People v. Oberdiear CA2/7

Filed 10/19/20 P. v. Oberdiear CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B287387
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA087410)
v.
STEVE CLARK OBERDIEAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Upinder Kalra, Judge. Conditionally reversed
with directions.
Robert Booher, 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, and Yun K. Lee and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Steve Clark Oberdiear appeals from a judgment after a jury
convicted him of stalking (Pen. Code, § 646.9, subd. (a)),1 two
counts of making a criminal threat (§ 422, subd. (a)), and sending
a writing with intent to extort (§ 523). Oberdiear argues that the
trial court erred: (1) in allowing him to revoke his self-
represented status and having standby counsel appointed to
represent him on the condition that there would be no further
continuances; (2) in denying his motion to reopen the case prior to
the reading of the jury’s verdict; (3) in excluding evidence of
alleged witness bias; and (4) in failing to give the jury a
unanimity instruction on the section 523 intent to extort count.
Oberdiear further argues that the prosecutor committed
prejudicial misconduct during closing argument and that the case
should be remanded to determine Oberdiear’s eligibility for
mental health diversion under section 1001.36. Finally,
Oberdiear asserts the trial court violated his right to due process
by imposing assessments and a fine absent evidence of his ability
to pay.
Because the trial court prejudicially erred in failing to give
the unanimity instruction on the section 523 count, we reverse
Oberdiear’s conviction on that count. In addition, as required by
the Supreme Court’s recent decision in People v. Frahs (2020) 9
Cal.5th 618, 624 (Frahs), we conditionally reverse the remaining
convictions and the sentence and direct the trial court to conduct
a hearing on Oberdiear’s eligibility for mental health diversion
under section 1001.36. If the court does not grant diversion, or if
Oberdiear does not successfully complete diversion, the trial
1 Undesignated statutory references are to the Penal Code.
2
court shall reinstate the conviction on the stalking and making
criminal threat counts, and the People shall have 60 days to
determine whether to retry Oberdiear on the section 523 count.
If the People decide not to retry him on that count, or after the
retrial of the section 523 count, the court shall resentence
Oberdiear. In the event the trial court resentences Oberdiear,
the court shall allow Oberdiear an opportunity to request a
hearing and present evidence demonstrating his inability to pay
any applicable fine or assessments.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Los Angeles County District Attorney filed a felony
complaint against Oberdiear on May 19, 2014. The trial court
held a preliminary hearing on August 20, 2014. In an
information filed on September 3, 2014, the District Attorney
charged Oberdiear with stalking (§ 646.91, subd. (a); count 1),
attempted extortion (§§ 520, 664; count 2), two counts of making
a criminal threat (§ 422, subd. (a); counts 3 and 4), and receiving
stolen property (§ 496, subd. (a); count 5). On November 11,
2016, the trial court dismissed receiving stolen property (count
5), and on May 25, 2017, the trial court dismissed attempted
extortion (count 2) and ordered the information amended to add
sending a writing with intent to extort (§ 523; count 6).
A. Evidence at Trial
1. Oberdiear’s History with Shawn Sedaghat
Oberdiear had been close friends with Shawn Sedaghat2 for
30 years. He was the best man at Shawn’s wedding and often
2 For clarity, we refer to the Sedaghat family members by
their first names.
3
spent time with Shawn’s family. In 2002, Shawn founded PKG
Group, a cosmetics packaging company. Oberdiear worked for
PKG as an information technology (IT) consultant. In October
2011, Oberdiear and Shawn had a business dispute that ended
their personal and professional relationships. At that time,
Shawn told Oberdiear he should not return to PKG.
2. Oberdiear’s Text Messages to Shawn
In December 2013, Oberdiear made an unexpected visit to
PKG’s office. Although Shawn was not at PKG at the time,
Oberdiear asked to see Shawn’s father, Shapour, who had an
office at PKG. When Shawn’s assistant informed him that
Oberdiear was at PKG, Shawn instructed her to ask Oberdiear
to leave. While Oberdiear was visiting with Shapour, Shawn’s
assistant walked into Shapour’s office and announced that
Shapour had an appointment. Oberdiear said goodbye to
Shapour and other PKG employees, and left the office without
incident. Oberdiear later sent a text message to Shawn, stating:
“I stopped by the office to visit you, my brother. I seen Shapour
not looking good. Everyone seemed to miss me. Hope all is well
with you.” Shawn did not respond.
On January 30, 2014, Oberdiear sent a text message to
Shawn stating, “I’m taking all your cosmetics customers bitch.
My fun now starting, dude.” Shawn understood this message to
mean that Oberdiear was threatening his business. A
few months later, on April 8, 2014, Oberdiear sent another text
to Shawn, stating: “I warned you, pal, to never eff me. People
are coming for you Tony Montana. You are no longer safe in
America. I suggest you pay them what you owe me with interest
or, Shawn, you’re over.” The text message caused Shawn to feel
“very fearful.” Shawn denied altering the text messages he
4
received from Oberdiear.
3. Oberdiear’s Text Messages to Shawn’s Employee
Starting in March 2014, Oberdiear sent a series of text
messages to Jim Zaun, a PKG employee who previously had
worked with Oberdiear. Zaun knew that Oberdiear believed
Shawn owed Oberdiear money for work he had done for PKG.
Oberdiear’s text messages to Zaun included the following
statements about Shawn:
“I hate the guy for what he did to his mother. He is so
lucky to still be breathing.”
“Everyone up north wants to kill him too.”
“He has 24 hours to let me know. He, my friend, and sorry
and making it right or his life is over as he knows it. . . . I know
all your e-mails, all the customers. E-mails are loaded into the
program. Soon that e-mail blast going out.”
“Shawn make[s] horror movies. I make payback movies
and I’m making a documentary only 39.95. How to payback
someone with no friends that uses you as his best man, burns
you.”
“I have 27 years of hurtful shit Shawn has done to people to
at least more than Snowden on N.S.A. 24 hours or all the photos
of Shawn and the girls, airplane, hotels, go up and e-mails go
out.”
“I’ve waited a long time for Shawn to wise up, make right.
Once I wake up in the morning, he’s Bin Laden to me. 27 years
of pain and flame coming out. I truly feel sorry for his family.”
“Collect my million. Shawn and family no longer safe.
Should move out of USA. Last warning to make right. E-mails
going out two hours.”
5
“Shawn has two hours before his hell begins. Collection
felons coming to visit him at work, house. . . . These people are
100 percent gang members I hired. . . . Girls looking for Natasha
to give D.V.D. today of her sick husband. Will meet up on her
daily walks.”
“My daughter and her friends looking for Shawn’s boys.
It’s time they know the truth about Dad. Jim, you have no idea
what about to happen. Nowhere to run when the devil comes to
take your soul. These guys going to Shawn and Shapour’s house.
They going to wait outside. They know he is a sick gambler with
millions. Last chance or addresses get sent. Checkmate. . . . I’m
giving the collection guys this number and Shawn, Eddie, and
slowly the rest. I’m sorry you or Shawn feel I’m joking. All in!”
“I call myself PKG Group now. L.O.L. You guys are
beyond fools. Tell Shawn my uncle Ken, president of Rockwell,
gave me his license to kill given to him by the Prez of the United
States. So you have been warned. Next flight Shawn is mine.”
“I want money and lots of it or I swear to God I’m going to
get him.”
Zaun promptly shared the text messages he received from
Oberdiear with Shawn. Zaun did not alter any of the texts.
When Shawn read the messages, he perceived them to be threats
against him and his family.
4. Oberdiear’s Text Messages to Shawn’s Wife
On April 10, 2014, Oberdiear sent Shawn’s wife, Natasha,
several text messages. In the first text, Oberdiear wrote, “Letters
going out to every PKG customer with photos. Again allowing
Shawn to get away with murder is your world now. I suggest you
take your boys and run.” In another text message, Oberdiear
stated, “I’m posting all the photos of the hookers and Shawn if
6
Shawn don’t pay me in full.” In a third text message to Natasha,
Oberdiear warned, “My guys are coming for Shawn now.
Natasha, you’re not safe. Shawn has endangered you and your
boys. Once you learn he stole millions in weed and not paid
grower, I’m giving them your address too.”
As soon as Natasha received these text messages, she
shared them with Shawn. Natasha was afraid and alarmed by
the text messages because Oberdiear “knew my children well. He
knew where they went to school.” When Shawn read the text
messages Oberdiear sent to Natasha, Shawn testified, he “was
very fearful that [Oberdiear was] coming after [Shawn] and [his]
family. Shawn was aware that Oberdiear was in possession of
his mother’s gun and that Oberdiear knew where Shawn and his
family lived. Because he believed Oberdiear intended to carry
out his threats, Shawn reported the text messages to the police,
obtained a restraining order against Oberdiear, and hired a
security company to provide protection for his family.
5. Police Investigation
On May 15, 2014, a law enforcement team, including
Beverly Hills Police Detective David Williams, executed a search
warrant at Oberdiear’s residence. The police recovered
computers, Oberdiear’s cell phone, and a firearm registered to
Oberdiear’s mother. Williams used a forensic software program
to access the text messages on Oberdiear’s phone and to generate
a forensic exam report that included the text messages sent to
Shawn, Natasha, and Zaun. In generating the report, Williams
did not edit or alter any of the text messages. The software only
allowed Williams to collect information already stored on the
device; it did not permit him to add any data.
7
Williams testified that “spoofing” occurs when a person
sends a text message using a phone number that does not belong
to the actual device associated with that number. A person could
use a spoofing application to send a text message from his or her
cell phone while making it appear the text message was sent
from a different device. A person also could use a spoofing
application to impersonate both sides of a text conversation
between two cell phones. The software that Williams used to
access the text messages on Oberdiear’s cell phone would not
show if spoofing had occurred.
B. Jury Verdict and Sentencing
The jury found Oberdiear guilty of two counts of a making
criminal threat (§ 422; counts 3 and 4), one count of stalking
(§ 646.9, subd. (a); count 1), and one count of sending a writing
with intent to extort (§ 523; count 6). Prior to sentencing, the
trial court suspended the proceedings for an evaluation of
Oberdiear’s mental competence. After finding Oberdiear
competent, the trial court sentenced Oberdiear to an aggregate
state prison term of three years and eight months, composed of
the middle term of three years for sending a threatening writing
with intent to extort (count 6) and eight months for making a
criminal threat (count 4). The trial court imposed and stayed a
three-year term for stalking (count 1) under section 654 and
reduced one of the making a criminal threat convictions (count 3)
to a misdemeanor and sentenced appellant to a 364-day term.
The trial court also imposed $2,080 in assessments and a fine.
Oberdiear timely appealed.
8
DISCUSSION
A. The Trial Court Did Not Err in Conditioning the
Granting of Oberdiear’s Motion To Appoint Standby
Counsel on No Further Continuances
During the three years the case against Oberdiear was
pending, Oberdiear alternated between having counsel represent
him and representing himself. At the start of trial, Oberdiear
represented himself, with standby counsel observing. However,
immediately before opening statements, Oberdiear asked the
court to revoke his self-represented status and to appoint standby
counsel to represent him. The trial court denied Oberdiear’s
motion, but gave him the option to have standby counsel
appointed on the condition that there would be no further
continuances. Oberdiear argues the trial court’s refusal to
continue the trial to allow standby counsel to prepare violated his
constitutional rights to due process and effective representation
by forcing Oberdiear to accept unprepared counsel.
1. Trial Court Proceedings
After the People filed their felony complaint on May 19,
2014, the public defender represented Oberdiear. At the
preliminary hearing on August 20, 2014, private counsel
represented Oberdiear. When the court arraigned Oberdiear on
September 3, 2014, the public defender represented him. On
January 27, 2015, Oberdiear retained another private counsel to
represent him. On April 18, 2016, the trial court granted
Oberdiear’s request to represent himself. Because Oberdiear
stated he was unprepared, the trial court continued the trial.
When trial was set to begin on August 11, 2016, the trial
court granted Oberdiear’s motion to relinquish his self-
represented status and retain new private counsel to represent
9
him. As a result, the trial court continued the trial. On
December 27, 2016, shortly before the new trial date, Oberdiear’s
counsel informed the trial court that Oberdiear had fired him and
that Oberdiear wanted to represent himself. The following day,
Oberdiear completed a waiver of his right to counsel under
Faretta v. California (1975) 422 U.S. 806 (Faretta). The trial
court carefully reviewed the waiver with Oberdiear and warned
him of the possible consequences of his failure to abide by the
rules of the court, including that the court could terminate his
right to self-representation. The trial court advised Oberdiear, “I
probably would appoint backup counsel [for you] on this case.
And [if backup counsel] would have to step in, and that lawyer
would be at an extreme disadvantage, maybe not as prepared—
certainly not as prepared as you are.” Reading aloud several
portions of the waiver form, the trial court advised Oberdiear, “I
understand that if at some point an appointed attorney takes
over my case, that attorney may be at a disadvantage, and that
such a disadvantage will not be considered an issue on appeal.”
After Oberdiear indicated he understood, the trial court found
that Oberdiear had knowingly waived his right to counsel and
granted his request to represent himself.
