Filed 5/13/14 P. v. Sims CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B244905

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA396843)
         v.

KEITH SIMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Perry, Judge. Reversed.
         Mark S. Devore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
                                            ——————————
       Defendant was convicted by a jury of three counts of making criminal threats
against his wife Yuliis Keaton and stepson Tamajae Lewis (Pen. Code, § 422, subd. (a))1
(counts 1, 6, 7), one count of assault with a deadly weapon against Keaton (§ 245,
subd. (a)(1)) (count 2), and one count of stalking against Keaton (§ 646.9, subd. (a))
(count 5). The jury found true that defendant personally used a knife on counts 1 and 2,
and defendant admitted having suffered three prior prison terms (§ 667.5, subd. (b)).
       Defendant argues on appeal that (1) the trial court erred in admitting evidence of
his prior stalking conviction under Evidence Code section 1109; (2) his Sixth Amendment
rights under the Confrontation Clause were violated by the admission of the victim’s
testimonial hearsay evidence to establish counts 1 and 2; (3) the trial court erred in failing
to instruct on the lesser included offense of attempted criminal threats on count 6; (4) the
true finding and sentence on the weapons enhancement attached to count 2 must be
stricken; (5) the trial court erred when it refused defendant’s request to conduct a
Marsden2 hearing; and (6) he did not knowingly waive his right to trial on his prior prison
convictions alleged under section 667.5, subdivision (b). We reverse the judgment to
permit the court to conduct a Marsden hearing. We recognize that after the trial court
holds an appropriate Marsden hearing on remand, the judgment could be reinstated, and
we thus consider defendant’s remaining contentions.
             FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       1.       Defendant’s November 2006 Stalking Conviction
       The parties stipulated that on November 17, 2006, defendant was convicted of
stalking Kerra Miller in violation of section 646.9, subdivision (a).
       2.       Events Occurring in 2009
       During the summer of 2009, defendant, Keaton, and minors Tamajae Lewis (who
is defendant’s stepson) and Kyree (who is defendant’s son) were living on Hoover Street.


       1   All statutory references are to the Penal Code unless otherwise indicated.
       2   People v. Marsden (1970) 2 Cal.3d 118.

                                               2
One day, Keaton wanted to smoke a cigarette. Tamajae went across the street to get a
cigarette from a friend’s mother, and gave Keaton the cigarette. When defendant saw it,
he started hitting Keaton and threw her to the ground. Keaton told defendant to get off
her, but defendant continued to hit her with his fists. Tamajae ran to the kitchen and got a
knife and stabbed defendant in the back. Defendant threatened to kill Tamajae. While
they lived on Hoover Street, defendant often would hit Tamajae.
       During the summer of 2009, Tamajae ran away to his aunt’s house because
defendant was always “making insults” and fighting. Tamajae moved back to his
mother’s home, now on Western Avenue, in December 2010. At the time, defendant was
not living there. After about eight months, defendant came back, and the violence against
Keaton continued.
       3.     Incident of September 2011
       Tamajae, who at the time was 13 years old and living with Keaton and his half-
brother Kyree on Western Avenue, came home from school and observed that defendant
and Keaton had been consuming alcohol. Defendant was in the living room and holding a
page torn out of Keaton’s diary that he was reading on the phone. Defendant was very
angry. Keaton and defendant were arguing because defendant had read in Keaton’s diary
that she had been seeing another man.
       Keaton went to take a shower. When she came out of the shower, defendant went
into the bedroom and closed the door. Tamajae heard the bed squeaking and heard
Keaton say, “‘get off me’” and “‘[l]et me go.’” Tamajae heard defendant say, “shut up”
and that he was going to cut Keaton’s “privates” with a CD. Tamajae, who was in the
hallway outside the bedroom, yelled at defendant, “Get off my mom or I’m going to jack
you up.” Keaton opened the door to her bedroom and Tamajae could see she was crying.
Defendant had a CD in his hand and looked “mad and confused.” Tamajae ran into his
bedroom. He could hear defendant through the closed door “cussing” at him. Defendant
stated that if Tamajae came out of his room, defendant would “whoop [his] ass.”
Defendant sounded angry, and threatened to have a gang come after Tamajae.


