People v. Sandoval CA2/5

Filed 12/2/20 P. v. Sandoval CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE

THE PEOPLE, B294737

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA090295)
v.

EMILIO SANDOVAL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Susan L. Ferguson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Ryan M. Smith, Deputy Attorney
General, for Plaintiff and Respondent.
 In January 2018, fourteen-year-old M.M. was walking to
meet his mother when defendant and appellant Emilio Sandoval
(defendant) approached him holding a 12-inch knife. Defendant
told M.M. to hand over his watch or he would kill M.M., and
defendant jabbed the knife toward M.M. twice from a distance of
about three feet. Defendant then cut his own arm with the knife
and walked away. A jury convicted defendant of one count of
assault with a deadly weapon other than a firearm and one count
of criminal threats, with the latter committed while personally
using a deadly and dangerous weapon. We consider whether the
trial court prejudicially erred in instructing the jury that the
knife could be a deadly weapon either inherently or as-used,
whether there is substantial evidence the knife was deadly as-
used, and whether the trial court erred by excluding testimony
about defendant’s mental health history and his mental illness
diagnoses rendered months after the date of the offense.

I. BACKGROUND
A. The Charges Against Defendant
The Los Angeles County District Attorney charged
defendant with three crimes: (1) attempted second degree robbery
in violation of Penal Code section 664/211 (count 1);1 (2) criminal
threats in violation of section 422, subdivision (a) (count 2); and
(3) assault with a deadly weapon in violation of section 245,
subdivision (a)(1) (count 3). The information further alleged
defendant personally used a deadly and dangerous weapon, a

1
Undesignated statutory references that follow are to the
Penal Code.

2
knife, in the commission and attempted commission of counts one
and two.

B. Relevant Pretrial Proceedings
Prior to trial, the superior court referred defendant for a
psychological evaluation. The assessment was performed by Dr.
Catherine Scarf in May 2018. In the course of the assessment,
Dr. Scarf reviewed various documents related to the case,
including the arraignment hearing transcript and arrest report.
Dr. Scarf also interviewed defendant and reported, among other
things, that during the interview defendant’s thought process
was linear and goal-directed, and there was no evidence of
psychotic process.
During the interview, defendant denied current suicidal
ideation but reported he had attempted suicide in the past.
Defendant declined to discuss his previous suicide attempt.
Defendant reported he had been admitted to a psychiatric
hospital in 2018, which he attributed to being high on
methamphetamine, and he reported he had previously been
diagnosed as suffering from bipolar disorder. Defendant stated
he had problematic alcohol abuse and had undergone
rehabilitation, and he also reported heroin and
methamphetamine use.
Dr. Scarf administered various tests and concluded
defendant’s intellectual abilities were likely in the high-average
range and his reading skills were in the average range. Dr. Scarf
also concluded defendant met the criteria for diagnosis with
unspecified anxiety disorder and stimulant use disorder.

3
 The prosecution moved in limine to exclude Dr. Scarf from
testifying at trial.2 The prosecution argued Dr. Scarf’s opinion
would not be relevant to a jury’s determination of whether
defendant was able to form the requisite intent at the time of the
offense. The trial court granted the prosecution’s motion in
limine and excluded the testimony under Evidence Code section
352. The court stated the testimony was not relevant, would
unduly consume time, and had no probative value because it did
not deal with the events that allegedly transpired on January 23,
2018. Instead, Dr. Scarf could testify only to what she observed
when she interviewed defendant in May 2018. As a result, the
testimony did not go to any defense that could be proffered to the
jury and could only serve to confuse the issues to be decided at
trial.

C. Trial
The prosecution presented testimony from M.M. and two
Los Angeles Police Department officers during its case in chief.
Defendant testified during the defense case.

1. The facts as established by prosecution
witnesses
Around 2:30 p.m. on January 23, 2018, fourteen-year-old
M.M. was walking toward a 99-cent store to help his mother with
some bags when defendant appeared about six feet in front of
him. Defendant was holding a knife that was about 12 inches

2
Though the reporter’s transcript of the hearing suggests
the prosecution filed a written motion, the motion itself is not
included in the appellate record.