On January 4, 2017, the trial court appointed Brent Merritt
to serve as standby counsel. The trial court also granted
Oberdiear’s motion to continue the trial date, stating, “I have to
tell you this is the last continuance in this case.” On May 16,
2017, Oberdiear moved for another continuance. However, the
trial court denied Oberdiear’s request and ordered the case
transferred for trial. Later that day, Oberdiear renewed his
10
request for a continuance before the trial judge.3 After reviewing
the case history and noting that the “initial trial date was set
October 23, 2014,” the trial court denied Oberdiear’s request for a
continuance. The trial court ruled: “By any reasonable
interpretation, you’ve had more than adequate time and
opportunity [to prepare] for a four count information alleging
stalking as well as attempted extortion. Any reasonable view of
this case would indicate whether you were trained or not, this is
a reasonable opportunity to be prepared.” During evidentiary
hearings over the next several days, the trial court repeatedly
admonished Oberdiear about his disruptive and disrespectful
behavior in the courtroom.
Jury selection began on May 18, 2017. On May 19, the trial
court and the parties discussed evidentiary issues. After jury
selection concluded on May 22, the trial court ordered the jury to
return the following day at 11:00 a.m. for pre-instructions and
opening statements. On May 23, 2017, at 9:00 a.m., after hearing
argument, the trial court ruled on the motions in limine. Several
rulings were adverse to Oberdiear.
At 10:58 a.m. on May 23, Oberdiear informed the trial court
that he did not want to represent himself. Noting that
Oberdiear’s request was “midtrial and late” because he made the
request after several days of evidentiary hearings and jury
selection, the trial court asked Oberdiear if he was prepared to
have standby counsel take over the case. Oberdiear responded,
“Yes, Your Honor.” After summarizing Oberdiear’s “history of
going back and forth with representation [by counsel] and pro per
status as trial dates approach,” the trial court asked Oberdiear
3 Judge Upinder Kalva.
11
why he no longer wanted to represent himself. Oberdiear replied:
“It’s because of your attitude, Your Honor, direct attitude. You
have been unfair to me. You’ve ruled not just unfairly, but you’ve
showed a clear bias toward me. And I feel the only fair chance I
have of getting a fair trial is to bring in counsel that maybe you
will be less prone to try to take advantage of.” Oberdiear stated,
“It’s just because of you, your Honor.”
In response to the trial court’s inquiry if he was ready to
proceed to trial, Oberdiear’s standby counsel, Merritt, responded
that he had not been given certain documents, but that he could
“get up to speed quickly” once he received them. The prosecutor
argued that delay in starting the trial would inconvenience the
People’s witnesses, including two witnesses who were waiting
outside the courtroom and two others who were on call. The
prosecutor further argued that Oberdiear was not only
attempting to “prolong what has already been an incredibly
protracted case,” but also that Oberdiear was responsible if
Merritt was not prepared. After reviewing the factors the court
must weigh in ruling on a midtrial motion to revoke self-
represented status, the trial court announced that its tentative
decision was to deny Oberdiear’s motion. The trial court found
“demonstrable abuse by [Oberdiear] to attempt to delay” the trial
as the “trial dates approach” based on Oberdiear’s “prior history
in the substitution of counsel and the desire to change from self-
representation to counsel representation.” The trial court also
found: “Just because you don’t like the rulings doesn’t mean you
can substitute and abandon. The reasons are, in my mind, seen
as an opportunity to divert the core integrity of the court to try to
take advantage, to disrupt and delay, which it appears from this
record, the entire record, has been the strategy of Mr. Oberdiear.”
12
The trial court further found, “The case [was] about disruption.
The case strategy of Mr. Oberdiear has been about delay, and
this would have unknown delay and a significant amount of
disruption.” Finally, the trial court found that Oberdiear was
“very sophisticated” and “smart” and that “he would be effective
enough” if he continued to represent himself. At Merritt’s
request, the trial court gave Merritt an opportunity to consult
with Oberdiear over the lunch recess to determine if Merritt
could announce ready for trial.
Following the lunch break, Merritt informed the trial court
that he was not able to “announce ready” at that time and that he
required a minimum of 10 days to prepare for trial. Merritt
stated that he could not be ready because he had not reviewed
expert reports and an investigator needed to interview witnesses.
The trial court stated to Merritt, “As standby counsel, I’m sure
you are familiar with the fact that you could be asked to step in
at any point and you kind of just have to take the shoes of the pro
per and whatever position they’re in.” Merritt stated, “But if the
court is going to indicate that because Mr. Oberdiear has already
been deemed ready and therefore stepping into his shoes I am
deemed ready, then as his standby counsel serving at the request
of the court, the answer is yes, I will take over the case today. I
will not move for a mistrial based upon my presence.” Merritt
also stated that, if the trial court ordered him to step in for
Oberdiear, he would request a continuance. The trial court
indicated it “would deny that [request for a] continuance”
because the jurors were “not qualified past June 2nd,” and a
continuance would “obstruct the orderly administration
of justice.”
13
After allowing Oberdiear another opportunity to confer
with Merritt, the trial court stated: “Mr. Oberdiear, to be clear, I
would allow this, but on the condition that . . . I will not be
granting any continuances. We will not be delaying this case any
longer. I think any delay is unjustifiable based upon the history
of this case and it is an attempt to essentially obstruct the orderly
administration of justice, and the court will not allow that. . . .
You get to make the choice. You can proceed to represent
yourself or Mr. Merritt can step in, and I will not be continuing
the matter.” Oberdiear responded that he wanted Merritt to
represent him, but that Merritt needed a continuance of “at least
. . . a couple of days to review the material before we move
forward.” The trial court reiterated that it would not grant any
request to continue the trial and that Oberdiear would have to
“unequivocally abandon [his] pro per status with the condition
there will be no continuance.” When the trial court inquired
what he wanted to do, Oberdiear replied, “I want to revoke my
Faretta rights.”
The trial court granted Oberdiear’s motion: “The court
understands that it has discretion to deny this midtrial
revocation and I’ve heard the People’s position. And I’m speaking
now to the court of appeal and to a higher court. If I deny this
midtrial request, essentially, I’m incentivizing that Mr.
Oberdiear engaged in misconduct. Because, as I’ve warned him
repeatedly, if he engages in misconduct, I will yank or revoke his
pro per status involuntarily and appoint standby counsel. It
seems to me that this court should not incentivize such behavior.
At this point he is voluntarily requesting to abandon his pro per
status knowing the fact that Mr. Merritt, although present
during all of the proceedings before this court, has indicated that
14
he is at a disadvantage. Mr. Oberdiear, being aware of that, is
still choosing to revoke his pro per status and, essentially,
shackling Mr. Merritt by putting Mr. Merritt in a situation of
having to step in the shoes that Mr. Oberdiear created, Mr.
Oberdiear would still like trained counsel, Mr. Merritt, in
particular. So I believe that although I have discretion to deny
it and that this court does see this as an opportunity to try to
build in error, create unjustifiable delay, and obstruct the orderly
administration of justice based upon the history of this case and
the conduct and misconduct of Mr. Oberdiear, I think in balance
I’m going to exercise my discretion to have trained counsel with
the limitations placed on the defense that there will be no
continuances.”
After Merritt asked for a continuance, the trial court
reiterated that it had granted the motion on the condition there
would be no further continuances. The trial court found, “A
felony trial should be resolved in a matter of months and this has
been pending for years. And most of the delay has been
attributable to the defense as far as I can tell. The defense and
solely for the defense has requested that the trial be vacated six
times. And this would be the seventh time.” The trial court
ruled, “Based upon everything I’ve indicated, the motion to
continue is denied.”
On May 24, 2017 (Wednesday) the trial court advised
Merritt that “we could go dark on Friday,” which would give him
a four-day weekend “to prepare for [Oberdiear’s] defense.” On
May 25 (Thursday) the People rested, and the trial court
continued the case until May 30 (Tuesday). On May 30,
Oberdiear rested without presenting any evidence or requesting a
continuance.
15
After the trial court instructed the jury, the jury began
deliberations on the afternoon of May 30. Shortly before noon on
the following day, the jury notified the court clerk that it had
reached a verdict. Before the jury was brought into the
courtroom, Oberdiear’s counsel informed the trial court: “This
morning I learned there was a text contained in the data
extraction off the iPhone and that this text indicates that it was
sent on August 21, 2058.” Counsel stated that he had not
previously discovered the information when he reviewed “the
hundreds and hundreds of texts in the 125-or-so-page report by
the expert.” Merritt moved to reopen the case to “allow the
defense to a lay [a] foundation” for the text message and present
it the jury to support “spoofing, which that seems consistent
with.” The People objected that they had provided the expert
report during discovery and that Oberdiear could have introduced
the entry during the presentation of evidence. The trial court
denied Oberdiear’s request to reopen.
2. Applicable Law
A criminal defendant has a right to represent himself or
herself at trial under the Sixth Amendment to the United States
Constitution. (Faretta, supra, 422 U.S. at p. 807.) A trial court
must grant a request for self-representation “‘if the defendant
knowingly and intelligently makes an unequivocal and timely
request after having been apprised of its dangers.’” (People v.
Williams (2013) 58 Cal.4th 197, 252-253.) A motion to revoke the
right of self-representation and have counsel reappointed also
must be timely and unequivocal. (People v. Frederickson (2020) 8
Cal.5th 963, 1005.) “‘Equivocation . . . may occur where the
defendant tries to manipulate the proceedings by switching
between requests for counsel and for self-representation, or
16
where such actions are the product of whim or frustration.’” (Id.
at p. 1006.)
In deciding whether to grant a motion to revoke the
defendant’s right to represent himself or herself made after trial
has commenced, the trial court must consider, along with any
other relevant circumstances: “‘(1) defendant’s prior history in
the substitution of counsel and in the desire to change from self-
representation to counsel-representation, (2) the reasons set forth
for the request, (3) the length and stage of the trial proceedings,
(4) disruption or delay which reasonably might be expected to
ensue from the granting of such motion, and (5) the likelihood of
defendant’s effectiveness in defending against the charges if
required to continue to act as his own attorney.’” (People v.
Lawrence (2009) 46 Cal.4th 186, 192.) Ultimately, however, “the
trial court’s discretion is to be exercised on the totality of the
circumstances, not strictly on the listed factors.” (Ibid.) We
review a trial court’s ruling on a motion to revoke a defendant’s
right to represent himself or herself for abuse of discretion.
(People v. Frederickson, supra, 8 Cal.5th at p. 1006; Lawrence, at
p. 193.)
A trial court also has broad discretion in deciding whether
to grant or deny a continuance. (People v. Mora and Rangel
(2018) 5 Cal.5th 442, 508; People v. Reed (2018) 4 Cal.5th 989,
1004.) In determining whether there is good cause for a
continuance, the court considers “whether the moving party has
acted diligently, the anticipated benefits of the continuance, the
burden that the continuance would impose on witnesses, jurors,
and the court, and whether a continuance will accomplish or
hinder substantial justice.” (Reed, at p. 1004; see People v.
Jenkins (2000) 22 Cal.4th 900, 1037 [“[a] showing of good cause
17
requires a demonstration that counsel and the defendant have
prepared for trial with due diligence”].) “The party challenging a
ruling on a continuance bears the burden of establishing an
abuse of discretion, and an order denying a continuance is seldom
successfully attacked.” (People v. Beames (2007) 40 Cal.4th 907,
920.) “[D]iscretion is abused only when the court exceeds the
bounds of reason, all circumstances being considered.” (Ibid; see
Jenkins, at p. 1037 [“the trial court has broad discretion to
determine whether good cause exists to grant a continuance of
the trial”].)
3. The Trial Court Did Not Err in Allowing Oberdiear
To Revoke His Self-Represented Status on
the Condition of No Further Continuances
Oberdiear’s motion to revoke his self-represented status
and have standby counsel appointed to represent him was not
timely or unequivocal. After the trial court deemed Oberdiear
ready for trial and repeatedly denied his requests for a
continuance, Oberdiear made his motion after the jury had been
sworn and with the understanding that trial was anticipated to
last approximately two weeks. When the trial court inquired
about Oberdiear’s reason for seeking to revoke his pro per status,
his response demonstrated that he was frustrated with the trial
court’s evidentiary rulings and was seeking to further delay the
proceedings. In explaining his request, Oberdiear told the trial
court: “You’ve made some unfair rulings today to exclude all of
the exculpatory evidence . . . and let in all the hearsay
evidence. . . . So with that said, Your Honor, I asked initially
that you give me more time. You said no. And all I can tell you
this is a result of that.”
18
In deciding whether to grant Oberdiear’s motion to revoke
his self-represented status, the trial court found: (1) Oberdiear
had a history of switching back and forth between self-
representation and representation by counsel; (2) Oberdiear’s
stated reason for the request was that he disagreed with the trial
court’s latest rulings; (3) the case had been pending for three
years, and a jury had been empaneled with the expectation trial
would be completed within two weeks; (4) Oberdiear’s strategy
was to disrupt and delay the proceedings; and (5) Oberdiear
appeared capable of effective self-representation. However,
rather than deny the motion outright, the trial court gave
Oberdiear the option of having standby counsel appointed, but on
the condition that the court would not grant any further
continuances. Oberdiear does not dispute that “the court could
have denied [his] request and made him continue as his own
attorney.” Instead, Oberdiear contends that the trial court “could
not simply eliminate [his] right to any continuances” when it
granted Oberdiear’s request for counsel. Oberdiear is incorrect.