                                             3
       Tamajae was afraid defendant would actually beat him and send a gang after him,
and remained in his room with the door locked until the next day, and would not come out
even for his uncle who wanted to take Tamajae to a church activity. Tamajae finally
emerged from his room when Keaton told him to pack some clothes. As Keaton, Tamajae
and Kyree drove away, defendant tried to get in front of their car. They went to
Tamajae’s grandmother’s house and later to Tamajae’s aunt Evalynne Moyo’s house.
Tamajae had seen defendant hit his mother before.
       4.     Incident of November 4, 2011
       On November 4, 2011 about 11:00 p.m., Officer Martin Beck responded to a
residence on Western Avenue, about half an hour after receiving a radio call of a
disturbance. Gaell Keaton, Keaton’s mother, had called 911 in response to a voicemail
message she received from Keaton and sent police to Keaton’s house on Western. Moyo,
Keaton’s sister, had called Gaell and then gone to Keaton’s house. Moyo met the police
when they arrived.
       Upon first arriving on the scene, Officer Beck spoke to Moyo, who was on the
sidewalk in front of the house next door. Moyo saw that Keaton was crying, and saw
defendant behind the screened security door. She heard police telling defendant to open
the door. Police asked Moyo to call Keaton out of the house. Officer Beck observed
Keaton run outside the front door of the residence. She was “crying and hysterical.”
Keaton told Officer Beck that defendant put a knife to her throat and stated he was going
to kill her, and that she was fearful for her life. In Officer Beck’s estimation, it took
about 10 to 15 seconds for Keaton to make those statements.
       Officer Beck knocked on the front door of the residence. He could see through the
front door screen that defendant was standing inside, holding a knife. Officer Beck
ordered defendant to drop the knife. Defendant stated he was going to kill himself.
Officer Beck again ordered defendant to drop the knife, but defendant ran out the back of
the house. Officer Beck called for backup. Police set up a full perimeter of the area,
called in an airship, and conducted a search, but were unable to apprehend defendant.


                                               4
       On January 22, 2012, police apprehended defendant at the Western residence.
       The information filed June 8, 2012, charged defendant as follows: count 1,
making criminal threats in violation of section 422, subdivision (a) (Nov. 4, 2011 threat to
kill Keaton); count 2, assault with a deadly weapon, a knife, in violation of section 245,
subdivision (a)(1) (Nov. 4, 2011 assault upon Keaton with a knife); count 5, stalking in
violation of section 646.9, subdivision (a) (following and harassing Keaton between
Sept. 1, 2011 and his arrest in Jan. 2012); count 6, making criminal threats in violation of
section 422, subdivision (a) (Sept. 2011 threat to kill Tamajae); and count 7, making
criminal threats in violation of section 422, subdivision (a) (Sept. 2011 threats against
Keaton).3
       The jury convicted defendant on counts 1, 2, 5, 6, and 7, and found the knife use
allegations true. The trial court sentenced defendant to the upper term of five years on
count 5, the base term, eight months (one-third the midterm of 24 months) on count 6, to
run consecutively to the sentence on count 5, and further imposed one-year consecutive
sentences for each of the three prior prison term allegations, for a total commitment of
eight years eight months, with 544 days credit for time served. The court imposed and
stayed sentence pursuant to section 654 the remaining counts, as follows: on count 1, the
upper term of three years plus an additional year for the weapon enhancement; on count 2,
the upper term of four years plus an additional year for the weapon enhancement; and on
count 7, the upper term of three years.
                                      DISCUSSION
I.     Admission of Defendant’s November 2006 Prior Conviction for Stalking
       Defendant contends the trial court erred in admitting under Evidence Code section
1109 the propensity evidence that he had suffered a prior stalking conviction in


       3 The information also alleged as count 3 criminal threats (§ 422) made against
Keaton committed on January 22, 2012 and as count 4 assault with a deadly weapon
(§ 245, subd. (a)(1)) against Keaton committed on January 22, 2012. Those counts were
dismissed during trial.