4
long, and the knife had some blood on it. Defendant approached
M.M. and, when he (defendant) was about three feet away, told
M.M. to hand over his watch or defendant would kill M.M.
Defendant was pointing the knife toward M.M. at the time and
jabbed the knife toward M.M. twice. During the jabbing motions,
the knife was about two feet away from M.M. M.M. thought
defendant would kill him if he did not hand over his watch, but
M.M. was in shock and froze because he did not know how to
react.
After threatening M.M. and jabbing the knife at him,
defendant cut his own right arm with the knife twice while
looking at M.M. Defendant then started walking away, heading
toward a liquor store. Defendant walked by M.M., passing within
about two feet of him, as he did so. M.M. then called the police.
Los Angeles Police Department Officers apprehended
defendant later that day, and M.M. identified defendant. M.M.
had nightmares for about a week after the incident.

2. Evidentiary ruling on defendant’s testimony
Before defendant testified, the People moved under
Evidence Code section 402 to exclude any testimony regarding
defendant’s prior mental health history or drug use, unless it
related to the day of the offense. Defendant argued his prior
hospitalizations were relevant to his state of mind, noting mental
health issues do not develop overnight. The court granted the
People’s motion, ruling defendant could not testify to any prior
drug usage, mental health issues he may have suffered, or any
hospitalizations or psychiatric care received before or after the
offense, clarifying that the only relevant issue was defendant’s
state of mind and mental capacity on the day of the incident.

5
 3. Defendant’s testimony and his post-
apprehension statements
Defendant testified he cut his arm on the day in question to
make himself bleed.3 Defendant felt like he wanted to kill
himself and was cutting himself both to alleviate pain and to
work up to suicide.
Defendant did not recall encountering M.M. or pointing a
knife at him. Defendant recalled that at the time of the incident,
he was walking down the street with a 10 to 12-inch knife, on his
way to get a beer, and muttering “Watch, I’m going to kill myself”
to himself as he went. When the police stopped him later that
day, defendant did not know why they did so.
Defendant spoke to Officer Banuelos of the Los Angeles
Police Department after his arrest (the interaction was captured
by the officer’s body-worn video camera). Defendant denied
committing a robbery, denied demanding a watch, and denied
threatening to kill anyone. Defendant admitted he had a knife
and had cut himself with a knife, but he said he was not someone
who steals. Defendant said he was mumbling to himself and
might have been misunderstood.

4. Jury instructions
The court gave the jury two instructions on what qualifies
as a deadly weapon. One was based on former CALCRIM No.
875. In pertinent part, the instruction as given stated “[a] deadly
weapon other than a firearm is any object, instrument, or weapon

3
During his testimony, defendant admitted to having a prior
misdemeanor conviction in 2015.

6
that is inherently deadly or one that is used in such a way that it
is capable of causing and likely to cause death or great bodily
injury.” The other instruction was based on former CALCRIM
No. 3145. In pertinent part, that instruction stated “[a] deadly or
dangerous weapon is any object, instrument, or weapon that is
inherently deadly or dangerous or one that is used in such a way
that it is capable of causing and likely to cause death or great
bodily injury.

5. Closing argument
During closing argument, the prosecution commented on
what qualifies as a deadly weapon: “A deadly or dangerous
weapon is any object, instrument, or weapon that is inherently
deadly or dangerous or one that can be used in a manner that
would cause great bodily injury. [¶] I don’t think there’s anyone
that doesn’t know that a knife is capable of bodily injury, that a
knife can be used as a dangerous or deadly weapon. You heard it
from the defendant himself, he had a knife, 12-inch knife, that
means it’s a deadly weapon.” Later, when addressing the assault
with a deadly weapon charge, the prosecutor returned to the
same general subject and argued, “the defendant did an act with
a deadly weapon. He did, he was wielding this steak knife, and
he made a jabbing motion toward the victim twice.”

D. Verdict and Sentencing
The jury deadlocked on the attempted robbery charge
(count 1), and the court declared a mistrial on that count (later
dismissing it). The jury found defendant guilty of the criminal
threats charge (count 2), and further found defendant personally
used a knife, a deadly and dangerous weapon, in the commission

7
of the offense. The jury also found defendant guilty of the crime
of assault with a deadly weapon (count 3).
The trial court sentenced defendant to the mid-term of
three years in state prison on count 3. The court sentenced
defendant to the mid-term of two years on count 2, plus one year
for the knife allegation, for a total of three years as to count 2—to
run concurrently with the sentence on count 3.

