People v. Wade CA3

Filed 4/23/21 P. v. Wade CA3
                                           NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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.

                                      THIRD APPELLATE DISTRICT


                   Plaintiff and Respondent,                                                 C090655

         v.                                                                    (Super. Ct. No. 18FE019068)


                   Defendant and Appellant.

         Appointed counsel for defendant Chancellor Lenard Wade asked this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 

25 Cal. 3d 436

(Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the judgment.

       On September 16, 2018, G.R. was working at a Walmart where a register with a
large amount of cash was kept. A man G.R. identified at trial as defendant approached
her with his hand in his pocket and said, “I don’t want nobody to get hurt” and “I want
you to put your drawer -- your register on the counter.” G.R. opened the register and put
the money drawer on the counter. Defendant took the hundreds and the twenties and
walked out of the store. Security cameras recorded the incident, and the video was
played for the jury at trial. Managers calculated the loss at about $4,500.
       On September 29, 2018, M.K. was working at the Walmart when a man M.K.
identified at trial as defendant approached the register and said, “I’m here for the
robbery.” Defendant then said “This is a robbery. Can you open up your drawer?
Otherwise I’m going to hit you.” M.K. told defendant she could not open the drawer by
herself and needed to call her manager. Defendant responded, “Don’t call your manager,
otherwise I’m going to hit you. You have only five seconds to open your drawer.” A
manager came to the counter and took M.K. to an office to find out what was going on.
When the manager returned to the counter, defendant was gone. The incident was
recorded by security cameras and the video was played for the jury at trial.
       The People charged defendant with robbery (Pen. Code, § 211)1 and attempted
robbery (§§ 664/211). It was further alleged that defendant had two prior strike
convictions and two prior serious felony convictions. (§§ 667, subds. (a), (b)-(i),
1170.12.) The trial court granted defendant’s motion to represent himself at trial
pursuant to Faretta v. California (1975) 

422 U.S. 806


45 L. Ed. 2d 562

       Defendant’s defense was duress and necessity; he claimed he owed money to his
drug dealer, who was threatening his family, so he reluctantly committed the robbery and
attempted robbery in order to pay his debt. He claimed he did not threaten M.K.

1 Undesignated statutory references are to the Penal Code.

       The jury found defendant guilty on both counts and the trial court denied
defendant’s motion for a new trial. Defendant waived jury trial on the prior conviction
allegations and the trial court found them to be true.
       The trial court dismissed a strike allegation on count 2 and also dismissed the
section 667, subdivision (a) prior serious felony allegations. The trial court sentenced
defendant to 31 years to life, consisting of the following: 25 years to life on count 1 as a
third strike; and a consecutive six years (the midterm of three years, doubled) on count 2
as a second strike. The trial court awarded 434 days of presentence credit (377 actual
days and 57 conduct days).
       Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. 

(Wende, supra


25 Cal. 3d 436

.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
       Defendant filed a supplemental brief arguing the trial court should have granted
his requests for mental health diversion, judgment of acquittal, new trial, and a pinpoint
instruction defining “immediate danger.” He further argues the trial court should have
instructed sua sponte on circumstantial evidence to prove specific intent, and the
cumulative errors prejudiced him.
       Defendant contends the trial court erred in declining his request for a pinpoint
instruction on the meaning of “immediate danger” in connection with the CALCRIM
No. 3402 instruction on the defense of duress. But our review of the record indicates
defendant did not request a pinpoint instruction on immediate danger. Rather, the jury
informed the trial court that a juror had used a dictionary to look up the meaning of the
word “immediate” and had shared that definition with the jury. The trial court
investigated the circumstances and agreed with the parties that the juror should be

replaced with an alternate, but that there was no prejudice because the word “immediate”
was not a technical term and had the jury requested a definition of “immediate” from the
court, it would have given the jury a dictionary definition. Defendant commented that if
“any of the other jurors inquired about the ordinary meaning of the word ‘immediate,’ ”
then “I guess we can take a look at that together in here and then make a decision from
there.” The trial court responded that if the jurors needed clarification, they could send a
note. Defendant agreed. At no point did defendant request a pinpoint instruction on the
topic, and the trial court did not err in this regard.
       Defendant next contends the trial court erred in declining his request for mental
health diversion. Defendant claims he filed successive post-trial requests for mental
health diversion under section 1001.36 in February, March, and October 2019. He filed
applications to postpone proceedings in order to conduct a mental health evaluation. The
trial court denied his requests because he did not bring a timely request for diversion
under the section 1001.36 procedures prior to trial, even though he had the opportunity to
do so. The trial court said retroactive application of the statute was only available to
people with cases pending on appeal “who did not have the opportunity to request
diversion before trial” under the 2018 statute, but here the mental health diversion
procedures were “available to defendant on the day he requested trial.”
       Section 1001.36, which became effective June 27, 2018 (Stats. 2018, ch. 34, § 24),
authorizes a trial court to grant pretrial diversion, a postponement of prosecution to allow
the defendant to undergo mental health treatment, if the defendant meets specified
requirements. (§ 1001.36, subds. (a), (b), (c); People v. Frahs (2020) 