                                              5
November 2006 because the conviction was more than five years older than the facts
underlying the current offense. Respondent argues that while Evidence Code section
1109 does not apply to defendant’s prior conviction due to the definitions of the statute
and the age of the evidence, the evidence was admissible under Evidence Code section
1101, subdivision (b) to prove defendant’s intent to create fear in his victims.
       A.     Factual Background
       Before trial, the prosecution sought to introduce evidence of defendant’s prior
stalking conviction of November 17, 2006. The prosecution intended to use the
conviction as propensity evidence under Evidence Code section 1109, but did not intend
to call any witnesses (including the victim, Kerra Miller) or delve into the underlying
facts. Defendant objected to its admission, contending that the prosecution must
introduce the substance of the prior act, and could not introduce just the fact of
conviction. The court observed that People v. Ogle (2010) 185 Cal.App.4th 1138
determined that stalking is an act of domestic violence within the meaning of Evidence
Code section 1109, but that the court was required to make a determination under
Evidence Code section 352 and consider corroboration and remoteness in time;
furthermore, under the Family Code section 6211 definition of “‘[d]omestic violence,’”
the act was inadmissible if the act occurred more than five years before the charged
offense. The court stated it would admit the prior conviction solely with respect to the
date of the conviction, the nature of the conviction, and the name of the alleged victim.
The court further observed that propensity evidence in cases like the case before it was
“extremely helpful and relevant” and concluded the probative value outweighed any
potential prejudice given the limited information that would be given to the jury.
       B.     Discussion
       Evidence Code section 1109 provides “in a criminal action in which the defendant
is accused of an offense involving domestic violence, evidence of the defendant’s
commission of other domestic violence is not made inadmissible by Section 1101 if the
evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).)


                                              6
Further, section 1109, subdivision (d)(3) provides, “‘[d]omestic violence’ has the

meaning set forth in Section 13700 of the Penal Code.[4] Subject to a hearing conducted
pursuant to Section 352, which shall include consideration of any corroboration and
remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section

6211[5] of the Family Code, if the act occurred no more than five years before the
charged offense.” Evidence Code section 1109, subdivision (e) prohibits the admission
of prior bad act evidence that is more than 10 years old. Thus, the evidence is admissible
if the domestic violence as defined in section 13700 is not more than 10 years old, or if
the domestic violence as defined in Family Code section 6211 is not more than five years
old.
       In People v. Ogle, supra, 185 Cal.App.4th 1138, the defendant was convicted of,
among other things, criminal threats. On appeal, he challenged admission of evidence of
past misconduct. The court found evidence that the defendant had previously stalked the
victim was “indisputably admissible under [Evidence Code] section 1101, subdivision (b)


       4 Section 13700 provides in relevant part at subdivision (b), “‘Domestic violence’
means abuse committed against an adult or a minor who is a spouse, former spouse,
cohabitant, former cohabitant, or person with whom the suspect has had a child or is
having or has had a dating or engagement relationship.” Subdivision (a) provides that
abuse is defined as “intentionally or recklessly causing or attempting to cause bodily
injury, or placing another person in reasonable apprehension of imminent serious bodily
injury to himself or herself, or another.” Section 13700 does not define abuse to include
stalking as defined in section 646.9.
       5 Section 6211 of the Family Code provides in relevant part, “‘Domestic violence’
is abuse perpetrated against any of the following persons: [¶] (a) A spouse or former
spouse, [¶] (b) a cohabitant or former cohabitant,” or a person with whom the defendant
has had a dating relationship or a child. (Fam. Code, § 6211, subds. (c), (d).) “Family
Code section 6203, subdivision (d) defines ‘[a]buse’ to include ‘engage[ing] in any
behavior that has been or could be enjoined pursuant to Section 6320.’ . . . Section 6320
authorizes the court to enjoin a party from ‘stalking, threatening . . . harassing, [and]
telephoning,’ the other party. Thus, stalking a former spouse is domestic violence for
purposes of section 1109 as defined by Family Code section 6211.” (People v. Ogle,
supra, 185 Cal.App.4th at p. 1144.)