II. DISCUSSION
Reversal is not required for any of the three reasons
defendant argues. First, the People rightly concede the trial
court’s instruction on what constitutes a deadly weapon was
defective because the knife defendant had cannot be considered
an inherently deadly weapon. The instruction was not
prejudicial under People v. Aledamat (2019) 8 Cal.5th 1
(Aledamat), however, which is the controlling case on this issue.
The features of the instruction given, the prosecution’s emphasis
on the knife’s capability of causing death or great bodily injury,
the absence of a dispute from the defense about whether the knife
was a deadly weapon, and other findings the jury made in
rendering its verdict all establish the error was harmless.
Second, there is substantial evidence that the knife was used as a
deadly weapon and, thus, that adequate evidence supports
defendant’s conviction for assault with a deadly weapon and the
personal use of a knife enhancement the jury found true. Third,
the trial court did not abuse its discretion when excluding
evidence of defendant’s mental health history and mental illness
diagnoses (and any error was harmless regardless). The excluded
testimony was not significantly probative of defendant’s mental
state when he committed the offense and the trial court

8
reasonably concluded any probative value was outweighed by the
likelihood that presentation of the evidence would unduly
consume time and confuse the jury.

A. The Instructional Error in Defining a Deadly Weapon
Was Not Prejudicial
To find a defendant guilty of assault with a deadly weapon,
a jury must find, among other things, the defendant “did an act
with a deadly weapon that by its nature would directly and
probably result in the application of force to a person.” (§§ 240,
245, subd. (a)(1); People v. Williams (2001) 26 Cal.4th 779;
CALCRIM No. 875.) The court here instructed the jury with the
former version of CALCRIM No. 875 that defined “deadly
weapon” as a weapon other than a firearm “that is inherently
deadly or one that is used in such a way that it is capable of
causing and likely to cause death or great bodily injury.”4
“An ‘inherently deadly or dangerous’ weapon is a term of
art describing objects that are deadly or dangerous in ‘the
ordinary use for which they are designed,’ that is, weapons that
have no practical nondeadly purpose.” (People v. Stutelberg
(2018) 29 Cal.App.5th 314, 318-319.) Because the sort of knife in
defendant’s possession has an ordinary, “innocent purpose” of

4
CALCRIM No. 875 has since been revised. It now states:
“[A deadly weapon other than a firearm is any object, instrument,
or weapon [that is inherently deadly or one] that is used in such a
way that it is capable of causing and likely to cause death or
great bodily injury.]” The bench notes to the instruction state:
“Give the bracketed phrase ‘that is inherently deadly or one’ and
give the bracketed definition of inherently deadly only if the
object is a deadly weapon as a matter of law.”

9
cutting food, it is not an inherently deadly weapon. (Aledamat,
supra, 8 Cal.5th at 6.) It may, however, “be a deadly weapon
within the meaning of section 245, subdivision (a)(1) when used
in a manner capable of causing and likely to cause death or great
bodily injury.” (People v. Brown (2012) 210 Cal.App.4th 1, 7.)
Defendant argues, and the People concede, it was error for
the trial court to instruct the jury there were two alternate
theories it could use to find defendant guilty of assault with a
deadly weapon. While one theory—that the knife was used in a
manner capable of causing and likely to cause death or great
bodily injury—was legally correct, the other—that the knife was
inherently deadly—was legally incorrect. We agree the
instruction was erroneous for that reason. (Aledamat, supra, 8
Cal.5th at 6-7.)
The parties disagree, however, about whether the
erroneous instruction was prejudicial such that reversal is
required. Defendant contends the instruction was prejudicial
because he believes the prosecution relied exclusively on the
theory that the knife was a deadly weapon. The Attorney
General disputes that and argues reversal is not required.
Our Supreme Court’s decision in Aledamat sets the rules
for the prejudice analysis we must undertake. In that case, the
defendant was charged with assault with a deadly weapon in the
form of a box cutter. The trial court instructed the jury with the
former version of CALCRIM No. 875. (Aledamat, supra, 8
Cal.5th at 4.) By presenting the jury with both the inherently
deadly and as-used definitions of a deadly weapon, the trial court
instructed the jury with one legally incorrect theory (inherently)
and one correct theory (as-used). (Id. at 7.) The Supreme Court

