits.
The court imposed a court security fee of $40, a criminal
conviction assessment of $30, a $300 victim restitution fine and a
$300 parole revocation fine. The court ordered that all fines and
fees were to be “suspended given [defendant’s] medical issues.”
Following remand from the Supreme Court, respondent
submitted a supplemental letter brief conceding that defendant is
entitled to a limited remand for purposes of the trial court
conducting an eligibility hearing pursuant to Penal Code
section 1001.36. Defendant did not submit a supplemental letter
brief.
DISCUSSION
1. Penal Code Section 1001.36
Penal Code section 1001.36 was enacted in June 2018,
during the pendency of this appeal. It authorizes the diversion of
certain alleged offenders into mental health treatment programs
in lieu of criminal prosecution. (§ 1001.36, subd. (a) [court may
“grant pretrial diversion to a defendant pursuant to this section if
the defendant meets all of the requirements specified in
paragraph (1) of subdivision (b)”].)
Frahs concluded that Penal Code section 1001.36 applies
retroactively because it mitigates the possible punishment for a
specific class of offenders with certain enumerated mental health
conditions and there is no clear contraindication of legislative
intent. (Frahs, supra, 9 Cal.5th at pp. 630-637; see also In re
Estrada (1965) 63 Cal.2d 740, 742-748 [an amendatory statute
lessening punishment for a crime is presumptively retroactive,
absent clear legislative intent for prospective application, and

8
applies to all defendants whose judgments are not final at the
time the statute becomes effective].)
Frahs explained that, in light of the retroactivity of the
statute, “a conditional limited remand for the trial court to
conduct a mental health diversion eligibility hearing is
warranted when, as here, the record affirmatively discloses that
the defendant appears to meet at least the first threshold
eligibility requirement for mental health diversion—the
defendant suffers from a qualifying mental disorder.” (Frahs,
supra, 9 Cal.5th at p. 640.)
Here, as respondent concedes, at least one of the
psychiatrists who examined defendant determined that, while he
was competent to stand trial, he nonetheless suffered from
mental illness consistent with schizophrenia or schizoaffective
disorder. Both of these disorders are enumerated at Penal Code
section 1001.36, subdivision (b)(1)(A).
Additionally, defendant was not convicted of any of the
disqualifying offenses enumerated in subdivision (b)(2) of Penal
Code section 1001.36.
We find defendant is therefore entitled to a conditional
limited remand to allow the trial court the opportunity to conduct
a mental health diversion hearing in accordance with Penal Code
section 1001.36. If the trial court finds that defendant suffers
from a qualifying mental disorder, does not pose an unreasonable
risk of danger to public safety, and otherwise meets all of the
statutory criteria set forth in section 1001.36, then the court may
grant mental health diversion in accordance with the statutory
scheme. If defendant successfully completes
diversion, then the court shall dismiss the charges.
However, if the court determines that defendant does

9
not meet the criteria under Penal Code section 1001.36, or if
defendant does not successfully complete mental health
diversion, then his conviction and sentence shall be reinstated.
In the event defendant’s conviction is reinstated, we discuss
and resolve defendant’s other appellate contentions. As in our
original opinion, we reject his claims of error, except we find that
the court may exercise its discretion to strike the five-year
enhancement imposed pursuant to Penal Code section 667,
subdivision (a)(1) as discussed in part 9, post.
2. The First Competency Hearing
Defense counsel first declared a doubt during pretrial
proceedings in September 2015. The court suspended
proceedings and, after a doctor found him competent, reinstated
proceedings in October 2015. After trial, before sentencing,
defense counsel again declared a doubt in February 2016. The
court again suspended proceedings and, after he was found
competent, reinstated proceedings in March 2016. Defendant’s
competence was examined a third time before the court granted
his Faretta motion.
Defendant makes no claim of error regarding the two
posttrial competency hearings. He claims only that at the first
hearing, the trial court prejudicially erred in failing to expressly
find him competent to stand trial.
A defendant is presumed competent to stand trial, unless
the contrary is established by a preponderance of the evidence.
(People v. Campbell (1976) 63 Cal.App.3d 599, 608; see also
Pen. Code, § 1369, subd. (f).) “A defendant is deemed
incompetent to stand trial if he lacks ‘ “ ‘sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding . . . [or] a rational as well as factual