                                             7
for the nonpropensity purpose of proving [the defendant’s] intent and the sustained nature
of his victim’s fear, both of which were elements of the charged criminal threats offense.”
(Id. at p. 1143.) Concluding that stalking was a form of domestic violence, the court
found the evidence was also admissible under section 1109. (Ogle, at p. 1144.)
       Here, as respondent concedes, the prior conviction would be admissible only with
respect to the offenses occurring before November 2011 because such offenses would fit
within the Family Code definition and time limits; the section 13700 definition of
domestic violence does not include stalking. More importantly, the record does not
indicate the relationship Kerra Miller had to defendant such that we can conclude the
victim would fit the victim definitions of section 13700 or Family Code section 6211.
       In order for the prior conviction to be admissible, we turn to other sections of the
Evidence Code. Evidence Code section 1109 states that it does not preclude the use of
any other Evidence Code section governing the introduction of evidence. (Evid. Code,
§ 1109, subd. (c).) Thus, although evidence that a defendant committed misconduct other
than that currently charged is generally inadmissible to prove he or she had a propensity
to commit the charged crime (Evid. Code, § 1101, subd. (a)) such evidence is admissible
if it is relevant to prove, among other things, intent, knowledge, identity, motive, or the
existence of a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Ewoldt
(1994) 7 Cal.4th 380, 400.) “When reviewing the admission of evidence of other
offenses, a court must consider: (1) the materiality of the fact to be proved or disproved,
(2) the probative value of the other crimes evidence to prove or disprove the fact, and
(3) the existence of any rule or policy requiring exclusion even if the evidence is
relevant.” (People v. Fuiava (2012) 53 Cal.4th 622, 667.) Even if other crimes evidence
is admissible under Evidence Code section 1101, subdivision (b), it should be excluded
under Evidence Code section 352 if its probative value is substantially outweighed by
undue prejudice. (People v. Thomas (2011) 52 Cal.4th 336, 354.) We review the trial
court’s evidentiary ruling for abuse of discretion. (People v. Edwards (2013) 57 Cal.4th
658, 711.)


                                              8
       Here, the evidence of stalking against a different victim, was admissible to show
defendant’s intent to inspire fear in his victims. Stalking is an offense that requires a
similar intent as criminal threats: the perpetrator must intend to “place [the victim] in
reasonable fear for his or her safety, or the safety of his or her immediate family.”
(§ 646.9.) As a result, the evidence was highly probative on this issue and was minimally
prejudicial because the facts of the underlying conviction were not delved into.
II.    Admission of Keaton’s Statement That Defendant Had a Knife and Had
Threatened to Kill Her
       Defendant argues that the admission of Keaton’s out-of-court statement made to
Officer Beck while outside the Western Avenue residence was testimonial in nature and
thus violated his Sixth Amendment confrontation clause rights. Respondent contends the
statement was not testimonial because it was spontaneous and made during an ongoing
emergency.
       A.     Factual Background
       At trial, defendant argued that Keaton’s statement should be excluded because it
was testimonial: the timeline indicated the 911 call had come in half an hour earlier;
Keaton’s statement was made in the past tense; and when the statement was made, Keaton
was no longer in any immediate danger. The court responded that “[s]he is crying. She is
hysterical. Her husband put a knife to her throat. She is fearful for her life. The man still
has a knife in his hand when the officers go to the house. [¶] It’s clear to me it’s an
ongoing situation. This was not testimonial in the court’s view. I will allow the
evidence.”
       B.     Discussion
       The confrontation clause provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const.,
6th Amend.) The phrase “witnesses against him” is not limited to in-court witnesses, but
also applies to the admission of hearsay statements. (Crawford v. Washington (2004) 541
U.S. 36, 50–51 [124 S.Ct. 1354, 158 L.Ed.2d 177].) The object of the confrontation