In the analogous situation when a defendant makes a
midtrial motion to switch from representation by counsel to self-
representation, a trial court may condition granting such a
request on the defendant’s agreement to immediately proceed
with trial without a continuance. (See People v. Valdez (2004) 32
Cal.4th 73, 103; People v. Jenkins, supra, 22 Cal.4th at p. 1039;
People v. Clark (1992) 3 Cal.4th 41, 110.) In People v. Clark the
defendant contended the trial court “improperly conditioned its
grant of his [midtrial] Faretta motion on waiver of any necessary
continuance . . . .” (Clark, at p. 110.) In rejecting this contention,
the Court held, “Although a necessary continuance must be
granted if a motion for self-representation is granted, it is also
19
established that a midtrial Faretta motion may be denied on the
ground that delay or a continuance would be required.
[Citations.] . . . [The] trial court made clear its intent to deny
the Faretta motion as untimely if a continuance would be
necessary. . . . The Faretta motion was ultimately granted only
when defendant expressly represented he was able to proceed
without a continuance.” (Ibid.)
Further, in People v. Jenkins, supra, 22 Cal.4th 900, “the
[trial] court warned defendant that a request for a continuance
would constitute a basis for denying his motion to represent
himself, and defendant accepted pro se status on the
understanding that no additional time would be granted.” (Id. at
p. 1038.) After the court granted the defendant’s midtrial motion
to represent himself, the court denied the defendant’s request for
a continuance. In rejecting defendant’s argument that the denial
of a reasonable continuance for preparation deprived him of due
process of law, the Court held, “In the present case, in ruling on
defendant’s midtrial motion to represent himself, the court
correctly noted that it had authority to deny the motion if self-
representation required a continuance, and, in advising the
defendant of the perils of self-representation, it asked defendant
whether he understood, among other things, that he would
receive ‘no extra time for preparation.’ Defendant indicated he
understood. In addition, when defendant secured permission to
proceed pro se, the court already had denied counsel’s request for
a continuance for further investigation and preparation for the
penalty phase of the trial. Defendant was no more entitled to a
continuance when he became his own counsel than he was
entitled to a continuance at former counsel’s request.” (Id. at
p. 1039; see People v. Valdez, supra, 32 Cal.4th at p. 103 [where
20
defendant made a Faretta motion moments before jury selection
was to begin, the court “acted within its discretion in concluding
that defendant could represent himself only if he was ready to
proceed to trial without delay”].)
Relying on People v. Espinoza (2016) 1 Cal.5th 61(Espinoza), Oberdiear asserts that, once the trial court decided to
grant his motion, it also had to grant a continuance so long as
there was a reasonable basis for requesting one. According to
Oberdiear, the trial court “could not simply eliminate
[Oberdiear’s] right to any continuances.” Espinoza does not
support Oberdiear’s argument. The defendant in Espinoza “had
worked his way through seven defense counsel over the course of
nearly two and a half years before, at the last moment, deciding
to proceed pro se . . . .” (Id. at p. 77.) Before granting his Faretta
motion, the trial court advised the defendant that he “could
proceed pro se if he was ready to continue with the already
commenced trial.” (Id. at p. 81.) The trial court also warned the
defendant that, “if he chose to represent himself, he was ‘not
going to get any continuances unless they are reasonable
requests, which given the time frame we’ve given to the jurors we
need to move forward with this case. I’m not going to be
extending it beyond [the two-week] time limit I gave to the
jurors.’” (Ibid., italics omitted.) When the defendant inquired
whether, if he represented himself, he could receive a one-day
continuance to obtain materials from the public defender, the
court responded “no,” indicating that it believed the defendant
already had the necessary materials. (Ibid.)
On appeal, the defendant in Espinoza argued that the trial
court erred in denying his request for a continuance. (Espinoza,
supra, 1 Cal.5th at p. 80.) The Court disagreed: “[T]he record
21
shows the trial court did not grant defendant’s Faretta motion
and then subsequently deny defendant’s motion for a one-day
continuance. It instead acted within its discretion to condition
the grant of defendant’s Faretta motion on his ability to
immediately proceed to trial unless he had a reasonable basis for
a short continuance. When defendant suggested that if he were
granted leave to represent himself, he would need a one-day
continuance in order to obtain materials from the public
defender’s office, the court indicated it would not grant such a
continuance because it did not believe defendant’s claim that he
did not have all of the materials to which he was entitled. The
record provides no basis for us to question that determination
and we find no error in this respect.” (Id. at pp. 81-82.)
Contrary to Oberdiear’s characterization, the Court in
Espinoza did not hold that a trial court must permit a reasonable
continuance whenever it grants a Faretta motion. Rather, the
Court held that, based on the facts in that case, the trial court did
not abuse its discretion when it “told defendant that it would
condition the grant of his Faretta motion on [his] ability to
proceed with trial with only reasonable continuances that would
not extend the trial beyond the two-week estimate given to the
jury.” (Espinoza, supra, 1 Cal.5th at p. 81.) Indeed, rather than
carve out a reasonable continuance exception, the Espinoza court
reaffirmed the principle that “[a] trial court may also condition
the grant of an untimely Faretta motion on a defendant’s ability
to immediately proceed to trial.” (Id. at p. 80.)
Thus, when a defendant sought to change midtrial from
representation by counsel to self-representation, the Supreme
Court held that the trial courts can “condition the granting of the
right of self-representation on defendant’s waiver of a
22
continuance.” (People v. Jenkins, supra, 22 Cal.4th at 1039.)
Similarly, when a defendant makes a midtrial motion to revoke
his or her self-represented status and have counsel appointed for
the remainder of the trial, the trial court has the discretion to
manage an ongoing trial by conditioning the granting of the
motion on no further delay. Here, with Oberdiear’s several-year
pattern of “demonstrable abuse” and “disruption” by changing
counsel and his represented status, Oberdiear has not shown the
trial court erred by giving him the option of continuing to
represent himself or having standby counsel appointed. But, in
either event, the trial would continue without interruption.
Thus, the trial court did not abuse its discretion in indicating
that it would deny Oberdiear’s motion to withdraw his self-
represented status for all the reasons it stated and at the same
time advising Oberdiear that standby counsel could represent
Oberdiear so long as the trial was not delayed. After an
exhaustive discussion with the trial court, Oberdiear chose to
have standby counsel represent him.
The record here supports the trial court’s ruling on
Oberdiear’s motion. Indeed, Oberdiear does not challenge the
trial court’s finding that he caused most of the delay in getting
this case to trial. The trial court set this case for trial in October
2014. Because trial dates had been vacated six times at
Oberdiear’s request, the trial court found Oberdiear had engaged
in “demonstrable abuse” to attempt to delay “as trial dates
approach.” The trial court reasonably found “the strategy of Mr.
Oberdiear” has been “to disrupt and delay.” Given Oberdiear’s
history of actively seeking to disrupt and delay the proceedings,
the trial court reasonably concluded that his latest Faretta
revocation motion and request for a continuance were intended to
23
“create unjustifiable delay” and to “obstruct the orderly
administration of justice.”
In December 2016, before it granted Oberdiear’s most
recent Faretta motion, the trial court advised him that, if standby
counsel became his trial counsel, “that lawyer would be at an
extreme disadvantage.” At that time, although the trial court
granted Oberdiear’s request for a continuance, the trial court told
Oberdiear that “this is the last continuance in this case.” In May
2017, the trial court also denied Oberdiear’s two pretrial requests
for a continuance. When Oberdiear made the motion to revoke
his self-represented status, the trial court advised Oberdiear
that, while its tentative ruling was to deny his motion, standby
counsel could act as his trial counsel on the condition that the
court would grant no further continuances. The trial court also
made clear to Oberdiear that, if he chose to revoke his right to
self-representation, he should make “this decision with eyes wide
open” and “be aware of the . . . dangers and disadvantages of Mr.
Merritt stepping in at this late stage.” As the People correctly
note, Oberdiear “voluntarily chose that option; the trial court did
not order or otherwise require [him] to do so.” The trial court
also reasonably concluded that any further delay would pose
hardship to the empaneled jurors who had been prescreened for a
two-week trial; would inconvenience the witnesses, including
those who were present in court to testify that day; and would
allow Oberdiear to continue his pattern of disruption and delay.
Oberdiear also contends that, “[b]y conditioning Merritt’s
appointment on absolutely no continuances being even
considered, the trial court violated [his] constitutional rights to
due process and reasonably effective counsel.” Oberdiear argues:
“Prejudice is established by the counsel discovering a text
24
message that was dated 2058 in the cell phone documents,
evidence that would have supported [Oberdiear’s] defense that
the texts that formed the basis for all of the charges had been
spoofed.” Presumably, Oberdiear is suggesting that, had the trial
court granted Merritt’s request for a 10-day continuance, Merritt
would have discovered the “2058” text message entry on the
People’s expert report. Oberdiear’s argument, however, is
unpersuasive. Since May 2014, when the People filed the felony
complaint, this case has been based on Oberdiear’s text
messages, and Oberdiear and his various counsel had the ability
to obtain his cell phone records. Oberdiear had the People’s 125-
page expert report containing an analysis of Oberdiear’s cell
phone months before trial started. Standby counsel, appointed in
January 2017 and given the four-day weekend after the People
rested to prepare, had sufficient opportunity to review the
People’s expert report. In any event, standby counsel was
expected to be ready to act as trial counsel without delay in the
event that Oberdiear’s right of self-representation was
terminated. (See People v. Moore (2011) 51 Cal.4th 1104, 1119,
fn. 7 [“standby counsel . . . takes no active role in the defense, but
attends the proceedings so as to be familiar with the case in the
event that the defendant gives up or loses his or her right to self-
representation”]; People v. Blair (2005) 36 Cal.4th 686, 725
[“‘[s]tandby counsel’ is an attorney appointed for the benefit of
the court whose responsibility is to step in and represent the
defendant if that should become necessary”], disapproved on
another ground in People v. Black (2014) 58 Cal.4th 912, 919.)
In this case, standby counsel was stepping into the shoes of
a defendant who had repeatedly caused delay by alternating
between self-representation and representation by counsel, and
25
waited until moments before opening statements to request that
standby counsel take over the case. Oberdiear was “no more
entitled to a continuance” when standby counsel was appointed to
take over his representation than he was entitled to a
continuance when he was representing himself. (See People v.
Jenkins, supra, 22 Cal.4th at p. 1039 [no error in conditioning
grant of defendant’s midtrial Faretta motion on his waiver of a
continuance]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689
[“if the court determines the defendant’s request is merely a
tactic designed to delay the trial, the court has the discretion to
deny the continuance and require the defendant to proceed to
trial as scheduled either with his counsel or in propria persona”];
see generally People v. Reed, supra, 4 Cal.5th at p. 1004 [no error
in denial of continuance where “trial court did not act arbitrarily
in believing that any continuance would impose a significant
burden on everyone involved in the trial”]; People v. Alexander
(2010) 49 Cal.4th 846, 935 [no violation of due process or effective
representation where trial court’s denial of continuance “was
within the bounds of reason given the defense’s apparent lack of
diligence as weighed against the length of time the case had been
pending and the court’s concern that it not continue to drag on”].)
As the Supreme Court has observed, however, “not every denial
of a request for more time can be said to violate due process, even
if the party seeking the continuance thereby fails to offer
evidence. . . . Instead, ‘[t]he answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.’”
(People v. Beames, supra, 40 Cal.4th at p. 921.) “‘[B]road
discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary “insistence upon
26
expeditiousness in the face of a justifiable request for delay”
violates the right to the assistance of counsel.’” (Alexander, at
pp. 934-935.) Under these circumstances, the trial court did not
abuse its discretion or violate Oberdiear’s constitutional rights
in granting his motion to revoke his right to represent himself on
the condition that trial would proceed without delay.
B. The Trial Court Did Not Abuse Its Discretion in
Denying Oberdiear’s Motion To Reopen the Case
Oberdiear contends that the trial court erred in denying his
motion to reopen prior to the reading of the jury’s verdict.
Oberdiear claims that reopening was necessary to allow him to
present to the jury a text message entry on the People’s expert
report that supported his “spoofing” defense.
1. Background
After the jury indicated that it reached a verdict, Oberdiear
asked to reopen to present a text message entry erroneously
dated August 21, 2058. As discussed, Oberdiear’s counsel stated
that he had just discovered the entry when reviewing “the
hundreds and hundreds of texts in the 125-or-so-page report by
the expert.” The trial court denied Oberdiear’s motion: “Mr.
Oberdiear is in this position simply because he did not have
counsel. He’s had this case, he’s had discovery for years. In
regard to whether your counsel has a disadvantage because
counsel did not have a chance to go through every document,
that’s Mr. Oberdiear’s fault. It’s no one else’s. I did extend the
case. We broke early on Thursday. We broke early on
Wednesday. We took Friday off. We had a four-day holiday.
There was an opportunity for the defense to present a defense
and/or ask for further time. Yesterday you indicated you did not
need additional time and you rested. The jurors have
27
deliberated. They’ve announced that they have a verdict. If you
like, you can always file a motion for a new trial, if you get to that
stage. But your request to reopen at this stage is denied.”
2. The Trial Court Did Not Err in Denying
Oberdiear’s Motion to Reopen
“‘A “motion to reopen [is] one addressed to the [trial] court’s
sound discretion.” [Citation.] In determining whether an abuse
of discretion occurred, the reviewing court considers four factors:
“‘(1) the stage the proceedings had reached when the motion was
made; (2) the defendant’s diligence (or lack thereof) in presenting
the new evidence; (3) the prospect that the jury would accord the
new evidence undue emphasis; and (4) the significance of the
evidence.’”’” (People v. Masters (2016) 62 Cal.4th 1019, 1069;
accord, People v. Beck and Cruz (2019) 8 Cal.5th 548, 637.) Here,
the trial court acted well within its discretion in denying
Oberdiear’s motion to reopen.