10
held this was error but found it harmless based on a “number of
circumstances.” (Id. at 13.)
One of those circumstances was the wording of former
CALCRIM No. 875 itself. That wording (the same wording in the
instruction here) juxtaposes “inherently deadly” with “used in
such a way that it is capable of causing injury and likely to cause
death or . . . great bodily injury” such that the instruction “at
least indicates what the ‘inherently deadly’ language was driving
at.” (Aledamat, supra, 8 Cal.5th at 13-14.) Our Supreme Court
also looked to the prosecution’s closing argument in that case and
found it was unlikely the jury would view the box cutter as
inherently deadly without considering how it was used. The
prosecutor there argued the box cutter was deadly because “‘you
wouldn’t want your children playing with’ it,” and the Court
emphasized “no one ever suggested to the jury that there were
two separate ways it could decide whether the box cutter was a
deadly weapon.” (Id. at 14.) The Supreme Court also found it
significant that the box cutter’s status as a deadly weapon was
not really a point of contention: while the defense attorney did
not concede the box cutter was a deadly weapon, the attorney
also did not argue it was not. (Ibid.)
These same considerations convince us the instructional
error here was not prejudicial. The trial court gave the jury the
same version of CALCRIM No. 875 as was at issue in Aledamat,
and Aledamat’s point about the juxtaposition of the wording in
the instruction accordingly obtains here too. (Aledamat, supra, 8
Cal.5th at 13-14.) In addition, the prosecution’s closing argument
here focused on the manner in which defendant used the knife.
Specifically, the prosecution twice referred to what a knife can be
used to do, not what it inherently does: “I don’t think there’s

11
anyone that doesn’t know that a knife is capable of bodily injury,
that a knife can be used as a dangerous or deadly weapon. To be
sure, the prosecution also remarked right after this that “you
heard it from the defendant himself, he had a knife, 12-inch steak
knife, that means it’s a deadly weapon.”5 But in context, coming
right after what the prosecution said about how a knife can be
used (implicitly conceding a knife can also be used in ways that
are not deadly), we do not understand this subsequent remark as
an assertion that the knife was an inherently deadly weapon.
Rather, the “that” to which the prosecution referred when saying
“that means it’s a deadly weapon” is best understood to refer to
defendant’s use of the knife, which showed it was capable of being
used in a deadly, dangerous way.
Turning to defense counsel’s closing argument, the
circumstances are the same as in Aledamat: defense counsel did
not concede the knife was a deadly weapon but also did not
contest the characterization of the knife as capable of being used
in deadly fashion. The defense’s approach on this point was
sensible because, again as in Aledamat, contesting the point
would have been futile based on the record. (Aledamat, supra, 8
Cal.5th at 14 [“Counsel could readily believe it would be
pointless . . . to argue that even if . . . the jury found defendant

5
Defendant appears to analogize this remark by the
prosecution here to a Court of Appeal case that characterized an
attorney’s closing argument as “highly inflammatory and
improper in many respects,” that is, one that appealed to the
passion or prejudice of the jury, asked for a guilty verdict based
on sympathy for the deceased, and vilified counsel and witnesses.
(People v. Talle (1952) 111 Cal.App.2d 650, 676.) The comparison
is obviously inapt.

12
assaulted the victim with the box cutter, it was not a deadly
weapon”].) Though a 12-inch knife is not inherently deadly, it
obviously has deadly potential when used to stab someone. That
potential would have been all the more apparent to the jury in
light of defendant’s contemporaneous threat to kill M.M.
The Aledamat court also reasoned it would have been
impossible for the jury not to find the box cutter was capable of
causing and likely to cause death or bodily injury based on the
other facts the jury necessarily found in that case. The court
relied on the following findings that the jury made in convicting
Aledamat of assault with a deadly weapon: “(1) defendant did an
act with a deadly weapon (either inherently or as used) that by
its nature would directly and probably result in the application of
force; (2) defendant was aware of facts that would lead a
reasonable person to realize that his act by its nature would
directly and probably result in the application of force to
someone; and (3) defendant had the present ability to apply force
with a deadly weapon to a person.” (Aledamat, supra, 8 Cal.5th
at 15.) The Aledamat court also explained “the jury must have
considered the term ‘inherently deadly’ to mean something” and
concluded that the jury would have necessarily found the box
cutter deadly in the colloquial sense of the word: “readily capable
of inflicting deadly harm.” (Ibid.) As a result, the court
concluded “‘[n]o reasonable jury that made all of these findings
could have failed to find that defendant used the box cutter in a
way that is capable of causing or likely to cause death or great
bodily injury.’ [Citation.]” (Ibid.) The jury here, which made the
same findings as the jury in Aledamat, similarly could not have
done so without also finding defendant used the knife “in a way
that is capable of causing or likely to cause death or great bodily

13
injury.” (Ibid.) Following Aledamat, the instructional error
here was harmless.