10
understanding of the proceedings against him [or her].’ ” ’ ”
(People v. Lightsey (2012) 54 Cal.4th 668, 690; accord, People v.
Mickel (2016) 2 Cal.5th 181, 194-195; see also § 1367, subd. (a)
[“A defendant is mentally incompetent . . . if . . . the defendant is
unable to understand the nature of the criminal proceedings or to
assist counsel in the conduct of a defense in a rational manner.”].)
In reviewing a finding of competency, we are governed by
the substantial evidence test. (People v. Marshall (1997)
15 Cal.4th 1, 31 (Marshall).) “Evidence is substantial if it is
reasonable, credible, and of solid value.” (Ibid.) A review of the
complete record here reveals substantial evidence supports the
court’s written finding of competency.
After counsel declared a doubt the first time at a pretrial
hearing, the court suspended proceedings, a doctor examined
defendant and submitted his report, and the parties returned to
court the next month. Defense counsel reported that
Dr. Rothberg “came back with the opinion that [defendant] is not
1368.” The court and counsel then discussed setting a trial date.
Defense counsel said, “I believe at this point we are . . . at 47 of
60.” The court responded, “I thought it went to 0 of 60.” The
prosecutor said, “When a doubt is declared and they come back,
it’s 0 of 60.”
Defense counsel then said defendant wanted a Marsden
hearing. Before clearing the courtroom to conduct the Marsden
hearing, the court asked if there was a report finding defendant
competent for purposes of self-representation. Defense counsel
said the issue was addressed in Dr. Rothberg’s report. The court
then conducted a lengthy Marsden hearing, discussing various
issues and concerns raised by defendant. The Marsden request
was denied. The court’s minute order for that date includes the
following: “The court has read and considered a report.

11
Defendant is found competent. [¶] Criminal proceedings are
reinstated.”
It is well established that “once a trial court has ordered a
competency hearing pursuant to [Penal Code] section 1368, the
court lacks jurisdiction to conduct further proceedings on the
criminal charge or charges against the defendant until the court
has determined whether he is competent.” (People v. Marks
(1988) 45 Cal.3d 1335, 1337 (Marks).)
Defendant relies on Marks in asserting the trial court failed
to make an express finding of competency and improperly
deferred to defense counsel’s assessment of Dr. Rothberg’s report.
We are not persuaded by defendant’s characterization of the first
competency hearing and find Marks is inapposite.
The trial court in Marks erred by agreeing to the defense
counsel’s request to take the competency hearing off-calendar
without saying anything to suggest the court found defendant
competent. The court went along with the defense counsel’s
request and failed to hold a hearing or make any written or oral
ruling as to the defendant’s competency. (Marks, supra,
45 Cal.3d at p. 1339.)
Marks stated: “[N]o ‘magic words’ are required of the trial
court. We hold, however, that the constitutional right to due
process, [Penal Code] section 1369, and our holding in [People v.
Hale (1988) 44 Cal.3d 531], require, at a minimum, that the trial
court expressly and unmistakably state on the record, either orally
or in writing, its determination as to whether the defendant is
mentally competent to stand trial.” (Marks, supra, 45 Cal.3d at
p. 1343.)
Here, right after defense counsel reported the doctor found
defendant was competent (he “is not 1368”), counsel discussed the

12
trial schedule with the court. There is no doubt that the court
and counsel all understood the court found defendant was
competent, because they agreed that date was 0 of 60, meaning
defendant was entitled to be brought to trial within 60 days of
that date. This highly experienced trial judge and both counsel
plainly understood that time does not run for the purpose of
protecting defendant’s speedy trial rights while a defendant is
incompetent.
When defense counsel asked for a Marsden hearing, the
court wanted to know what the expert had to say about
defendant’s competency to represent himself, counsel pointed the
court to the expert’s report, and the court held a Marsden
hearing. Defense counsel would not have requested a Marsden
hearing if counsel had been uncertain whether the court found
defendant was competent to stand trial. Likewise, the court
would not have held a Marsden hearing if the court had not found
defendant was competent to explain to the court why he wanted
new counsel. The minutes of the proceedings state the court read
the expert’s report, after which the court found defendant
competent and reinstated proceedings. In the criminal courts,
judges and lawyers who frequently appear before them often
speak to one another in shorthand. Recognizing this, the Marks
court said no magic words are required to reinstate proceedings
so long as the trial court record unmistakably shows whether the
trial court made a competency finding. That is the case here.
3. The Pretrial Faretta Motion
Defendant contends it was structural error for the trial
court to deny his oral pretrial request to represent himself. We
disagree.