First, Oberdiear made the motion at a very late stage.
When Oberdiear asked to reopen, the jury already had reached a
verdict on all counts. The jury was waiting to be called into the
courtroom for the reading of the verdict. (See People v. Funes
(1994) 23 Cal.App.4th 1506, 1520 [trial court did not abuse its
discretion in denying motion to reopen where “jury had already
been deliberating for nearly a full day before defense counsel
made his request”].)
Second, the trial court reasonably found that Oberdiear
had not been diligent in discovering the “2058” text message
entry on the People’s expert report. Since they filed the felony
complaint in May 2014, the People predicated their case on
Oberdiear’s text messages. Although he did not present any
supporting evidence, Oberdiear’s only defense, spoofing, was
28
based on the claim that the text messages did not originate from
his cell phone. The People gave Oberdiear the report analyzing
the text messages extracted from his cell phone well before trial
began. At a hearing on December 28, 2016, almost five months
before trial, the trial court directed the prosecutor to provide
Oberdiear’s investigator with a compact disc containing all “cell
phone reports.” At a May 19, 2017 pretrial hearing regarding
evidentiary issues, the prosecutor confirmed that Oberdiear had
been given a copy of the People’s 125-page forensic expert report.
Further, although Oberdiear’s counsel admitted he had reviewed
the expert’s report and that he had been standby counsel since
January 4, 2017, he did not notice the specific text message entry
in the report. “The trial court was entitled to rely on defendant’s
lack of diligence in denying the motion to reopen.” (People v.
Monterroso (2004) 34 Cal.4th 743, 779; see also People v. Jones
(2012) 54 Cal.4th 1, 67 [“no abuse of discretion in refusing to
reopen where ‘the evidence the defense sought to offer at
reopening was indisputably available during the trial’”].)
Third, given that the jury had already reached a verdict,
there was a risk it would accord the proffered evidence undue
emphasis if Oberdiear was allowed to reopen. After the People’s
witnesses denied they altered Oberdiear’s text messages,
Oberdiear did not present any evidence to support his spoofing
defense. In his closing, Oberdiear’s counsel argued the “spoofing
theory that the text messages may not have originated from
Oberdiear’s phone.” If Oberdiear was permitted to reopen his
case after the jury reached a verdict solely for the purpose of
introducing the “2058” text message entry, the jury might have
placed undue weight on this single piece of evidence once
it restarted deliberations. (People v. Funes, supra, 23
29
Cal.App.4th at p. 1521 [“‘one of the reasons underlying the
requirement of diligence is that a jury may accord undue weight
to evidence which is admitted close to the time deliberations
begin’”].)
Fourth, Oberdiear did not show the significance of the
“2058” text message entry. Oberdiear claims the incorrect date
on the text message entry was “solid and concrete evidence that
supported the theory that the text had been spoofed.” However,
Oberdiear did not make an offer of proof regarding whether an
erroneously dated text message in the People’s expert report
tended to show spoofing. Oberdiear never presented any expert
testimony or other evidence to explain how spoofing might have
occurred. It is also unclear whether the “2058” text message was
one of the threatening text messages sent to the victims, or was
one of the hundreds of other irrelevant text messages that were
retrieved from Oberdiear’s cell phone. Thus, although spoofing
was Oberdiear’s “primary defense,” Oberdiear never explained
why the single text message entry was “vital to establishing” that
spoofing occurred. (See People v. Homick (2012) 55 Cal.4th 816,
882 [no error in denial of motion to reopen made before closing
arguments where “proffered evidence was insufficiently
significant to warrant reopening the evidence”].) The trial court
did not abuse its discretion in declining to reopen the case after
the jury had reached a verdict.
Oberdiear’s reliance on People v. Newton (1970) 8
Cal.App.3d 359 and People v. Frohner (1976) 65 Cal.App.3d 94 is
misplaced. In People v. Newton, the court held that the trial
court abused its discretion in refusing to reopen to allow an
eyewitness’s prior statement to be corrected to change the word
“did” to “didn’t,” in reference to whether the witness saw a “clear
30
picture” of the defendant’s face. The witness’s eyewitness
account of the shooting “was the only direct trial evidence that
defendant was the person who fatally shot” the police officer, and
the “prosecution had vigorously emphasized the word ‘did’” in
closing argument. (Newton, at pp. 381, 384.) In People v.
Frohner, the People violated their duty to “‘undertake reasonable
efforts in good faith to locate’” an informer who was “potentially a
material witness on the issue of guilt.” (Frohner, at p. 103.)
After the prosecutor in closing argument improperly argued that
defendant failed to call the informer as a witness, the defendant
located the informer shortly before jury reached a verdict. (Id. at
p. 110.) Under these circumstances, the court held, “we must
conclude that the prosecution’s failure to make reasonable efforts
to locate [the informer] and the trial court’s refusal to allow [the
informer] to be called as a witness severely prejudiced
defendant’s case.” (Id. at p. 111.)
C. The Trial Court Did Not Err in Excluding Evidence
Concerning Shawn’s Businesses
Oberdiear argues the trial court erred in excluding
evidence that Shawn owed him money and was engaged in the
medical marijuana business because it was relevant to showing
Shawn’s bias against him. According to Oberdiear, “If Shawn
owed [Oberdiear] a large sum of money, [Shawn] would be
incentivized to spoof the texts in order to get [Oberdiear] to leave
him alone.” Oberdiear argues, “the erroneous exclusion of this
evidence violated appellant’s Sixth and Fourteenth Amendment
rights to confront the principal adverse witness, to present a
complete defense, and to a fair trial.” Oberdiear, however, did
not argue in the trial court that the excluded evidence related to
his spoofing defense.
31
1. Relevant Proceedings
At a pretrial evidentiary hearing, the People argued that
the references in Oberdiear’s text messages to Shawn’s
involvement in the medical marijuana business were irrelevant
and unduly prejudicial. Oberdiear asserted that Shawn’s
ownership of over 200 medical marijuana dispensaries under the
corporate entity Seawolf LLC was relevant because “that was our
business and work relationship and why he decided not to pay
me.” Oberdiear asserted, “that’s our direct working relationship
and I still have stock payments that I have the name Seawolf
with his signature on it.” The trial court excluded the evidence:
“The prejudicial effect outweighs any probative value. I don’t
even see what the relevance is, but the marginal relevance is
significantly outweighed by the prejudicial effect. What’s
relevant is that you had a business relationship. You want to
refer to it as Seawolf, go right ahead. But the nature of the
business, I don’t see it at all being relevant.”
The People also asked the trial court to exclude evidence
that Shawn was involved in gambling and owed money to
Oberdiear. In response, Oberdiear argued that the gambling
references in his text messages were relevant because one of his
responsibilities was to organize poker games for Shawn, but he
had not been paid for his services. Oberdiear wanted to introduce
the evidence of Shawn’s gambling “just to establish [Shawn] owes
me money.” Oberdiear also asserted the evidence that Shawn
owed him money was relevant to explain why he continued to
send text messages to Shawn after their relationship ended. The
trial court ruled the evidence was inadmissible: “The fact that
you believed, even legitimately and even if it’s true, that you were
owed a business debt is excluded. It is not a defense to the crime
32
of extortion or attempted extortion.”
Prior to the start of trial, the trial court reviewed the text
messages to determine whether redactions were appropriate
given its evidentiary rulings. In discussing one text message that
included language Shawn had “stole millions in weed and not
paid growers,” the trial court asked Oberdiear what he intended
to elicit. Oberdiear responded that there were many people who
worked for Shawn’s marijuana business who had not been paid
for their services. Oberdiear explained that he wanted to present
video evidence of “50 protesters . . . at [Shawn’s] weed store in
Sacramento that have dogs [and] that are holding signs that say
fucking pay me.” The trial court excluded evidence regarding
medical marijuana dispensaries and protests, instructing
Oberdiear, “You will not be going into the fact that there are
protests up north. . . . You have not established any relevance to
that. And any relevance would be substantially outweighed by
any probative value. It would create undue prejudice, it would
lead to confusing of the issues and it would mislead the jury as to
what is relevant.” With respect to the text message that Shawn
had “stole millions in weed,” however, the trial court told
the prosecutor that he could not simply redact the reference to
Shawn stealing weed and not paying growers without changing
the context. The People presented that text message without
redaction. The trial court further ruled, “because there was some
mention of weed in some text messages that the People are going
to offer, I will allow a little latitude that there’s some business
connections.”
During trial, Shawn testified that he was a “reserve police
officer.” Outside the presence of the jury, Oberdiear argued that
evidence of Shawn’s participation in the medical marijuana
33
business was now relevant because it was a violation of federal
law [for a police officer] to engage in the medical marijuana
business.” Oberdiear argued he should be able to examine
Shawn regarding “illegal conduct.” The trial court denied the
request, explaining that unless Oberdiear could identify a specific
law or policy that barred a reserve police officer from engaging in
the medical marijuana business, the evidence of Shawn’s
involvement in the business was not relevant.
Later in his testimony, Shawn stated that he had hired a
“security company to provide security for my family” because he
was “scared that [his family was] going to be hurt” based on
Oberdiear’s threats. Oberdiear sought permission to inquire
whether Shawn had hired security because “he was the target of
other threats” due to his business activities. At an Evidence
Code section 402 hearing, Shawn denied that he had a dispute
with anyone else concerning money or that he feared anyone
other than Oberdiear when he hired the security firm. Shawn
testified that, while he was aware of the protests at a marijuana
dispensary in Sacramento for which he had provided consulting
services, the protests were about “corporatizing medical
marijuana” and were not directed at him personally.
Following the hearing, the trial court ruled that Oberdiear
could ask Shawn if he had reason to fear anyone other than
Oberdiear, but could not inquire about the marijuana business or
the protests in Sacramento. The trial court found Oberdiear’s
proffered evidence was not relevant to show that Shawn feared
someone other than Oberdiear. Even if there was some
relevance, the trial court ruled that Oberdiear’s evidence
regarding the protests in Sacramento was inadmissible under
Evidence Code section 352. The trial court ruled: “But to have a
34
claim where there’s some protests at a business in some other
part of California and the basis of that protest was
corporatization of, his belief, of the marijuana industry, and to
suggest that that is a direct threat and he is not to be believed in
front of this jury, that . . . he actually had fear and fear to himself
or his family and he hired security, you’re going to need to make
a much stronger proof before I allow you to offer any evidence in
that area. So if you want to ask him right now does he have any
other fear for hiring security, I’ll allow you to ask that question.
But to go into this other area to try to draw a connection, you, it’s
incumbent upon you to make a much stronger offer of proof. . . .
With essentially no evidence, it’s just supposition, suspicion,
speculation, conjecture, or guesswork. And that’s not an offer of
proof of facts. And even if that was a marginal offer of proof of
admissible evidence, I find that under 352 that it would so
confuse the issue, it would be so prejudicial, it would be
inappropriate for that type of evidence under 352 to come in. On
the one hand, I don’t find it is relevant with admissible evidence.
Moreover, if it was under 352, I would exercise my discretion to
exclude it.”
2. The Trial Court Did Not Err Limiting the
Admission of Evidence Concerning Shawn’s
Business Dealings and Debt to Oberdiear
Oberdiear asserts evidence of Shawn’s indebtedness to him,
Shawn’s involvement in a medical marijuana business, and the
protests against the medical marijuana dispensary in
Sacramento, was admissible because it was relevant to show that
Shawn had a bias against Oberdiear and a reason to harm him
by spoofing his text messages. Oberdiear argues: “If Shawn
owed [Oberdiear] a large sum of money, he would be incentivized
35
to spoof the texts in order to get [Oberdiear] to leave him alone.”
Oberdiear further argues, “the depth of their contentious
relationship, which could have been informed by the extent of any
debt, could have caused Shawn to seek to harm [Oberdiear].”
Oberdiear did not, however, raise this theory of relevance before
the trial court. Instead, Oberdiear argued that the proffered
evidence was relevant because it explained: the nature of his
business relationship with Shawn; Oberdiear’s continued text
messages to Shawn after their relationship ended; Shawn’s fear
of someone other than Oberdiear; and Shawn’s possible violations
of federal law in his business dealings. Because Oberdiear never
contended the evidence was relevant to proving Shawn’s bias or
motive to fabricate the text messages, he has forfeited this
argument on appeal. (Evid. Code, § 354; People v. Loker (2008)
44 Cal.4th 691, 739 [defendant’s failure to raise specific theory of
admissibility at trial forfeited claim on review]; People v. Hart
(1999) 20 Cal.4th 546, 606 [same].) Even if it was not forfeited,
Oberdiear’s argument lacks merit.
“Only relevant evidence is admissible at trial. [Citation.]