B. Substantial Evidence Supports Defendant’s Assault
with a Deadly Weapon Conviction
Defendant challenges the sufficiency of the evidence
supporting his conviction for assault with a deadly weapon in one
respect: whether substantial evidence supports a finding that the
knife was a deadly weapon under the sole legally correct theory,
i.e., that it was used in a way that it was capable of causing and
likely to cause death or great bodily injury. When considering a
challenge to the sufficiency of the evidence to support a criminal
conviction, we review the record “‘in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence—that is, evidence which 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.
Westerfield (2019) 6 Cal.5th 632, 713; see also Evid. Code, § 411
[“Except where additional evidence is required by statute, the
direct evidence of one witness who is entitled to full credit is
sufficient for proof of any fact”]; People v. Barnwell (2007) 41
Cal.4th 1038, 1052.)
In undertaking the required substantial evidence inquiry,
we are guided by the following principles. “First, the object
alleged to be a deadly weapon must be used in a manner that is
not only ‘capable of producing’ but also ‘likely to produce death or
great bodily injury.’” (In re B.M. (2018) 6 Cal.5th 528, 533 (B.M.).)
“Great bodily injury is bodily injury which is significant or
substantial, not insignificant, trivial or moderate.” (People v.
McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel).) Second,

14
the determination of whether the object is a deadly weapon rests
on evidence of how a defendant actually used the object. (B.M.,
supra, at 534.) “Third, although it is appropriate to consider the
injury that could have resulted from the way the object was used,
the extent of actual injury or lack of injury is also relevant. ‘[A]
conviction for assault with a deadly weapon does not require
proof of an injury or even physical contact’ [citation], but limited
injury or lack of injury may suggest that the nature of the object
or the way it was used was not capable of producing or likely to
produce death or serious harm.” (Id. at 535.)
Here, defendant wielded a 12-inch knife and jabbed it
toward M.M. when he was standing three feet away from M.M.
Once extended, the knife was approximately two feet from M.M.
The jury could reasonably infer the knife was sharp and capable
of inflicting serious injury because defendant used it to cut his
own arm while M.M. was watching. Though defendant did not
actually cut M.M., the lack of injury does not indicate defendant’s
act of jabbing the knife toward M.M. was unlikely to produce
serious bodily injury. An object can be a deadly weapon even if it
does not actually produce a deadly result or grievous injury; there
are many cases affirming assault with a deadly weapon
convictions when the object used was “‘some hard, sharp, pointy
thing that was used only to threaten, and not actually used to
stab.’” (People v. Page (2004) 123 Cal.App.4th 1466, 1471-1472
[pencil held against throat was a deadly weapon]; see also In re
D.T. (2015) 237 Cal.App.4th 693, 699 [knife with a sharp blade
more than two and a half inches long]; People v. Simons (1996) 42
Cal.App.4th 1100, 1106-1107 [screwdriver a deadly weapon when
brandished at police officers].) From the way defendant wielded
the knife, we conclude there is more than a mere possibility M.M.

15
would have suffered serious bodily injury if defendant had struck
him while jabbing the knife at him. The record thus contains
substantial evidence defendant used the knife in a manner that
was both capable of producing and likely to produce serious
bodily injury.6

C. The Trial Court’s Exclusion of the Mental Health
Testimony Does Not Warrant Reversal
“Evidence Code section 352 provides that ‘[t]he court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ . . . ’ [T]he trial court enjoys broad
discretion in assessing whether the probative value of particular
evidence is outweighed by concerns of undue prejudice, confusion

6
Defendant’s reliance on the facts of B.M. to urge a different
result is unavailing. While B.M., like this case, involved the use
of a knife, that is where the salient similarities end. The knife
used in B.M. was a butter knife, which was “not sharp and had
slight ridges on one edge of the blade.” (B.M., supra, 6 Cal.5th at
536.) The defendant in B.M. used the knife on her sister’s legs
(which were covered by a blanket), there was no evidence the
defendant attempted to use the knife on any exposed part of the
sister’s body, and the “moderate pressure that [defendant used]
was insufficient to pierce the blanket much less cause serious
bodily injury to [the victim].” (Ibid.) Here, as already noted,
defendant’s 12-inch knife was sharp enough to cut skin and
defendant jabbed the knife toward M.M., who was not protected
by anything that would have stopped the progress of the knife
had defendant made contact.