                                              9
clause is to “ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the trier
of fact.” (Maryland v. Craig (1990) 497 U.S. 836, 845 [110 S.Ct. 3157, 111 L.Ed.2d
666].)
         In Crawford v. Washington, supra, 541 U.S. 36, the United States Supreme Court
overruled Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597], which
had allowed out-of-court statements to be admitted at trial upon a showing of sufficient
indicia of reliability. (Crawford, at pp. 60–67.) The Supreme Court concluded that with
regard to nontestimonial hearsay, the Roberts approach was acceptable; such statements
remain subject to state hearsay law and may be exempted from confrontation clause
scrutiny entirely. (Crawford, at p. 68.) But where testimonial evidence is involved, “the
Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” (Ibid.) The Supreme Court left for another day any
effort to spell out a comprehensive definition of “testimonial.” (Id. at p. 68.) However, it
did state that testimonial statements are “‘statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” (Id. at p. 52.) The court stated that “at a minimum” the
term “testimonial” applies “to police interrogations.” (Id. at p. 68.)
         In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224],
the Supreme Court elaborated on what constitutes testimonial statements to “determine
more precisely which police interrogations produce testimony” subject to the
confrontation clause. (Id. at p. 817.) In Davis, the trial court admitted into evidence a
recording of the statements made by a domestic violence victim in response to a 911
telephone operator’s questions, including circumstances at the house at the time of the
call, the identity of the perpetrator, what he was doing, why he was at the house, whether
he was armed, and a description of the assault. (Id. at pp. 817–818.) The Supreme Court
concluded that the confrontation clause applied only to testimonial hearsay: “Statements
are nontestimonial when made in the course of police interrogation under circumstances


                                              10
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” (Id. at p. 822.) Interrogations “solely directed at establishing
the facts of a past crime, in order to identify (or provide evidence to convict) the
perpetrator” are clearly testimonial, “whether reduced to writing signed by the declarant
or embedded in the memory (and perhaps notes) of the interrogating officer.” (Id. at
p. 826.) Interrogation during a 911 call is not testimonial because it is not designed
primarily to establish or prove some past fact but to describe current circumstances
requiring police assistance. (Id. at p. 827.) “We conclude from all this that the
circumstances of [the victim’s] interrogation objectively indicate its primary purpose was
to enable police assistance to meet an ongoing emergency. She simply was not acting as a
witness; she was not testifying. What she said was not ‘a weaker substitute for live
testimony . . . .’” (Id. at p. 828.)
       More recently, the United States Supreme Court considered statements made by a
victim “to police officers who discovered him mortally wounded in a gas station parking
lot” and who did not know the perpetrator’s location. (Michigan v. Bryant (2011) __ U.S.
__ [131 S.Ct. 1143, 1150, 1156, 179 L.Ed.2d 93].) The court held that the statements
were not testimonial and their admission did not violate the confrontation clause because
the circumstances “objectively indicate[d]” that “the ‘primary purpose of the
interrogation’ was ‘to enable police assistance to meet an ongoing emergency.’” (Id. at
p. 1150.) The court observed that “the most important instances in which the
[Confrontation] Clause restricts the introduction of out-of-court statements are those in
which state actors are involved in a formal, out-of-court interrogation of a witness to
obtain evidence for trial. [Citation.]” (Id. at p. 1155.) “When . . . the primary purpose of
[a police] interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to
create a record for trial and thus is not within the scope of the [Confrontation] Clause.”