9 Cal. 5th 618

, 626-
627.) “If the defendant makes a prima facie showing that he or she meets all of the
threshold eligibility requirements and the defendant and the offense are suitable for
diversion, and the trial court is satisfied that the recommended program of mental health
treatment will meet the specialized mental health treatment needs of the defendant, then

the court may grant pretrial diversion.” (Frahs, at p. 627; see § 1001.36, subds. (a),
(b)(3) & (c)(1).) The California Supreme Court has concluded that section 1001.36
applies retroactively to persons who were convicted and sentenced prior to the time that
section 1001.36 went into effect if the judgment is not final on appeal. (Frahs, at
pp. 630-634.)
       Here, even if defendant made a request for diversion, it was untimely. The statute
states, “As used in this chapter, ‘pretrial diversion’ means the postponement of
prosecution, either temporarily or permanently, at any point in the judicial process from
the point at which the accused is charged until adjudication . . . .” (§ 1001.36, subd. (c),
italics added.) In People v. Weaver (2019) 

36 Cal. App. 5th 1103

, review dismissed
July 29, 2020, S257049, the court held, consistent with Frahs, that the mental health
diversion statute requires a defendant to apply for mental health diversion prior to trial.
(Weaver, at p. 1120.) Here, defendant committed the crimes in September 2018, several
months after the effective date of the new provisions. The jury found him guilty in 2019.
Defendant had an opportunity to request mental health diversion prior to adjudication and
failed to do so. His contention lacks merit.
       Defendant next contends the trial court erred in denying his motion for a judgment
of acquittal. In determining whether the trial court erred in this regard, we review the
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence. (People v. Snow (2003) 

30 Cal. 4th 43

, 66.) Substantial evidence is
evidence that is “reasonable, credible and of solid value -- from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) From the
evidence, we draw all inferences supporting the jury’s verdict. (People v. Olguin (1994)

31 Cal. App. 4th 1355

, 1382.) Before the judgment can be set aside for insufficient
evidence, “it must clearly appear that on no hypothesis whatever is there sufficient
substantial evidence to support the verdict of the jury.” (People v. Hicks (1982)


128 Cal. App. 3d 423

, 429.) “In determining whether the evidence was sufficient either to
sustain a conviction or to support the denial of a section 1118.1 motion, the standard of
review is essentially the same.” (People v. Hajek and Vo (2014) 

58 Cal. 4th 1144

, 1182,
abrogated on other grounds by People v. Rangel (2016) 

62 Cal. 4th 1192

, 1216.)
“Notably, however, ‘[r]eview of the denial of a section 1118.1 motion made at the close
of a prosecutor’s case-in-chief focuses on the state of the evidence as it stood at that
point.’ ” (Hajek and Vo, at p. 1183.)
       In moving for acquittal, defendant argued the prosecution failed to meet its burden
of showing that he did not act under duress or necessity. We conclude the trial court’s
denial of defendant’s motion is supported by substantial evidence. The trial court
reasonably concluded that the prosecutor supplied ample evidence of defendant’s
behavior and demeanor based on the victims’ testimony, evidencing defendant was not
acting under duress or necessity. The jury could have reasonably disbelieved defendant’s
testimony and believed the victims’ description of the circumstances. The jury was
adequately instructed on duress and necessity but nevertheless found defendant guilty.
We presume the jury understood and followed the jury instructions. (People v. Gonzales

51 Cal. 4th 894

, 940.) Accordingly, we reject defendant’s claim.
       In addition, defendant argues he became “aware a few days after the guilty verdict
that the law allowed him to offer mental health expert testimony to the jury for them to
consider whether [defendant’s] Post Traumatic Stress Disorder (PTSD) played a
significant role in the commission of Counts 1 and 2 and therefore, negated
mental/specific intent.” In a supplement to his motion for a new trial, he alleged that this
was a discovery of new material evidence entitling him to a new trial. His original
motion for a new trial was not based on this purported discovery of new evidence.
The trial court denied defendant’s motion, reasoning that defendant’s supplement to his
motion alleging the discovery of new evidence was untimely and failed on the merits

because it was not a discovery of new evidence but the belated discovery of a new legal
defense tactic. The trial court observed: “There is nothing ‘newly discovered’ about the
proffered evidence, other than defendant’s belated realization of its possible relevance.
But failure to recognize the importance of potential evidence is one of the risks defendant
was warned of in proceeding in pro per. It does not warrant granting a new trial.”
Having reviewed the record, we find no error in denying defendant’s motion for a new
         Defendant further contends the trial court committed prejudicial error by failing in
its sua sponte duty to instruct the jury with “CALJIC 8.83/8.83.1 or the equivalent” on
the use of circumstantial evidence to find guilt, because the prosecution substantially
relied on circumstantial evidence to establish his intent. His claim is meritless. Both
CALJIC No. 8.83 and No. 8.83.1 are instructions on circumstantial evidence to prove
specific intent in special circumstances murder cases. Neither instruction is applicable to
defendant’s case. Moreover, the jury was in fact instructed on the definitions and use of
direct and circumstantial evidence with CALCRIM No. 223. Accordingly, we reject
defendant’s claim.
         Defendant argues cumulative error requires reversal. “Under the ‘cumulative
error’ doctrine, errors that are individually harmless may nevertheless have a cumulative
effect that is prejudicial.” (In re Avena (1996) 

12 Cal. 4th 694

, 772, fn. 32.) Having
rejected all of defendant’s claims of error, “we discern no prejudice -- singly or
cumulatively -- that warrants reversal.” (People v. Tuggles (2009) 

179 Cal. App. 4th 339

         Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.

      The judgment is affirmed.

                                           MAURO, J.

We concur:

HULL, Acting P. J.



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