16
or consumption of time. [Citation.]’” (People v. Williams (2013)
58 Cal.4th 197, 270-271 (Williams).)
Evidence of a mental disease, defect, or disorder is
admissible to demonstrate a defendant did not actually form the
intent necessary for a particular crime. (People v.
Coddington (2000) 23 Cal.4th 529, 583, disapproved on other
grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,
fn. 13.) (It is not, however, admissible to negate the capacity to
form specific intent. (§ 28, subd. (a); People v. Nunn (1996) 50
Cal.App.4th 1357, 1362).) The criminal threats charge against
defendant is a specific intent crime: it “requires a threat of ‘death
or great bodily injury’ with the specific intent that the statement
be taken as a threat.”7 (People v. Jantz (2006) 137 Cal.App.4th
1283, 1292.)
Defendant contends the trial court abused its discretion
and violated his constitutional rights to due process of law and a
fair trial when it excluded testimony regarding his mental health.
The trial court made two rulings pertinent to this argument, one
granting the prosecution’s motion in limine to exclude testimony
by Dr. Scarf under section 352, and one granting the
prosecution’s later section 402 motion to preclude defendant from
testifying about prior drug usage, mental health issues, or any

7
Assault with a deadly weapon, in contrast, is a general
intent offense that does not require specific intent, and evidence
of a defendant’s mental illness cannot negate the requisite
intent. (People v. Rocha (1971) 3 Cal.3d 893, 899; People v.
Atkins (2001) 25 Cal.4th 76, 91.)

17
hospitalizations or psychiatric care received before or after the
offense. 8
The defense made no offer of proof in the trial court as to
what Dr. Scarf would say if called to testify. The doctor’s report
is therefore the only indication of her proposed testimony in the
appellate record. It discusses three general categories of
information: aspects of defendant’s mental health history,
defendant’s performance on various cognitive tests administered
by Dr. Scarf, and the diagnoses Dr. Scarf reached after
conducting her assessment.
None of this information, however, was linked to
defendant’s mental state on the day of the offense, which means
it had little if any probative value. Dr. Scarf’s recitation of
defendant’s prior diagnosis of bipolar disorder—a disorder she
did not include in her diagnosis of him—and his other mental
health history was obtained solely from her interview with
defendant. The report does not state Dr. Scarf reviewed any
records that might have provided independent support for
defendant’s assertions. Additionally, other than the 2018
hospitalization that defendant attributed to methamphetamine
use, defendant’s own statements to Dr. Scarf did not suggest any
of these historical factors were temporally proximate to the date

8
To the extent defendant contends the trial court should
have permitted the introduction of a separate report detailing an
evaluation pursuant to section 1368, that contention is forfeited
because defendant did not seek to have the evidence admitted
below. (People v. Seijas (2005) 36 Cal.4th 291, 301 [“questions
relating to the admissibility of evidence will not be reviewed on
appeal in the absence of a specific and timely objection in the
trial court on the ground sought to be urged on appeal”].)

18
of the offense (and there is no evidence proving defendant was
under the influence of methamphetamine when he threatened
and assaulted M.M.).
The results of Dr. Scarf’s cognitive tests of defendant
similarly were not linked to his behavior on the date of the
offense. Further, even if the tests could be seen as relevant to
defendant’s state of mind on the day of the assault, the results
indicated defendant’s thought process was linear and his
intellectual capacity and reading ability ranged between average
and high-average. Thus, if anything, the test results would
suggest defendant did form the requisite intent to commit the
criminal threats offense.
Finally, Dr. Scarf’s report does not link the diagnoses she
rendered in May 2018 to defendant’s state of mind on the day of
the incident, which occurred months earlier. Nor does the report
indicate those diagnoses would support an inference defendant
had not formed the requisite intent to threaten M.M. With low
or no probative value, the trial court stayed within the bounds of
its discretion when it determined calling Dr. Scarf as a witness
presented an unwarranted risk of confusing the issues and would
unduly consume time.
Defendant acknowledges Dr. Scarf’s report does not
“specifically” address how his diagnoses might have affected his
mental state at the time of the offense, but he argues the
omission does not mean the information could not have been
elicited and he contends it was error for the trial court not to hold
a further hearing under Evidence Code section 402. The first of
these contentions is unavailing because he made no offer of proof
as to how the diagnoses could be connected to his mental state.
(People v. Anderson (2001) 25 Cal.4th 543, 580-581 [“a judgment