Under Evidence Code section 210, relevant evidence is evidence
‘having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.’ A
trial court has ‘considerable discretion’ in determining the
relevance of evidence. [Citation.] Similarly, the court has broad
discretion under Evidence Code section 352 to exclude even
relevant evidence if it determines the probative value of the
evidence is substantially outweighed by its possible prejudicial
effects.” (People v. Merriman (2014) 60 Cal.4th 1, 74.) “‘A trial
court’s decision to admit or exclude evidence is a matter
committed to its discretion “‘“‘and will not be disturbed except on
36
a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’”’” (People v. Masters, supra, 62 Cal.4th at
p. 1056.) In People v. Rodrigues (1994) 8 Cal.4th 1060, the
Supreme Court held: “Under Evidence Code section 352, the trial
court enjoys broad discretion in assessing whether the probative
value of particular evidence is outweighed by concerns of undue
prejudice, confusion or consumption of time. [Citation.] Where,
as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion ‘must not be disturbed on
appeal except on a showing that the court exercised its discretion
in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.’” (Id. at p. 1124.)
In determining the credibility of a witness, the jury may
consider “any matter that has any tendency in reason to prove
or disprove the truthfulness of [the witness’s] testimony . . . .”
(Evid. Code, § 780.) “The ‘existence or nonexistence of a bias,
interest, or other motive’ on the part of a witness ordinarily is
relevant to the truthfulness of the witness’s testimony [citation],
and ‘“[t]he credibility of an adverse witness may be assailed by
proof that he cherishes a feeling of hostility towards the party
against whom he is called . . . .”’” (People v. Williams (2008) 43
Cal.4th 584, 634.) “However, [Evidence Code] section 780 does
not require that all questions relating to a witness’ credibility be
allowed on cross-examination; nor does it mandate the admission
of all evidence offered to show a motive to fabricate. [Citation.]
Evidence of a witness’ conduct must unequivocally point to a
possible motive to fabricate testimony before it is admissible.
[Citation.] Moreover, evidence of such a motive need not be
admitted where the theory behind the alleged motive to
37
fabricate is highly tenuous, speculative, conjectural or based
on ‘possibilities.’” (People v. Johnson (1984) 159 Cal.App.3d 163,
168.) “Trial judges retain ‘wide latitude . . . to impose reasonable
limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, [and] confusion of the issues
. . . .’” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
Here, the trial court reasonably concluded that evidence of
Shawn’s involvement in the medical marijuana business was not
relevant. The trial court ruled the fact that Oberdiear and
Shawn had a business relationship that ended acrimoniously was
relevant. The jury heard evidence that Shawn and Oberdiear
had a dispute that ruptured their long-term relationship.
However, the trial court found that the nature of Shawn’s
business and whether it involved marijuana was not relevant to
whether Oberdiear committed the offenses. (See People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10 [“A trial court’s exercise of
discretion in admitting or excluding evidence is reviewable for
abuse [citation] and will not be disturbed except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice”].)
Oberdiear argues that the fact that unpaid growers
protested Shawn’s marijuana business was relevant because
Shawn had “reason to prevent [Oberdiear] from communicating
to others whom Shawn might have owed money, and Shawn
could have intended to accomplish this by sending the police after
him.” Oberdiear’s argument is based on conjecture. At the
Evidence Code section 402 hearing, Shawn testified that he was
aware of protests at the medical marijuana dispensary in
Sacramento for which he had provided consulting services;
38
however, he denied the protests were directed at him or
had anything to do with the nonpayment for services. Oberdiear
did not make an offer of proof to support a theory that Shawn
wanted to silence him or prevent Oberdiear from communicating
with anyone. As stated, Oberdiear did not make an offer of proof
that Shawn, or anyone acting on Shawn’s behalf, could have
spoofed his text messages. Further, to the extent that evidence of
Shawn’s medical marijuana business had any probative value,
the trial court reasonably found it was substantially outweighed
by the risk that its admission would confuse the issues and
mislead the jury. The trial court was within its discretion in
excluding these matters. (See People v. Peoples (2016) 62 Cal.4th
718, 757 [“[t]he decision to exclude evidence ‘will not be disturbed
except on a showing [that] the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice’”].)
The trial court also reasonably exercised its discretion in
limiting the admission of evidence that Shawn allegedly owed
money to Oberdiear. As the trial court noted, whether Oberdiear
legitimately believed he was owed money was irrelevant because
it was not a defense to the charged crimes. (See People v.
Lancaster (2007) 41 Cal.4th 50, 88 [“claim-of-right defense does
not extend to the crime of extortion”]; People v. Tufunga (1999) 21
Cal.4th 935, 955 [“courts will not recognize a good faith defense
to the satisfaction of a debt when accomplished by the use of force
or fear”].) Moreover, the trial court reasonably could have
concluded that a determination whether Shawn owed money to
Oberdiear, and if so, how much, would have necessitated an
undue consumption of time and created a substantial risk of
confusing or misleading the jury. Under these circumstances, we
39
see no abuse of discretion in the exclusion of such evidence. (See
People v. Avila (2006) 38 Cal.4th 491, 584 [no error in excluding
evidence of potential witness bias where probative value “was,
at best, weak” and “was substantially outweighed by the
probability that its admission would necessitate undue
consumption of time or create substantial danger of undue
prejudice”]; People v. Hart, supra, 20 Cal.4th at p. 607 [evidence
of victim’s alleged motive to lie was properly excluded where its
admission “would have permitted the focus of the testimony to
shift away from the events leading to and involving the charged
offenses,” and the “trial court acted within its discretion in
determining that such a shift presented a substantial risk of
confusing or misleading the jury”].)
The jury heard evidence that Oberdiear and Shawn were
involved in a business dispute that pertained, at least in part,
to Oberdiear’s belief that Shawn owed him money. Shawn
admitted at trial that he and Oberdiear had a business dispute
that ended their long-term personal and professional
relationship. Furthermore, Oberdiear’s former coworker, Zaun,
testified that Oberdiear “felt that Shawn owed him money for the
work he had done with the company.” Some of the text messages
presented at trial also referenced Shawn’s alleged indebtedness,
including one in which Oberdiear warned Shawn that he should
pay “what you owe me with interest or . . . you’re over.”
The trial court’s evidentiary rulings did not violate
Oberdiear’s federal constitutional due process rights to present
a defense. As the Supreme Court has recognized, except in
unusual circumstances, “‘“the ordinary rules of evidence do not
impermissibly infringe on the accused’s [constitutional] right to
present a defense. Courts retain . . . a traditional and intrinsic
40
power to exercise discretion to control the admission of evidence
in the interests of orderly procedure and the avoidance of
prejudice.”’” (People v. Lawley (2002) 27 Cal.4th 102, 155; see
also People v. Lindberg (2008) 45 Cal.4th 1, 26 [“‘[a]pplication of
the ordinary rules of evidence generally does not impermissibly
infringe on a . . . defendant’s constitutional rights’”].) Here, the
trial court acted within its discretion in limiting the admission of
evidence on collateral issues that were substantially likely to
confuse the jury and to consume an undue amount of time.
Oberdiear has not demonstrated a violation of his constitutional
rights.
D. The Unanimity Instruction Was Erroneous and
Requires Reversal of the Section 523 Conviction
Oberdiear argues that the trial court prejudicially erred by
failing to give a unanimity instruction in connection with the
section 523 intent to extort count. He reasons that, because the
unanimity instruction referred to “this offense” without
identifying any specific count, and was given immediately after
the criminal threat count instruction, the unanimity instruction
applied only to the criminal threat counts and not to the section
523 count. The People assert that the unanimity instruction
applied to each of the counts, and even if it did not, any error was
harmless because extortion under section 523 does not require a
unanimity instruction.
1. The Unanimity Instruction
Over a several month period, Oberdiear sent text messages
to Shawn, Zaun, and Natasha. Many of them contained threats
and made demands. Under section 523, the transmission of a
41
single writing, with an intent to extort, can constitute the crime.4
During the jury instruction conference, the trial court, addressing
the prosecutor, stated, “It’s a situation where there are numerous
acts, not theories, but different acts that constitute the [offenses].
You’ve done a charging range for the [two counts of making a
criminal threat (§ 422)] as opposed to discreet dates and . . .
different acts that could constitute the extortion [§ 523]; and
different acts that could constitute the credible threat [under the
stalking count (§ 646.9(a))]. That is why I put unanimity, unless
you want to elect.” The People agreed with the trial court that
the jurors would “all have to agree that a specific statement on a
specific day was a threat or whatever it may be.” In response to
the trial court’s question whether “the People aren’t electing a
particular act,” the prosecutor stated, “Not at this time. I think I
will probably point the jury to specific statements in my closing
arguments.” At the conclusion of the conference, the trial court
4 Section 523 provides, “Every person who, with intent to
extort property or other consideration from another, sends or
delivers to any person any letter or other writing, whether
subscribed or not, expressing or implying, or adapted to imply,
any threat such as is specified in Section 519 is punishable in the
same manner as if such property or other consideration were
actually obtained by means of such threat.” Section 519 states,
“Fear, such as will constitute extortion, may be induced by a
threat of any of the following: [¶] 1. To do an unlawful injury to
the person or property of the individual threatened or of a third
person. [¶] 2. To accuse the individual threatened, or a relative of
his or her, or a member of his or her family, of a crime. [¶] 3. To
expose, or to impute to him, her, or them a deformity, disgrace, or
crime. [¶] 4. To expose a secret affecting him, her, or them. [¶] 5.
To report his, her, or their immigration status or suspected
immigration status.”
42
stated it would give “a general unanimity instruction.”
The trial court instructed the jury regarding the charged
crimes in the following order: (1) stalking, as charged in count 1
(§ 646.91, subd. (a)); (2) sending a writing with intent to extort, as
charged in count 6 (§ 523);5 and (3) making a criminal threat, as
charged in counts 3 and 4 (§ 422). Immediately after reading the
instruction on making a criminal threat, the trial court
instructed the jury with the unanimity instruction, CALCRIM
No. 3500: “The People have presented evidence of more than one
act to prove that the defendant committed this offense. You must
not find the defendant guilty unless you all agree that the People
have proved that the defendant committed at least one of these
acts and you all agree on which act he committed.” (Italics
added.)
5 The trial court instructed the jury with CALCRIM 1831:
“The defendant is charged in count 6 with sending a threatening
letter or writing with the intent to extort in violation of Penal
code section 523. [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant sent or
delivered a threatening letter or other writing to another person;
[¶] 2A. In the letter or writing, the defendant threatened to
unlawfully injure the other person or someone else; [¶] or [¶] 2B.
In the letter or writing, the defendant threatened to expose a
secret about the other person or that person’s relative or family
member the other person or someone else; [¶] AND [¶] 3. When
sending or delivering the letter or writing, the defendant
intended to use fear to obtain money or property with the other
person’s consent. [¶] The term consent has a special meaning
here. Consent for extortion can be coerced or unwilling, as long
as it is given as a result of the wrongful use of force or fear. . . . It
is not required that the intended recipient actually give the
defendant money or property. . . .”
43
Neither the People nor Oberdiear made any reference to
the unanimity instruction in closing arguments. In his closing
argument, the prosecutor referred to “a series of text messages”
and “text messages over the period of several months.” The
prosecutor did not focus on specific text messages in connection
with the section 523 count. Thus, although the prosecutor told
the court at the jury instruction conference that he would
“probably point” to specific text messages in closing argument,
the prosecutor did not make an election tying certain text
messages to the section 523 intent to extort count.
2. Applicable Law
In a criminal case, a jury verdict must be unanimous. (Cal.
Const., art. 1, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The jury also “‘must agree unanimously the defendant is guilty of
a specific crime. [Citation.] Therefore, cases have long held that
when the evidence suggests more than one discrete crime, either
the prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act.’” (People v.
Covarrubias (2016) 1 Cal.5th 838, 877-878; see People v. Jennings
(2010) 50 Cal.4th 616, 679 [“when violation of a criminal statute
is charged and the evidence establishes several acts, any one of
which could constitute the crime charged, either the state must
select the particular act upon which it relied for the allegation of
the information, or the jury must be instructed that it must agree
unanimously upon which act to base a verdict of guilty”]; People
v. Sutherland (1993) 17 Cal.App.4th 602, 611-612 [“some
assurance of unanimity is required where the evidence shows
that the defendant has committed two or more similar acts, each
of which is a separately chargeable offense, but the information
charges fewer offenses than the evidence shows”].)
44
The prosecution makes an election by “tying each specific
count to specific criminal acts elicited from the victims’
testimony,” typically in opening statement or closing argument.
(People v. Diaz (1987) 195 Cal.App.3d 1375, 1382; accord, People
v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Mayer
(2003) 108 Cal.App.4th 403, 418-419; People v. Hawkins (2002) 98
Cal.App.4th 1428, 1455.) In the absence of a prosecutor’s
election, a trial court has a sua sponte duty to give the jury a
unanimity instruction where a single crime could be based on
several possible acts. (People v. Diedrich (1982) 31 Cal.3d 263,
280-281; see People v. Crandell (1988) 46 Cal.3d 833, 874-875
[“‘[a]s long as there are multiple acts presented to the jury which
could constitute the charged offense, a defendant is entitled to an
instruction on unanimity’”]; People v. Melhado (1998)
60 Cal.App.4th 1529, 1534 [“if the prosecution shows several acts,
each of which could constitute a separate offense, a unanimity
instruction is required”].) “‘In deciding whether to give the
instruction, the trial court must ask whether (1) there is a risk
the jury may divide on two discrete crimes and not agree on
any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact
way the defendant is guilty of a single discrete crime. In the
first situation, but not the second, it should give the unanimity
instruction.’” (People v. Covarrubias, supra, 1 Cal.5th at p. 878.)