13
 The Sixth Amendment right to self-representation
articulated in Faretta is not absolute. (People v. Butler (2009)
47 Cal.4th 814, 825.) “Unlike the right to representation by
counsel, the ‘ “right of self-representation is waived unless
defendants articulately and unmistakably demand to proceed pro
se.” ’ ” (People v. Danks (2004) 32 Cal.4th 269, 295, italics added.)
In order to protect the fundamental constitutional right to
the effective assistance of counsel, “one of the trial court’s tasks
when confronted with a motion for self-representation is to
determine whether the defendant truly desires to represent
himself or herself.” (Marshall, supra, 15 Cal.4th at p. 23.) In so
doing, “courts must draw every inference against supposing that
the defendant wishes to waive the right to counsel.” (Ibid.)
Courts “should evaluate not only whether the defendant has
stated the motion clearly, but also the defendant’s conduct and
other words. Because the court should draw every reasonable
inference against waiver of the right to counsel, the defendant’s
conduct or words reflecting ambivalence about self-representation
may support the court’s decision to deny the defendant’s motion.
A motion for self-representation made in passing anger or
frustration, an ambivalent motion, or one made for the purpose of
delay” may be denied without running afoul of the Constitution.
(Ibid.)
“In determining on appeal whether the defendant invoked
the right to self-representation, we examine the entire record de
novo.” (People v. Dent (2003) 30 Cal.4th 213, 218.)
The record here demonstrates that defendant did not make
a clear and unequivocal request to represent himself at trial. At
the October 7, 2015 Marsden hearing, defendant expressed his
dissatisfaction with his appointed counsel, primarily for allegedly

14
failing to subpoena the witnesses defendant believed were
important to his defense. The court explained to defendant that
the victims and other witnesses would not be subpoenaed until it
was time for trial. Defendant continued to assert that his
attorney was not representing him properly. Defendant said
“I don’t want anyone on this” and “I want to handle it [the
subpoenas] when that happens.”
These comments are followed by a long colloquy addressing
primarily various medical complaints by defendant, as well as
comments by defense counsel attempting to explain the efforts he
had made on the case and his efforts to communicate,
unsuccessfully apparently, with defendant.
Defendant then interjected, “I want to exercise my Faretta
rights, ma’am.” However, the conversation then returned to a
discussion of the actions taken by his counsel, including both trial
counsel and counsel who handled defendant’s preliminary
hearing. Ultimately, defendant’s comments returned to his
desire to subpoena the relevant witnesses.
The court said it sounded like defendant just wanted to get
the case set for trial, and defendant confirmed that is what he
wanted, but he did not want to be represented by the public
defender’s office because it was “not going to work.” The court
told defendant he could not paint all of the deputy public
defenders with the same “broad brush” but had to point out
proper bases for substituting counsel and he had not done so.
Defendant said if he could not exercise his Faretta rights,
he wanted another attorney. He wanted to have an attorney of
his “own color.” The court advised defendant that was not a
proper basis for substituting counsel.

15
 Defendant said counsel had made unspecified
misrepresentations to him and that “last time [he] was [in court]”
he asserted his Faretta rights. The court responded by telling
defendant, “meaning no disrespect at all—so you understand that
at—at the last court appearance, you weren’t making any sense
at all” thus necessitating the proceedings being suspended to
allow defendant to be examined for competence. The court told
defendant that it could set the case for trial if that is what he
wanted, and the witnesses he thought were important could then
be subpoenaed. Defendant said yes, he wanted to subpoena
Mr. Khouri (Joe) and another gas station employee that had
worked the morning of the incident (Sam).
The Marsden hearing was concluded, the proceedings were
resumed and a trial date set. There were no further statements
by defendant stating any desire to proceed in propria persona.
Defendant did not make an unequivocal request to
represent himself. (See, e.g., People v. Tena (2007)
156 Cal.App.4th 598, 608 [the defendant’s remarks about self-
representation after denial of Marsden request were “impulsive
reactions” to “frustrated attempts to secure an attorney who
would subpoena the witnesses that he desired, rather than
unequivocal Faretta requests”]; People v. Scott (2001)
91 Cal.App.4th 1197, 1205, fn. 3 [request to self-represent
equivocal where after denial of Marsden request, defendant
asked to proceed in pro se].)
4. Count 1—Criminal Threats
Defendant contends there is insufficient evidence
supporting his conviction for making criminal threats in violation
of Penal Code section 422. We are not persuaded.