                                             11
(Ibid.) In reaching its conclusion, Michigan v. Bryant established a “primary purpose”
test. The “basic objective of the Confrontation Clause” is to “prevent the accused from
being deprived of the opportunity to cross-examine the declarant about statements taken
for use at trial.” (Ibid.) Where “a statement is not procured with a primary purpose of
creating an out-of-court substitute for trial testimony,” “the admissibility of a statement is
the concern of state and federal rules of evidence, not the Confrontation Clause.” (Ibid.)
“The inquiry is . . . objective because it focuses on the understanding and purpose of a
reasonable victim in the circumstances of the actual victim . . . .” (Id. at p. 1161.)
       Here, Keaton’s statements were not testimonial within the meaning of Crawford v.
Washington, supra, 541 U.S. 36 and Davis v. Washington, supra, 547 U.S. 813 and thus
did not violate defendant’s Confrontation Clause rights. The circumstances under which
her statement was made indicated that she was trying to explain to the police the
dangerousness of the situation in which she found herself, and these circumstances
constituted an “ongoing emergency.” Thus, her statement was not made for the purpose
of substituting for an in-court statement, but for the purpose of warning Officer Beck that
defendant was armed and dangerous. As a result, we find no error.
III.   Lesser Included Instruction On Criminal Threats
       Defendant contends the trial court erred in refusing to instruct on the lesser
included offense of attempted criminal threats against Tamajae in count 6. He points to
Tamajae’s preliminary hearing testimony that defendant’s threats “really didn’t scare me”;
thus, the jury could have concluded that defendant intended to place Tamajae in fear, but
failed to do so. Defendant contends the error was prejudicial because the evidence clearly
establishes that if given the opportunity, the jury could have found Tamajae’s preliminary
hearing testimony more credible. Thus, his conviction on count 6 should be conditionally
reversed, with the People given the option of either retrying count 6 or accepting a
modification of the conviction to attempted criminal threat, with remand for resentencing.
Respondent contends there was insufficient evidence to support an attempt instruction



                                              12
merely based on Tamajae’s preliminary hearing testimony in light of the overwhelming
evidence Tamajae was in fear for his well being after defendant made threats.
       A.     Factual Background
       Count 6 was based on defendant’s conduct in September 2011 when Tamajae
retreated to his room based on defendant’s statements that he would “whoop [his] ass.”
During cross-examination, Tamajae admitted that during the preliminary hearing, he had
testified that when defendant threatened to beat Tamajae’s ass and “get the 40’s on” him,
“[it] didn’t really scare me.” Tamajae stated that he did not remember this testimony.
       During the colloquy on proposed jury instructions, the prosecution requested an
instruction on attempted criminal threats. The defense stated that it had never heard of an
attempted criminal threat. The court responded, “Well, I presume [the prosecution] has
some case authority for this. I just don’t see it on the facts of this case. [¶] I know that
Tamajae, when he testified, at one point it was suggested in cross-examination that he had
said he wasn’t affected by the defendant’s statement, but then I thought you read another
portion of his prior testimony where you said he was in fear. [¶] I just think you are
going to make the case more confusing to the jury if we add an attempted criminal threat
[instruction], even if the law supports it.” The prosecution withdrew the request.
       B.     Discussion
       “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other hand, the
court is not obliged to instruct on theories that have no such evidentiary support.”
(People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Avila (2009) 46 Cal.4th 680,
704–705.) Evidence is substantial for this purpose if it would cause a reasonable jury to
conclude that the defendant committed the lesser but not the greater offense. (Breverman,
at p. 162.) “In deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury.” (Ibid.) We apply a
de novo standard of review to the trial court’s failure to instruct on an assertedly lesser
included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)


                                                13
       An uncharged crime is included in a greater charged offense if either (1) the
greater offense cannot be committed without committing the lesser (the “elements test”),
or (2) the accusatory pleading actually alleges all of the elements of the lesser offense (the
“accusatory pleading test”). (People v. Wolcott (1983) 34 Cal.3d 92, 98.) To determine
whether an offense is a lesser included, one of the two tests must be met. (People v.
Lopez (1998) 19 Cal.4th 282, 288.) Error in failing to give lesser included instructions
where required is reviewed under the People v. Watson (1956) 46 Cal.2d 818, 836
standard of harmless error. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
       Generally, “[a]n attempt to commit a crime consists of two elements: a specific
intent to commit the crime, and a direct but ineffectual act done toward its commission.”
(§ 21a.) The underlying crime here is criminal threat, as defined in section 422,6 which
crime has five analytic elements. (In re George T. (2004) 33 Cal.4th 620, 630; People v.
Toledo (2001) 26 Cal.4th 221, 227–228 (Toledo).) To prove the offense, the prosecution
must establish that: (1) “the defendant ‘willfully threaten[ed] to commit a crime which
will result in death or great bodily injury to another person’”; (2) “the defendant made the
threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if
there is no intent of actually carrying it out’”; (3) “the threat—which may be ‘made
verbally, in writing, or by means of an electronic communication device’—was ‘on its
face and under the circumstances in which it [was] made, . . . so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of