We review the trial court’s failure to give a unanimity instruction
de novo. (People v. Selivanov (2016) 5 Cal.App.5th 726, 751;
People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
3. Instructional Error
The trial court intended to give a unanimity instruction
that applied to the counts for making a criminal threat and the
45
count for intent to extort. The standard version of CALCRIM No.
3500 includes an introductory sentence to identify the specific
offenses that are subject to the unanimity instruction and the
counts to which they apply. In giving CALCRIM No. 3500,
however, the trial court omitted this introductory sentence.
The trial court also failed to pluralize the phrase “this offense” or
otherwise specify that the unanimity instruction applied to the
section 523 count. The trial court needed to make clear that the
unanimity instruction applied to the section 523 count because
the unanimity instruction immediately followed the criminal
threat instruction.
Generally, “[i]n reviewing an ambiguous instruction, we
inquire whether there is a reasonable likelihood that the jury
misunderstood or misapplied the instruction in a manner that
violates the Constitution. [Citation.] ‘A single instruction is
not viewed in isolation, and the ultimate decision on whether a
specific jury instruction is correct and adequate is determined
by consideration of the entire instructions given to the jury.’”
(People v. Covarrubias, supra, 1 Cal.5th at p. 906; see People v.
Nelson (2016) 1 Cal.5th 513, 544.)
The People contend that, because the unanimity instruction
was immediately followed by the instruction in CALCRIM No.
3515 that each count charged is a “separate crime” that required
the jury to consider each count separately and to return separate
verdicts,6 it is not reasonably likely the jury understood the
unanimity instruction applied to only one of the counts.
6 The trial court instructed, “Each of the counts charged in
this case is a separate crime. You must consider each count
separately and return a separate verdict for each one.”
46
However, there was a reasonable likelihood the jury applied the
unanimity instruction only to the criminal threat counts and not
the section 523 count. Because the trial court gave the unanimity
instruction immediately after the criminal threat instruction, the
phrase “this offense” in the unanimity instruction logically and
reasonably referred only to the immediately preceding criminal
threat counts instruction. While the trial court also instructed
the jury that “[e]ach of the counts charged” was “a separate
crime” and that it needed to “return a separate verdict” for each
count charged, the instruction on the section 523 count did not
refer to the unanimity instruction. The prosecutor also did not
tie a particular text message to the section 523 count. Therefore,
the court did not instruct the jury it must unanimously agree on
one specific text message as the writing that satisfied the
element of a “threatening letter or writing” on the section 523
count. Accordingly, the trial court erred in failing to give the
unanimity instruction in connection with the section 523 count.
4. Prejudice
Courts are divided on the prejudice standard that applies to
the failure to give a unanimity instruction. Some courts have
applied the state law standard of People v. Watson (1956) 46
Cal.2d 818, 836, and others have applied the federal
constitutional standard of Chapman v. California (1967) 386
U.S. 18, 24 (Chapman). (See People v. Hernandez, supra, 217
Cal.App.4th at pp. 576-577.) In People v. Hernandez, the court
explained why the Chapman standard was appropriate:
“[F]ederal due process requires that the prosecution convince a
jury of the defendant’s guilt of the crime beyond a reasonable
doubt. [Citation.] ‘When the trial court erroneously fails to give
a unanimity instruction, it allows a conviction even if all 12
47
jurors (as required by state law) are not convinced that the
defendant is guilty of any one criminal event (as defined by state
law). This lowers the prosecution’s burden of proof and therefore
violates federal constitutional law.’ [Citation.] Because the error
violates federal constitutional rights, the Chapman standard
applies.” (Id. at pp. 576-577.) Because the failure to give a
unanimity instruction can lower the prosecution’s burden of proof
in a criminal case, an error of federal constitutional dimension,
we apply the Chapman standard. (See People v. Curry (2007) 158
Cal.App.4th 766, 784; People v. Smith (2005) 132 Cal.App.4th
1537, 1545; People v. Wolfe (2003) 114 Cal.App.4th 177, 186;
People v. Deletto (1983) 147 Cal.App.3d 458, 472.)
The jury found Oberdiear guilty of all charges. It is
reasonable to infer that the jury rejected Oberdiear’s spoofing
defense and found that he sent all the text messages in evidence.
However, the prosecutor did not argue that every text message
Oberdiear sent constituted a threat to extort under section 523.
Nor do the People make that argument on appeal. Some jurors
may have concluded that when Oberdiear sent some of the text
messages he did not have an intent to extort through fear. Other
jurors may have concluded he sent different messages with the
intent to constitute a crime under section 523. For example,
Oberdiear sent a text message to Zuan stating: “Shawn make[s]
horror movies. I make payback movies and I’m making a
documentary only 39.95. How to payback someone with no
friends that uses you as his best man, burns you.” In another
text message to Zuan, Oberdiear more ominously threatened: “I
want money and lots of it or I swear to God I’m going to get him.”
As Oberdiear argues, “jurors could have come to different
conclusions regarding each [text message].”
48
Because a single writing sent with an intent to extort may
violate section 523, and because Oberdiear sent many text
messages to Shawn, Natasha, and Zaun, without a unanimity
instruction or an election tying a specific text message to the
count, there was no proof beyond a reasonable doubt the jury
unanimously agreed that any particular message constituted the
“threatening letter or writing” required for a section 523
conviction. For example, six jurors could have voted to convict
Oberdiear based on the first text message quoted above, while six
other jurors may have voted to convict Oberdiear based on the
second text message quoted above. Even though the jury found
that Oberdiear sent all the text messages, we cannot conclude
beyond a reasonable doubt that the jury reached a verdict based
on their unanimous agreement as to which text message
constituted the threatening writing Oberdiear sent with the
intent to extort. We therefore reverse Oberdiear’s conviction on
the section 523 count because the trial court’s error in failing to
give the unanimity instruction was not harmless beyond a
reasonable doubt.
E. The Prosecutor’s Statements in His Rebuttal
Argument Do Not Warrant Reversal of Oberdiear’s
Convictions
Oberdiear contends the prosecutor committed prejudicial
misconduct during his closing argument. In particular, he claims
the prosecutor: (1) misstated the law by suggesting that the
standard of proof beyond a reasonable doubt could be quantified,
and (2) improperly commented on Oberdiear’s failure to present
evidence to support a spoofing defense.
49
1. Closing Arguments
During his closing argument, Oberdiear’s counsel focused
on the spoofing defense. He noted the People’s expert, Williams,
had admitted that the software he used to retrieve the text
messages from Oberdiear’s cell phone would not show if spoofing
had occurred. Oberdiear’s counsel told the jury: “Now, I asked
[Williams] whether data shows up and you can look at it and say,
oh, that’s a spoofed text, and he said no. The only way to look
would be to examine the cellular telephone records for that
phone, in this case, the iPhone. So I asked him, ‘Did you examine
any telephone records from the iPhone?’ And he said, ‘No.’ That
was not his job. That was the responsibility of the investigating
officer with the Beverly Hills Police Department. But we do not
hear from the investigating officer of the Beverly Hills Police
Department. And we do not get to see any cellular telephone
records for that iPhone.”
After noting that Williams’s forensic report also showed
some variations with respect to how the retrieved text messages
were displayed, Oberdiear’s counsel argued, “Now, why is this
important? This is important because the prosecution has the
burden to show beyond a reasonable doubt. . . . And you heard
that a lot, because it’s . . . very important. And this is the type of
thing that forms the basis of reasonable doubt. That you may
believe something happened. You may believe Mr. Oberdiear
was involved in that thing. But do you believe that beyond a
reasonable doubt?”
In his rebuttal argument, the prosecutor described the
concept of reasonable doubt as follows: “Here is what reasonable
doubt is. The description. It’s an abiding conviction. I’m not
allowed to quantify that. The law doesn’t let me say, well, that
50
means it’s 65 percent or–can’t do it, and I’m not going to suggest
it. Here’s what I can tell you about reasonable doubt. It’s the
same standard of proof in every criminal case in this country. It’s
been around long before I was born. It will probably be around
long after I am gone. Reasonable doubt is not the need to
eliminate all possible doubt. Everything in life is open to some
possible or imaginary doubt.” Oberdiear’s counsel did not object
to the prosecutor’s comments regarding the burden of proof.
Later in his rebuttal, the prosecutor addressed the issue
of spoofing: “This suggestion that the text messages weren’t sent
by the defendant. There is no evidence that supports that. No
one came in, testified this phone is being used to spoof. No one
came in and testified and said, I sent those text messages from
the defendant’s phone, not the defendant. There’s no evidence to
support it. [Oberdiear’s counsel] talked about cell phone records.
He said you could get cell phone records. You could get those
from AT&T or whomever, and they would show conclusively. The
defense has the exact same subpoena power that the People do.”
Oberdiear’s counsel objected that the prosecutor’s
statement about the phone records constituted improper
argument. After the trial court overruled the objection, the
prosecutor continued: “They have every right to call any witness
that they want to come in and talk to you about the cell phone
records. And if there’s one thing that would have tended to prove
what they are suggesting, it would have been someone from
AT&T [to] come in and say, the text messages that we see on the
[screen] shots and on the forensic analysis of the phone are not
accurately reflected in the AT&T records. That didn’t happen.”
51
2. Applicable Law
a. Prosecutorial misconduct
“‘“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332;
accord, People v. Caro (2019) 7 Cal.5th 463, 510 (Caro); People v.
Bell (2019) 7 Cal.5th 70, 111; People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 305.) Where, as here, “a claim of misconduct is
based on the prosecutor’s comments before the jury, . . . ‘“the
question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an
objectionable fashion.”’” (Gonzales and Soliz, at p. 305; see Bell,
at p. 111 [prosecutor’s use of coin-toss analogy to explain
reasonable doubt standard was “problematic,” but not
misconduct, because it was not reasonably likely the jury would
have understood argument to mean they could decide case by
flipping a coin]; People v. Cortez (2016) 63 Cal.4th 101, 130-131
[prosecutor’s statement in rebuttal argument that jurors could
find proof beyond a reasonable doubt if they looked at the
evidence and concluded “‘“[they knew] what happened, and
[their] belief [was] not imaginary”’” did not constitute misconduct
because there was no reasonable likelihood jurors understood
argument to mean they could convict based on “‘nonimaginary’”
belief supported by preponderance of evidence or strong
suspicion]; cf. People v. Centeno (2014) 60 Cal.4th 659, 665, 670
52
(Centeno) [prosecutor’s use of hypothetical in closing argument
explaining concept of reasonable doubt using outline of shape of
California with incomplete and inaccurate information
constituted misconduct because it was not supported by evidence
and was misleading].) “‘A defendant’s conviction will not be
reversed for prosecutorial misconduct . . . unless it is reasonably
probable that a result more favorable to the defendant would
have been reached without the misconduct.’” (People v. Flores
(2020) 9 Cal.5th 371, 403; People v. Crew (2003) 31 Cal.4th 822,
839.)
“‘“To preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a timely and specific objection
and ask the trial court to admonish the jury to disregard the
improper argument.”’ [Citation.] A court will excuse a
defendant’s failure to object only if an objection would have been
futile or if an admonition would not have cured the harm caused
by the misconduct.” (People v. Jackson (2016) 1 Cal.5th 269, 349;
accord, People v. Fayed (2020) 9 Cal.5th 147, 204; People v. Beck
and Cruz, supra, 8 Cal.5th at p. 657; Caro, supra, 7 Cal.5th at
p. 510.) “‘Because we do not expect the trial court to recognize
and correct all possible or arguable misconduct on its own motion
[citations], defendant bears the responsibility to seek an
admonition if he believes the prosecutor has overstepped the
bounds of proper comment, argument, or inquiry.’” (People v.
Wilson (2008) 44 Cal.4th 758, 800; accord, People v. Gray (2005)
37 Cal.4th 168, 215.)
b. Ineffective assistance of counsel
To prevail on a claim of ineffective assistance of counsel, a
defendant bears the burden to show (1) his or her “‘“‘counsel’s
representation fell below an objective standard of reasonableness
53
under prevailing professional norms’”’” and (2) he or she
“‘“‘suffered prejudice to a reasonable probability, that is, a
probability sufficient to undermine confidence in the outcome.’”’”
(People v. Johnson (2016) 62 Cal.4th 600, 653; accord, Strickland
v. Washington (1984) 466 U.S. 668, 687-692; accord, People v.
Mickel (2016) 2 Cal.5th 181, 198 (Mickel).)
“On direct appeal, if the record ‘“sheds no light on why
counsel acted or failed to act in the manner challenged,”’ we must
reject the claim ‘“unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (Caro, supra, 7 Cal.5th at p. 488;
accord, Mickel, supra, 2 Cal.5th at p. 198 [“a reviewing court will
reverse a conviction based on ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel
had ‘“‘no rational tactical purpose’”’ for an action or omission”];
People v. Lopez (2008) 42 Cal.4th 960, 972 [“except in those rare
instances where there is no conceivable tactical purpose for
counsel’s actions, claims of ineffective assistance of counsel
should be raised on habeas corpus, not on direct appeal”].) We
presume “that counsel’s actions fall within the broad range of
reasonableness, and afford ‘great deference to counsel’s tactical
decisions.’” (Mickel, at p. 198; accord, People v. Bell, supra, 7
Cal.5th at p. 125 [“‘[u]nless a defendant establishes the contrary,
we shall presume that “counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy”’”].)