16
 We review the evidence according to the familiar standard.
(People v. Rodriguez (1999) 20 Cal.4th 1, 11 [“In assessing a claim
of insufficiency of evidence, the reviewing court’s task is to review
the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.”].)
The record contains ample evidence supporting the jury’s
conclusion that defendant violated Penal Code section 422, the
elements of which are: “(1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great
bodily injury to another person,’ (2) that the defendant made the
threat ‘with the specific intent that the statement . . . is to be
taken as a threat, even if there is no intent of actually carrying it
out,’ (3) that the threat—which may be ‘made verbally, in
writing, or by means of an electronic communication device’—was
‘on its face and under the circumstances in which it [was] made,
. . . so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat,’ (4) that the threat
actually caused the person threatened ‘to be in sustained fear for
his or her own safety or for his or her immediate family’s safety,’
and (5) that the threatened person’s fear was ‘reasonabl[e]’ under
the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-
228.)
The testimony of Mr. Petroff and Mr. Khouri, which was
largely corroborated by the security camera footage, established
that three times, defendant approached the glass doors of the gas
station garage and waved a large knife in a threatening manner.

17
Both men testified that defendant was angrily cursing at them
and he threatened to kill Mr. Petroff at least twice. Mr. Khouri
also said defendant appeared drunk and that he knew him to act
crazy and out of control when he was drunk and that he had
never seen him that angry before. Mr. Khouri testified that
Mr. Petroff appeared nervous and scared. Mr. Petroff was
unequivocal that he was shocked and intimidated by defendant’s
behavior. He feared for his safety and did not believe he could
safely leave the locked garage and therefore had to call the police
to intervene.
We are not persuaded by defendant’s argument that any
fear experienced by Mr. Petroff was only “fleeting or transitory.”
(In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Defendant’s
angry and threatening behavior lasted for several minutes,
during which time Mr. Petroff remained inside the locked garage
until the police arrived because he feared defendant might follow
through on his threats.
5. The Failure to Instruct on Attempt
Defendant contends the trial court committed prejudicial
instructional error by failing to instruct on the lesser included
charge of attempted criminal threats. Defendant concedes he did
not request the instruction, but contends his substantial rights
were affected (Pen. Code, § 1259) and that the court had a sua
sponte duty to instruct on the lesser included charge. The
contention is without merit.
“ ‘A trial court has a sua sponte obligation to instruct the
jury on any uncharged offense that is lesser than, and included
in, a greater charged offense, but only if there is substantial
evidence supporting a jury determination that the defendant was
in fact guilty only of the lesser offense.’ ” (People v. Rangel (2016)

18
62 Cal.4th 1192, 1224-1225, italics added; accord, People v.
Thomas (2012) 53 Cal.4th 771, 813.)
As we already explained in part 4, ante, there was
substantial evidence defendant engaged in threatening behavior
that caused Mr. Petroff to experience sustained fear within the
meaning of Penal Code section 422. No reasonable construction
of the record supports the conclusion that defendant was guilty
only of attempted criminal threats. As such, no sua sponte duty
to instruct with the lesser included charge arose.
6. The Deadly Weapon Enhancement
Defendant contends there was insufficient evidence to
support the enhancement for using the knife as a deadly weapon.
“In assessing the sufficiency of the evidence, we review the
entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) “The
test is whether substantial evidence supports the decision, not
whether the evidence proves guilt beyond a reasonable
doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) The
reviewing court’s “opinion that the evidence could reasonably be
reconciled with a finding of innocence or a lesser degree of crime
does not warrant a reversal of the judgment.” (People v. Hill
(1998) 17 Cal.4th 800, 849.) Reversal is only warranted when it
clearly appears “ ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the
conviction].’ ” (Bolin, at p. 331.)
“As used in [Penal Code] section 245, subdivision (a)(1), a
‘deadly weapon’ is ‘any object, instrument, or weapon which is