       6 Subdivision (a) of section 422 provides: “Any person who willfully threatens to
commit a crime which will result in death or great bodily injury to another person, with
the specific intent that the statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the circumstances in which it is
made, is so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat, and thereby causes that person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family’s safety, shall be punished by imprisonment in
the county jail not to exceed one year, or by imprisonment in the state prison.”

                                                14
purpose and an immediate prospect of execution of the threat’”; (4) “the threat actually
caused the person threatened ‘to be in sustained fear for his or her own safety or for his or
her immediate family’s safety,” and (5) “the threatened person’s fear was ‘reasonabl[e]’
under the circumstances.” (Toledo, at pp. 227–228.)
       The leading case regarding attempted criminal threat is Toledo, supra, 26 Cal.4th
221. There, following a domestic dispute, the defendant was charged with making
criminal threats to his wife, and assault with a deadly weapon on his wife and a neighbor.
(Id. at pp. 224–226.) Although the wife told investigating officers that the defendant’s
threats to her placed her in fear, at trial she denied that they did so. (Id. at p. 225.) After
the jury received instructions on criminal threat and attempted criminal threat, it found the
defendant guilty of the latter offense. On appeal, the defendant maintained that there is
no such crime as attempted criminal threat, arguing, inter alia, that it would improperly
subject speech protected by the First Amendment of the United States Constitution to
punishment. (Id. at pp. 226, 233.) In rejecting the contention, Toledo examined the
origins of the crime of criminal threat, described the specific intent required for attempted
criminal threat, and identified some situations that would support that offense. As the
court noted, the former version of section 422, which defined the crime of terrorist threat,
made it an offense to willfully threaten a crime that would result in death or great bodily
injury, with the specific intent to terrorize another person, thereby causing that person
“‘reasonably to be in sustained fear for his or [her] or their immediate family’s
safety . . . .’” (Toledo, at p. 228.) In Toledo, the Supreme Court observed that the
Legislature, in enacting the current version of section 422, incorporated this restriction in
element (3) of the offense, and thus imposed punishment only on threats beyond the
protection of the First Amendment. (Toledo, at pp. 229, 233.) Generally, such threats are
identified by reference to a “reasonable person” standard: “‘When a reasonable person
would foresee that the context and import of the words will cause the listener to believe
he or she will be subjected to physical violence, the threat falls outside First Amendment
protection.’” (Id. at p. 233, italics omitted.)