As the Supreme Court in Caro explained in rejecting the
defendant’s argument his counsel’s failure to object or request an
admonition as to the prosecutor’s penalty phase closing argument
constituted ineffective assistance, “This is not the rare case
54
where there ‘could be no satisfactory explanation’ for the failure
to object or request admonitions, which may have arisen from a
desire not to call attention to the allegedly faulty arguments.
[Citation.] The failure to object only rarely constitutes ineffective
representation.” (Caro, supra, 7 Cal.5th at p. 514; accord, People
v. Lopez, supra, 42 Cal.4th at p. 972 [“‘[d]eciding whether to
object is inherently tactical, and the failure to object will rarely
establish ineffective assistance’”].)
3. Oberdiear Forfeited Any Argument the
Prosecutor Misled the Jury Regarding the
Standard of Proof Beyond a Reasonable Doubt
Oberdiear argues the prosecutor committed misconduct
during his rebuttal argument by suggesting that the standard of
proof beyond a reasonable doubt could be satisfied by a 65
percent belief that he was guilty. Recognizing the likely
forfeiture of this misconduct claim because his counsel failed to
object, Oberdiear asserts that his trial counsel rendered
ineffective assistance by failing to make a timely objection to
the prosecutor’s misstatement of law and to request a curative
admonition.
The Supreme Court has explained, “‘Advocates are given
significant leeway in discussing the legal and factual merits of a
case during argument. [Citation.] However, ‘it is improper for
the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its . . .
obligation to overcome reasonable doubt on all elements.’”
(Centeno, supra, 60 Cal.4th at p. 666; accord, People v. Bell,
supra, 7 Cal.5th at p. 111; People v. Cortez, supra, 63 Cal.4th at
p. 130.) A prosecutor commits misconduct in closing argument by
implying that a lesser standard than the constitutionally
55
mandated proof beyond a reasonable doubt satisfies the People’s
burden. (Centeno, at p. 673 [prosecutor misstated burden of proof
when she “repeatedly suggested that the jury could find
defendant guilty based on a ‘reasonable’ account of the
evidence”].) A prosecutor also commits misconduct by attempting
to assign a quantitative value to the concept of reasonable doubt.
(See People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267-
1268 [using a puzzle of the Statue of Liberty composed of eight
pieces, prosecutor’s comments with the sixth piece of the puzzle
in place, “‘this picture is beyond a reasonable doubt,’” had the
effect of “inappropriately suggesting a specific quantitative
measure of reasonable doubt, i.e., 75 percent”].)
In this case, the prosecutor told the jury that he was “not
allowed to quantify” reasonable doubt and that “[t]he law doesn’t
let [him] say, well, that means it’s 65 percent,” so he was “not
going to suggest it.” Citing People v. Wrest (1992) 3 Cal.4th 1088,
1107 (Wrest), Oberdiear contends that the prosecutor’s statement
was improper because it reflected the use of a rhetorical device
known as “paraleipsis”; stating one thing by suggesting the
opposite. In Wrest, supra, 3 Cal.4th 1088, the prosecutor told the
jury in the penalty phase of a capital case that he did not have
enough time to make all of the points he wanted to make so he
had to edit some of them out. He then went on to list all of the
specific arguments that he claimed he was not making, some
of which constituted improper arguments about reasons to
impose the death penalty. (Id. at p. 1106.) Finding misconduct,
the Supreme Court held, “Although the prosecutor’s comments
here were strategically phrased in terms of what he was not
arguing, they embody the use of a rhetorical
device−paraleipsis−suggesting exactly the opposite. Repetition
56
of the statement, ‘I am not arguing X,’ strongly implied the
prosecutor was in fact asserting the validity and relevance of X,
but, for lack of time, was concentrating on other, presumably
more important topics.” (Id. at p. 1107.)
Here, although the prosecutor did not identify for the jury
all of the arguments he purportedly was going to refrain from
making about the standard of proof, we are troubled by the
prosecutor’s suggestion that the reasonable doubt standard could
be quantified, and perhaps quantified as low as 65 percent. By
mentioning “65 percent” in connection with the reasonable doubt
standard, the prosecutor came close to committing misconduct by
“dilut[ing] the People’s burden.” (Centeno, supra, 60 Cal.4th at
p. 673.) “[J]udges and advocates have been repeatedly
admonished that tinkering with the explanation of reasonable
doubt is a voyage to be embarked upon with great care.” (Id. at
p. 671.) In People v. Katzenberger, supra, 178 Cal.App.4th 1260,
while displaying a graphic to the jury, the prosecutor’s suggestion
of “a specific quantitative measure of reasonable doubt, i.e., 75
percent” constituted misconduct. (Id. at p. 1268.) However, we
do not reach the question whether the prosecutor committed
misconduct by misleading the jury about the applicable standard
of proof. Because Oberdiear’s counsel failed to object and request
a curative admonition, Oberdiear forfeited his claim of
prosecutorial misconduct. (See People v. Hoyt (2020) 8 Cal.5th
892, 942; People v. Beck and Cruz, supra, 8 Cal.5th at 657; People
v. Powell (2018) 6 Cal.5th 136, 171.) Oberdiear does not argue
that an objection would have been futile. (See Centeno, at p. 674
[“[a] prosecutor’s misstatements of law are generally curable by
an admonition from the court”].)
57
Oberdiear contends his counsel’s failure to object to the
prosecutor’s reference to “65 percent” constituted ineffective
assistance of counsel because “‘the problems with the prosecutor’s
argument were not difficult to discern.’” But affording great
deference to defense counsel, we cannot say Oberdiear’s attorney
had “‘“‘no rational tactical purpose’”’” for his failure to object.
(Mickel, supra, 2 Cal.5th at p. 198; accord, Caro, supra, 7 Cal.5th
at p. 514.) As the Supreme Court concluded in Caro, Obediear’s
attorney may have decided not to object to the prosecutor’s
statements “from a desire not to call attention to the allegedly
faulty arguments.” (Caro, at p. 514.) By objecting to the
prosecutor’s argument, Oberdiear’s counsel would have
highlighted the statement to the jury. Instead, Oberdiear’s
attorney could have made a tactical decision to rely on the jurors
following the court’s instruction that they “must follow the law as
I explained it to you” and that, “[i]f you believe that the attorneys’
comments on the law conflict with my instructions, you must
follow my instructions.” (See Centeno, supra, 60 Cal.4th at p. 675
[“‘[t]he decision facing counsel in the midst of trial over whether
to object to comments made by the prosecutor in closing
argument is a highly tactical one . . . .’ [citation], and ‘a mere
failure to object to evidence or argument seldom establishes
counsel’s incompetence’”]; People v. Stanley (2006) 39 Cal.4th 913,
965-966 [failure to request instruction at penalty phase not to
draw adverse inferences from the defendant’s failure to testify
may have reflected a tactical decision not to draw the jury’s
attention to the fact that he did not testify].)
58
4. The Trial Court Did Not Err in Ruling That the
Prosecutor Did Not Improperly Comment on
Oberdiear’s Failure To Present Evidence
Oberdiear asserts the prosecutor committed misconduct
during his rebuttal argument by commenting on Oberdiear’s
failure to introduce his cell phone records. Oberdiear’s claim of
misconduct fails.
“‘Prosecuting attorneys are allowed “a wide range of
descriptive comment” and their “‘“argument may be vigorous
as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn
therefrom.”’”’” (People v. Jackson, supra, 1 Cal.5th at p. 349.)
Further, “‘[w]e accord the prosecutor wide latitude in describing
the factual deficiencies of the defense case.’” (People v. Edwards
(2013) 57 Cal.4th 658, 740.) “‘Although a prosecutor is forbidden
to comment “‘either directly or indirectly, on the defendant’s
failure to testify in his defense,’” the prosecutor may comment
“‘on the state of the evidence, or on the failure of the defense to
introduce material evidence or to call logical witnesses.’”’”
(People v. Castaneda (2011) 51 Cal.4th 1292, 1333; accord, People
v. Thomas (2012) 54 Cal.4th 908, 945.)
Here, Oberdiear’s counsel told the jury in his closing
argument that the People had failed to introduce Oberdiear’s cell
phone records, which according to Oberdiear, would have
conclusively shown whether or not the text messages had been
spoofed. In his rebuttal, the prosecutor responded to this
argument by pointing out that Oberdiear also could have
presented that evidence, but failed to do so. In particular, the
prosecutor argued to the jury that Oberdiear had “the exact same
subpoena power” as the People and Oberdiear had “every right to
call any witness that [he] want[ed] to come in and talk to you
59
about the cell phone records.” However, Oberdiear did not call
anyone to testify about his cell phone records and whether the
text messages in evidence were consistent with those records.7
Oberdiear contends that, because “the prosecution knew
that counsel certainly did not have the time to obtain such
records due to the court erroneously denying any continuances,”
the prosecutor’s statement was “equivalent to telling the jury
that they did not see evidence of a certain fact when such
evidence had been excluded on the prosecution’s motion.” The
cases on which Oberdiear relies to support this argument, People
v. Varona (1983) 143 Cal.App.3d 566 and People v. Castain (1981)
122 Cal.App.3d 138, are inapposite. In both cases, the People
successfully obtained exclusion of certain evidence, and then
misled the jury about whether such evidence existed or what it
would have shown. (Varona, at p. 570 [after obtaining exclusion
of evidence that victim was on probation for prostitution,
prosecutor told jury in closing argument that victim was not a
prostitute “although he had seen the official records and knew
7 In overruling Oberdiear’s objection to the prosecution’s
argument, the trial court explained: “The defense rested on the
state of evidence, but there is a long line of cases that if you bring
up the People’s failure to bring in some evidence in your
argument, which you did regarding the absence of the phone
records, it is fair argument for the prosecution to point out to the
jury that the defense does enjoy the free power of the subpoena to
bring in these records. The jurors were told that neither side has
to bring in all the evidence or any particular evidence. So in
response to -- in the context of responding to your argument:
where are these phone records? It is fair game, particularly in
the manner in which [the prosecutor] made that argument, that
the defense could have brought in that.”
60
that he was arguing a falsehood”]; Castain, at p. 146 [after
prosecutor obtained exclusion of arresting officer’s multiple acts
of excessive force, prosecutor argued to jury that there was only
one such prior incident].)
In this case, the People did not seek to exclude Oberdiear’s
cell phone records. While the People did oppose Oberdiear’s
midtrial motion for a continuance, the People never argued that
Oberdiear should be precluded from introducing the cell phone
records at trial or from calling any witnesses to testify about
those records. Based on Oberdiear’s threatening text messages,
the People filed the felony complaint against Oberdiear in May
2014 and the trial commenced in May 2017. Oberdiear maintains
that his “primary defense,” spoofing, was the “heart of the case.”
According to Oberdiear, his cell phone records would have
conclusively shown whether spoofing occurred. Yet, with three
years to prepare for trial, Oberdiear did not obtain his cell phone
records to support his “primary defense.” Further, there is no
indication that the People caused Oberdiear’s failure to obtain his
cell phone records. The prosecutor’s argument constituted a fair
comment on the state of the evidence and Oberdiear’s failure to
provide identifiable evidence to support his spoofing defense.
F. Oberdiear Is Entitled to a Hearing on His Eligibility
for Mental Health Diversion
Oberdiear argues the matter should be remanded for the
trial court to consider his eligibility for mental health diversion
pursuant to section 1001.36. Oberdiear asserts that remand is
required because the statute applies retroactively and that he
meets the threshold criteria for an eligibility hearing. Based on
the Supreme Court’s decision in Frahs, supra, 9 Cal.5th 618, we
conditionally reverse Oberdiear’s convictions and sentence and
61
remand for the trial court to consider Oberdiear’s eligibility for
diversion.
1. Relevant Background
The jury convicted Oberdiear on May 31, 2017, and the
trial court sentenced him on November 13, 2017. Prior to
sentencing, Oberdiear’s counsel informed the trial court that he
was concerned about Oberdiear’s ability to understand the nature
of the proceedings and to assist in preparing for his sentencing
hearing. Counsel reported that he had formed a doubt about
Oberdiear’s mental competence based on Oberdiear’s recent
conduct “in lockup” as well as “his behavior in court” where he
“spent a great deal of time mumbling under his breath and
saying things . . . that did not logically relate to the proceeding.”
The trial court stated that it also had a “doubt” about whether
Oberdiear was presently competent, and ordered the proceedings
suspended pursuant to section 1368 for a mental competence
evaluation.
In July 2017, Dr. Gordon Plotkin, the court-appointed
psychiatrist, completed a mental competence evaluation of
Oberdiear. Plotkin found that Oberdiear “may be suffering from
a Major Mental Disease, Disorder, or Defect, but that
disorder/symptoms do not interfere with his ability to cooperate
with working with his counsel and proceeding with sentencing.”
While Dr. Plotkin was unable to confirm a diagnosis at that time,
he stated that “[i]t is entirely possible that [Oberdiear] is
suffering from some type of endogenous psychiatric illness such
as Schizophrenia.”
Prior to sentencing, the trial court also ordered a diagnostic
study for Oberdiear pursuant to section 1203.03 to determine his
suitability for probation. After evaluating Oberdiear, the
62
correctional counselor stated that his conduct at issue “seems to
stem from some sort of mental deficiency” and that he “would
benefit from psychological treatment and counseling.” The prison
psychologist who evaluated Oberdiear found that he had traits of
antisocial personality disorder and possible substance abuse
problems, but did not diagnose him with a specific mental
disorder.