19
may not be reversed for the erroneous exclusion of evidence
unless ‘the substance, purpose, and relevance of the excluded
evidence was made known to the court by the questions asked, an
offer of proof, or by any other means’”].) The latter of these
contentions is forfeited because defendant did not ask the court to
conduct an Evidence Code section 402 hearing so Dr. Scarf could
describe her anticipated testimony in more detail. (In re Seaton
(2004) 34 Cal.4th 193, 198.)
Defendant additionally urges it was error for the trial court
to rule he could not testify regarding his own mental health
history and his state of mind immediately preceding and
following the incident, arguing the evidence would have bolstered
his credibility. This argument is flawed for three reasons. First,
the trial court’s ruling did not prevent defendant from testifying
regarding his state of mind “immediately preceding and
immediately following” the incident; the trial court did not limit
defendant’s testimony to the exact moment of the offense.
Rather, the trial court ruled the relevant issue was defendant’s
state of mind and mental capacity on the day of the incident.
Second, defendant did not advance this credibility argument
below, where he argued only that his mental health history was
relevant to his state of mind, not his credibility. Third, to the
extent defendant argues his testimony would have been relevant
to his intent, defendant did not detail for the trial court the
testimony he would have provided regarding his mental health
history and thus did not demonstrate how it would have
indicated he did not form the requisite intent that M.M.
understand his statement as a threat. Without an offer of proof
showing a connection between his proposed testimony and his

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behavior during the incident, we cannot fault the trial court’s
decision.9
Even assuming for argument’s sake that the trial court’s
evidentiary rulings were erroneous under the abuse of discretion
standard, it is still true that “‘[a]pplication of the ordinary rules
of evidence . . . [generally] does not impermissibly infringe on a
defendant’s right to present a defense.’ [Citations.] Although
completely excluding evidence of an accused’s defense
theoretically could rise to this level, excluding defense evidence
on a minor or subsidiary point does not impair an accused’s due
process right to present a defense. [Citation.] If the trial court
misstepped, ‘[t]he trial court’s ruling was an error of law merely;
there was no refusal to allow [defendant] to present a defense,
but only a rejection of some evidence concerning the defense.’
[Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1103
(Fudge).) Thus, for our purposes, “the proper standard . . . [for
assessing prejudice] is that announced in People v. Watson (1956)
46 Cal.2d 818, 836 [Watson] . . . , and not the stricter beyond-a-
reasonable-doubt standard reserved for errors of constitutional
dimension (Chapman v. California (1967) 386 U.S. 18, 24 . . . ).”
(Fudge, supra, 7 Cal.4th at 1103.)
The trial court did not refuse to allow defendant to present
a complete defense; it excluded only some evidence the defense
wanted to present. (See Fudge, supra, 7 Cal.4th at 1102-1103.)
Defendant was allowed to testify—and did testify—about his
mental state on the day of the incident. He claimed he was

9
Defendant’s reliance on People v. Moss (2003) 109
Cal.App.4th 56 (Moss) is improper. The case was superseded by
grant of review and is not citable.

21
suicidal and was talking to himself at the time of the offense. He
also testified he had cut himself to alleviate pain he was feeling
and did not recall encountering M.M. or pointing a knife at him.
Assuming the excluded testimony regarding his diagnosis,
months later, of stimulant use and unspecified anxiety disorders
was relevant to bolster this testimony, its exclusion did not
preclude “all testimony about the accused’s own diagnosis, or
mental condition, at the time of the offense.” (People v. Cortes
(2011) 192 Cal.App.4th 873, 909.) Accordingly, reversal is not
warranted unless it is “reasonably probable that a result more
favorable to [defendant] would have been reached in the absence
of the error.” (Watson, supra, 46 Cal.2d at 836.)
That is not the case here. Nothing in the evidence the trial
court excluded connected defendant’s mental health diagnoses or
methamphetamine hospitalization to the absence of a specific
intent to threaten M.M. It is thus not reasonably probable that
the admission of the evidence would have led the jury to find
defendant did not intend for M.M. to understand his statement,
made while he was jabbing a knife at M.M., as a threat.

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 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.

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