19
used in such a manner as to be capable of producing and likely to
produce, death or great bodily injury. [Citation.] Some . . .
objects, such as dirks and blackjacks, have been held to be deadly
weapons as a matter of law; the ordinary use for which they are
designed establishes their character as such. [Citations.] Other
objects, while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great
bodily injury. In determining whether an object not inherently
deadly or dangerous is used as such, the trier of fact may consider
the nature of the object, the manner in which it is used, and all
other facts relevant to the issue. [Citations.]” (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029.) The question is whether the
weapon was used in a way that was likely to cause significant or
substantial injury. (People v. Beasley (2003) 105 Cal.App.4th
1078, 1087.)
Here, the evidence supports the jury’s conclusion defendant
used the knife as a deadly weapon. Several times, defendant
walked right up to the window of the mechanic’s area where
Mr. Petroff was talking with Mr. Khouri. He appeared to be
angry and drunk. He was waving a seven-inch long knife that
looked like a meat cleaver or butcher knife in a threatening way
while he told Mr. Petroff “I’m going to kill you” or “I could kill you
with this.” On this record, the jury could reasonably conclude the
knife was used as a deadly weapon. (See People v. Monjaras
(2008) 164 Cal.App.4th 1432, 1437 [where defendant menacingly
displayed gun tucked into his waistband and ordered the victim
to give him her purse, “the jury was entitled to take defendant at
his word, so to speak, and infer from his conduct that the pistol
was a real, loaded firearm and that he was prepared to shoot the
victim with it if she did not comply with his demand”]; Cf. In re

20
B.M. (2018) 6 Cal.5th 528, 536 [no substantial evidence that
butter knife was used as a deadly weapon where it was mildly
pressed against victim’s blanketed legs, and not against any
vulnerable or exposed part of the body such as head, face or
neck].)
Defendant also asserts the court prejudicially erred by
failing to instruct the jury regarding the use of a deadly weapon.
Respondent concedes the trial court had a sua sponte duty to give
CALCRIM No. 3145 because it defines the elements of the
enhancement. We agree with respondent that the error was
harmless beyond a reasonable doubt. (People v. Mil (2012)
53 Cal.4th 400, 417.) There was compelling evidence that
defendant, who was drunk and angry, brandished a large knife
while telling Mr. Petroff he intended to kill him with it. The jury
could only have reasonably concluded on this record that
defendant used a deadly weapon.
7. The Instruction on Count 3
Defendant asserts the court erred by using the term “knife”
instead of “deadly weapon” when instructing the jury on
misdemeanor exhibition of a deadly weapon. Defendant has
forfeited this contention by failing to object in the trial court.
(Bolin, supra, 18 Cal.4th at p. 328.) We are not persuaded the
modification affected defendant’s substantial rights. If there
were any error, it was harmless, as the knife was the only deadly
weapon to which any witness testified, and there could have been
no jury confusion on that point.
8. The Motion for New Trial
Defendant contends the court erred in denying his
nonstatutory motion for new trial based on the grounds of
ineffective assistance of counsel. We disagree.

21
 “Although ineffective assistance of counsel is not among the
grounds enumerated for ordering a new trial under Penal Code
section 1181, motions alleging ineffective assistance are
permitted pursuant to ‘the constitutional duty of trial courts to
ensure that defendants be accorded due process of law.’ ” (People
v. Callahan (2004) 124 Cal.App.4th 198, 209.)
Our review of the court’s ruling on a nonstatutory motion
for new trial is de novo. “A defendant’s claim that he or she was
deprived of the constitutional right to effective assistance of
counsel ‘presents a mixed question of fact and law,’ and we
accordingly review such question independently. [Citation.] We
accord deference to the trial court’s factual determinations if
supported by substantial evidence in the record but exercise our
independent judgment in deciding whether the facts demonstrate
trial counsel’s deficient performance and resulting prejudice to
the defendant.” (People v. Ogunmowo (2018) 23 Cal.App.5th 67,
76.)
The ineffective assistance claim is based almost exclusively
on defendant’s claim that Mr. Petroff and Mr. Khouri were liars
and that trial counsel failed to impeach them. Ordinarily,
tactical trial decisions by counsel, such as the manner of pursuing
cross-examination of witnesses, are afforded substantial
deference. (People v. Hayes (1990) 52 Cal.3d 577, 621.)
“ ‘A reviewing court will not second-guess trial counsel’s
reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th
1153, 1185; accord, People v. Boyette (2002) 29 Cal.4th 381, 424.)
Defendant fails to articulate any reasonable basis for
second-guessing trial counsel’s decisions on how to cross-examine
Mr. Petroff and Mr. Khouri. Defendant’s primary complaint
against counsel is based on an apparent typographical error in