2. Oberdiear Is Entitled to a Hearing on His
Eligibility for Mental Health Diversion
Effective June 27, 2018, “the Legislature enacted sections
1001.35 and 1001.36 as part of Assembly Bill No. 1810 (2017-
2018 Reg. Sess.) . . . . [Citation.] Section 1001.36 gives trial
courts the discretion to grant pretrial diversion for individuals
suffering from certain mental health disorders. (§ 1001.36, subd.
(a).)” (Frahs, supra, 9 Cal.5th at p. 626.) “The stated purpose
of the diversion statute ‘is to promote all of the following: [¶]
(a) Increased diversion of individuals with mental disorders to
mitigate the individuals’ entry and reentry into the criminal
justice system while protecting public safety. [¶] (b) Allowing
local discretion and flexibility for counties in the development
and implementation of diversion for individuals with mental
disorders across a continuum of care settings. [¶] (c) Providing
diversion that meets the unique mental health treatment and
support needs of individuals with mental disorders.’ (§ 1001.35,
subds. (a)-(c).)” (Frahs, at p. 626.)
Section 1001.36 defines “pretrial diversion” as “the
postponement of prosecution, either temporarily or permanently,
at any point in the judicial process from the point at which the
accused is charged until adjudication, to allow the defendant to
undergo mental health treatment . . . .” (§ 1001.36, subd. (c).) If
63
a defendant is charged with a qualifying offense,8 a trial court
may grant pretrial diversion if it finds all of the following: (a) the
defendant suffers from a qualifying mental disorder; (b) the
mental disorder was a significant factor in the commission of the
charged offense; (c) in the opinion of a qualified mental health
expert, the defendant’s symptoms will respond to mental health
treatment; (d) the defendant consents to diversion and waives his
or her right to a speedy trial; (e) the defendant agrees to comply
with treatment as a condition of diversion; and (f) the defendant
will not pose an unreasonable risk of danger to public safety if
treated in the community. (Id., subd. (b)(1)(A)-(F).)
If the six criteria in section 1001.36, subdivision (b)(1), are
met, and if the trial court “is satisfied that the recommended
inpatient or outpatient program of mental health treatment
will meet the specialized mental health treatment needs of the
defendant” (§ 1001.36., subd. (c)(1)(A)), the court may order
diversion into an approved mental health treatment program for
up to two years. (Id., subd. (c)(1) & (3)). If the defendant
commits an additional offense or otherwise performs
unsatisfactorily in the diversion program, the court may reinstate
the criminal proceedings. (Id., subd. (d).) “If the defendant has
performed satisfactorily in diversion, at the end of the period of
diversion, the court shall dismiss the defendant’s criminal
charges that were the subject of the criminal proceedings at the
time of the initial diversion,” and “the arrest upon which the
diversion was based shall be deemed never to have occurred . . . .”
8 A defendant may not be placed into a diversion program for
the charged offenses of murder, manslaughter, use of a weapon of
mass destruction, or certain enumerated sex offenses. (§ 1001.36,
subd. (b)(2).)
64
(Id., subd. (e).)
In Frahs, supra, 9 Cal.5th 618, the Supreme Court held
that section 1101.36 “applies retroactively to cases in which the
judgment is not yet final . . . .” (Id. at p. 624, 637.) The Court
also held that “a conditional limited remand for the trial court to
conduct a mental health diversion eligibility hearing is
warranted when . . . the record affirmatively discloses that the
defendant appears to meet at least the first threshold eligibility
requirement for mental health diversion–the defendant suffers
9
from a qualifying mental disorder (§ 1001.36, subd. (b)(1)(A)).”
(Frahs, at p. 640.) In so holding, the Court expressly rejected the
People’s contention that a defendant must demonstrate that he or
she satisfies all six threshold eligibility requirements before
remand to the trial court is proper. (Id. at pp. 637-638.) The
Court reasoned that “imposing such a high bar in the posture of
proceedings such as these would be unduly onerous and
impractical.” (Id. at p. 638.) The Court further held:
9 In Frahs, the Court affirmed the conditional reversal of
“defendant’s convictions and sentence with the following
instructions for the trial court in considering defendant’s
eligibility for diversion under section 1001.36: ‘If the trial court
finds that [defendant] suffers from a mental disorder, does not
pose an unreasonable risk of danger to public safety, and
otherwise meets the six statutory criteria (as nearly as possible
given the postconviction procedural posture of this case), then the
court may grant diversion. 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 section 1001.36, or if [defendant] does not successfully
complete diversion, then his convictions and sentence shall be
reinstated.’” (9 Cal.5th at pp. 640-641.)
65
“[R]equiring defendants to show they would meet all threshold
eligibility requirements before the appellate court may remand
the case to the trial court−which decides in the first instance
whether a defendant is eligible for diversion−would be
inconsistent with any sensible retroactive application of the
statute. That, in turn, would run counter to our usual inference
that the Legislature intends ameliorative statutes like this one to
apply as broadly as possible within the constraints of finality−an
inference that has not been rebutted here.” (Ibid.)
Here, the People argue that Oberdiear has not made a
prima facie showing of eligibility for diversion because the first
criterion requires evidence of a qualifying mental disorder,10
which “shall include a recent diagnosis by a qualified mental
health expert.” (§ 1001.36, subd. (b)(1)(A).) The People assert the
record does not contain the requisite diagnosis because Plotkin
merely opined that Oberdiear “may have a Major Mental
Disorder,” but stated he was “unable to confirm that at this
time.” We conclude that the record sufficiently demonstrates
that Oberdiear “appears to meet at least the first threshold
eligibility requirement.” (Frahs, supra, 9 Cal.5th at p. 640).
Plotkin’s section 1368 report, which was not prepared in
anticipation of a mental health diversion eligibility hearing,
indicated that Oberdiear presented with certain symptoms that
may be associated with a major mental disorder and that it is
10 A qualifying medical disorder is one “identified in the
most recent edition of the Diagnostic and Statistical Manual of
Mental Disorders, including, but not limited to, bipolar disorder,
schizophrenia, schizoaffective disorder, or post-traumatic stress
disorder, but excluding antisocial personality disorder, borderline
personality disorder, and pedophilia.” (§ 1001.36, subd. (b)(1)(A).)
66
“entirely possible” he is suffering from a “psychiatric illness such
as Schizophrenia.” The section 1203.03 report, which also was
prepared for purposes unrelated to mental health diversion,
stated that Oberdiear’s crimes in this case appear to be a
consequence of “some sort of mental deficiency,” and specifically
recommended that Oberdiear receive psychological treatment
and counseling to address “his mental health and anger issues.”
Although neither report included a definitive diagnosis by a
qualifying mental health expert, they each reflect that “there
is evidence in the record that appears to support the first of the
statute’s threshold eligibility requirements.” (Frahs, supra, 9
Cal.5th at p. 640).
Accordingly, Oberdiear is entitled to a conditional limited
remand for the trial court to conduct a mental health diversion
eligibility hearing under section 1001.36. (Frahs, supra, 9
Cal.5th at p. 640.) If the trial court exercises its discretion to
grant diversion, and if Oberdiear successfully completes
diversion, then the trial court shall dismiss the charges. (Id. at
p. 641.) If, however, the trial court determines that Oberdiear is
ineligible for diversion or declines to exercise its discretion to
grant diversion, or if Oberdiear does not successfully complete
diversion, the trial court shall reinstate his convictions on the
stalking and making a criminal threat counts and conduct the
further proceedings set forth below.
G. If the Trial Court Resentences Oberdiear, He May
Request a Hearing on His Ability To Pay Any Fine
and Assessment the Trial Court Imposes
At Oberdiear’s sentencing, the trial court imposed $120 in
court facilities assessments (Gov. Code, § 70373; $30 per count),
$160 in court operations assessments (§ 1465.8; $40 per count)
67
and a $1,800 restitution fine (§ 1202.4, subd. (b).)11 Although
Oberdiear did not object to the imposition of the assessments and
the fine or raise his inability to pay, Oberdiear asserts
that, under this court’s holding in People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), the trial court violated his federal
and state constitutional rights to due process by imposing the
assessments and fine without inquiring about his ability to pay.
We conclude that, if the trial court resentences Oberdiear, he
should have an opportunity on remand to request a hearing and
present evidence to establish his inability to pay the amounts the
trial court imposes.
1. Dueñas and Its Progeny
In Dueñas, supra, 30 Cal.App.5th 1157, this court held that
it violated due process under both the United States and
California Constitutions to impose a court operations assessment
by section 1465.8 or the court facilities assessment mandated by
Government Code section 70373, neither of which is intended to
be punitive in nature, without first determining the convicted
defendant’s ability to pay. (Dueñas, 30 Cal.App.5th at p. 1168;
accord, People v. Belloso (2019) 42 Cal.App.5th 647, 654-655
(Belloso), review granted Mar. 11, 2020, S259755.) A restitution
11 The trial court explained its calculation of the restitution
fine: “He’s ordered to pay a restitution fine of $1800. The court
utilizes the formula as outlined in Penal Code section
1202.4(b)(2), $300 multiplied by the number of years on the
principal term which is three years. That’s $900 multiplied by
the felony convictions that were not subject to being stayed
pursuant to section 654. That’s count 6, count 4. That’s two
felony convictions. That equals $1800.”
68
fine under section 1202.4, subdivision (b), in contrast, is intended
to be, and is recognized as, additional punishment for a crime.
(Dueñas, 30 Cal.App.5th at p. 1169; Belloso, supra, 42
Cal.App.5th at p. 655.) Section 1202.4, subdivision (c), provides a
defendant’s inability to pay a restitution fine may not be
considered a “compelling and extraordinary reason” not to impose
a restitution fine; inability to pay may be considered “only in
increasing the amount of the restitution fine” above the minimum
required by statute. To avoid the serious constitutional question
raised by imposition of such a fine on an indigent defendant, we
held that “although the trial court is required by . . . section
1202.4 to impose a restitution fine, the court must stay the
execution of the fine until and unless the People demonstrate
that the defendant has the ability to pay the fine.” (Dueñas,
supra, 30 Cal.App.5th at p. 1172, accord, Belloso, supra, 42
Cal.App.5th at p. 655.)
2. Oberdiear May Request a Hearing
Oberdiear requests we remand the case for the trial court
to conduct an ability-to-pay hearing in accordance with our
opinion in Dueñas. The People contend Oberdiear forfeited the
issue by not raising it at trial. Although recognizing we have
rejected similar forfeiture arguments in the past (see People v.
Castellano (2019) 33 Cal.App.5th 485, 489 [“[w]hen, as here, the
defendant’s challenge on direct appeal is based on a newly
announced constitutional principle that could not reasonably
have been anticipated at the time of trial, reviewing courts have
declined to find forfeiture”]; see generally People v. Brooks (2017)
3 Cal.5th 1, 92 [“‘[r]eviewing courts have traditionally excused
parties for failing to raise an issue at trial where an objection
would have been futile or wholly unsupported by substantive law
69
then in existence’”]), the People argue forfeiture should apply in
this case because, at the time of his sentencing hearing,
Oberdiear had an existing right under section 1202.4, subdivision
(d), to challenge imposition of a restitution fine above the $300
statutory minimum.
Although Oberdiear could have challenged the trial court’s
imposition of the restitution fine to the extent it was above the
statutory minimum, “neither forfeiture nor application of the
forfeiture rule is automatic.” (People v. McCullough (2013) 56
Cal.4th 589, 593; accord, In re S.B. (2004) 32 Cal.4th 1287, 1293,
superseded in part by statute as stated in In re S.J. (2008) 167
Cal.App.4th 953, 962.) Here, neither the trial court nor
Oberdiear’s counsel had the benefit of our decision in Dueñas,
and the court understandably did not advise Oberdiear he had a
due process right to argue he did not have the ability to pay the
fine and assessments imposed. Because we must remand this
case in any event to permit the trial court to resolve other issues,
if the trial court resentences Oberdiear, the court shall allow
Oberdiear an opportunity to request a hearing and present
evidence demonstrating his inability to pay. (Cf. In re S.B., at
p. 1293 [the purpose of the forfeiture rule “is to encourage parties
to bring errors to the attention of the trial court, so that they may
be corrected”].)
DISPOSITION
We reverse Oberdiear’s conviction on count 6 for intent to
extort. We conditionally reverse the remaining convictions and
the sentence and direct the trial court to conduct a hearing on
Oberdiear’s eligibility for mental health diversion under section
1001.36. If the court determines Oberdiear qualifies for
diversion, then it may grant diversion. If Oberdiear successfully
70
completes diversion, then the court shall dismiss the charges. If
the court determines Oberdiear is ineligible for diversion or
declines to exercise its discretion to grant diversion, or if
Oberdiear does not successfully complete diversion, the trial
court shall reinstate the convictions on the stalking and making a
criminal threat counts, and the People shall have 60 days to
determine whether to retry Oberdiear on the section 523 count.
If the People decide not to retry him on that count, or after the
retrial of the section 523 count, the court shall resentence
Oberdiear. In the event the trial court resentences Oberdiear,
the court shall allow Oberdiear an opportunity to request a
hearing and present evidence regarding his inability to pay any
fine or assessment the court imposes. If the court determines
Oberdiear does not have the ability to pay the restitution fine,
the court must stay its execution.
*
DILLON, J.
We concur:
SEGAL, Acting P. J. FEUER, J.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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