22
one of the police reports. In a paragraph discussing both
Mr. Petroff and Mr. Khouri, there is a sentence stating that
Mr. Petroff reported defendant sometimes makes threats and
gets angry but he did not believe defendant would attack him.
While attributed to Mr. Petroff, the statement is consistent with
the testimony Mr. Khouri gave at trial and is not consistent with
anything Mr. Petroff ever said. It is the statement of someone
who had regular contact with defendant, like Mr. Khouri. In
contrast, it is not consistent with Mr. Petroff’s trial testimony,
pretrial interview or 911 call that Mr. Petroff had never seen
defendant before that night—a fact which defendant does not
dispute. Defendant nevertheless insists it was impeachment that
should have been pursued by trial counsel to show Mr. Petroff
was a liar. Defendant has not met his burden of demonstrating
ineffective assistance of trial counsel in the cross-examination of
the two main witnesses.
The remaining claims of ineffective assistance are similarly
without merit and do not warrant further discussion.
9. Penal Code Section 667, Subdivision (a)(1)
Defendant contends, and respondent concedes, that the
trial court may exercise its newly granted discretion under
Senate Bill No. 1393 (2017-2018 Reg. Sess.). As relevant here,
Senate Bill No. 1393 amended provisions of Penal Code
section 667 and section 1385, granting discretion to trial courts to
strike a prior serious felony conviction in connection with
imposition of the five-year enhancement set forth in section 667,
subdivision (a)(1). (Stats 2018, ch. 1013, § 1, § 2.) The
amendatory provisions became effective January 1, 2019, during
the pendency of this appeal.

23
 At the time defendant was sentenced in November 2017,
imposition of a consecutive five-year term pursuant to Penal Code
section 667, subdivision (a)(1) was mandatory. In In re Estrada,
supra, 63 Cal.2d at pages 744-745, the California Supreme Court
held that, absent evidence of contrary legislative intent, it is an
“inevitable inference” that the Legislature meant for new
statutes that reduce the punishment for certain prohibited acts to
apply retroactively to every case not yet final on appeal. It is
undisputed that defendant’s appeal was not final at the time the
new provision went into effect. We agree with the parties that
defendant is therefore entitled to the benefit of the amendatory
provision.
At oral argument, defense counsel advised us that the trial
court exercised its discretion while this appeal was pending to
strike the five-year enhancement, as evidenced by an amended
abstract of judgment filed June 6, 2019. The trial court had no
jurisdiction to strike the enhancement while the case was
pending appeal. We express no displeasure with the court’s
decision to strike the enhancement while this appeal was
pending. However, if the trial court concludes that defendant is
not eligible for mental health diversion under Penal Code
section 1001.36 or if defendant’s conviction is reinstated because
he fails to complete diversion, then the court shall have the
opportunity to exercise its discretion once again on the five-year
prior after the remittitur has formally restored jurisdiction in the
trial court.
DISPOSITION
The conviction and sentence of defendant and appellant
James Ronnie Moore is conditionally reversed for a limited
remand with the following instructions:

24
 If the trial court finds that defendant suffers from a
qualifying mental disorder, does not pose an unreasonable risk of
danger to public safety, and otherwise meets all of the statutory
criteria set forth in Penal Code section 1001.36, then the court
may grant mental health diversion in accordance with the
statutory scheme. If defendant successfully completes
diversion, then the court shall dismiss the charges.
However, if the court determines that defendant does
not meet the criteria under Penal Code section 1001.36, or if
defendant does not successfully complete mental health
diversion, then his conviction and sentence shall be reinstated.
In the event defendant’s conviction is reinstated, the trial court
shall exercise its discretion whether to strike the five-year
enhancement pursuant to Penal Code section 667,
subdivision (a)(1) and shall thereafter prepare and forward a new
abstract of judgment to the Department of Corrections and
Rehabilitation.

GRIMES, J.
WE CONCUR:

BIGELOW, P. J.

WILEY, J.

25