                                                  15
       In In re Sylvester C. (2006) 137 Cal.App.4th 601, 604–605, a petition was filed
charging a minor with criminal threat. At the hearing on the petition, evidence was
presented that the minor made a serious and sincere threat to kill another person, but no
evidence was submitted to show that the victim experienced sustained fear as a result of
the threat. (Id. at pp. 605–609.) The juvenile court nonetheless found the criminal threat
allegation to be true, but in view of the gap in the evidence, the appellate court modified
the finding to reflect that the juvenile’s offense was attempted criminal threat. (Id. at
pp. 610–611.)
       Here, insufficient evidence supports the giving of the instruction. Aside from
Tamajae’s isolated preliminary hearing testimony, Tamajae testified unequivocally at trial
he was afraid defendant would actually beat him and send a gang after him, and remained
in his room with the door locked until the next day, and would not come out even for his
uncle who wanted to take Tamajae to a church activity. Tamajae finally emerged from
his room when Keaton told him to pack some clothes and he could leave the house.
IV.    True Finding On the Weapons Enhancement Attached to Count 2
       Defendant contends the true finding on the weapons enhancement attached to
count 2 (assault with a deadly weapon, § 245, subd. (a)(1)) must be stricken because the
use of a weapon is an element of the offense. Respondent concedes this point.
       A.     Factual Background
       The information alleged as to counts 1 and 3 (violations of § 422) that defendant
personally used a deadly weapon, a knife, in the commission of those crimes, and that the
use of such a weapon was not an element of the offense (§ 12022, subd. (b)(1)). After
count 3 was dismissed during trial, however, the proposed verdict form contained a true
finding for the deadly weapon enhancement on count 2 (assault with a deadly weapon).
During discussion of the jury instructions and verdict forms, defense counsel requested
the enhancement be removed from count 2. The court responded, “my feeling is that we
should conform to proof, and since it is a serious felony, if the defendant personally used
a knife, I think that the verdict form should reflect that just so that down the line people


                                              16
don’t have to look at the transcript of the case. [¶] I don’t see that there is any harm to
the defendant by having a personal use allegation, and so I’m going to give it as to count
two.” The court imposed and stayed a one-year enhancement pursuant to section 12022,
subdivision (b)(1) on count 2.
       B.     Discussion
       At the time of the charged offense, former section 245, subdivision (a)(1)
provided, in relevant part, “Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm or by means of force
likely to produce great bodily injury shall be punished by imprisonment in the state prison
for two, three or four years . . . .”7 Former section 12022, subdivision (b)(1) provided,
“Any person who personally uses a deadly or dangerous weapon in the commission of a
felony or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon
is an element of that offense.”
       In People v. McGee (1993) 15 Cal.App.4th 107, the defendant stabbed the victim
with a knife and was charged with assault with a deadly weapon and by force likely to
produce great bodily injury, with a section 12022, subdivision (b) enhancement. The jury
convicted McGee and found the enhancement true, and the trial court imposed the
enhancement. (Id. at pp. 109–110.) McGee noted that although section 245, subdivision
(a)(1) “can be violated without necessarily using a deadly weapon,” the “section ‘defines


       7 Effective January 1, 2012, the statute broke apart these two ways of committing
an assault into separate subsections: Assault with a deadly weapon other than a firearm
remains in section 245, subdivision (a)(1), while assault by means of force likely to
produce great bodily injury is found in section 245, subdivision (a)(4). (Stats. 2011,
ch. 183, § 1.) The legislative history indicates the amendment was designed to ameliorate
confusion arising in assessing prior convictions because “[a] prosecutor will see ‘PC
§ 245(a)(1)’ on a defendant’s rap sheet and not know if it was an assault with a deadly
weapon or an assault likely to produce great bodily injury.” (Assem. Com. on Pub.
Safety, Rep. on Assem. Bill No. 1026 (2011–2012 Reg. Sess.) as introduced Feb. 18,
2011, pp. 1–2.)

                                             17
only one offense, to wit, “assault upon the person of another with a deadly weapon or
instrument [other than a firearm] or by any means of force likely to produce great bodily
injury . . . .” “Consequently, in determining whether use of a deadly weapon other than a
firearm is an element of a section 245, subdivision (a)(1) conviction, the question is not
simply whether, in the abstract, the section can be violated without using such a weapon.
Rather, the conduct of the accused, i.e., the means by which he or she violated the statute,
must be considered.” (McGee, at pp. 114–115.) McGee further explained, “If
prosecutors were permitted to divide section 245, subdivision (a)(1) into two separate
offenses regardless of the defendant’s conduct, as did the prosecutor in this case, similarly
situated defendants who assaulted their victims with deadly weapons other than firearms
and were charged with violating section 245, subdivision (a)(1) could receive disparate
punishment depending solely upon the language used in the pleadings. The one accused
of assault with a deadly weapon would not be subject to the enhancement under section
12022, subdivision (b) while the one accused of assault by means of force likely to cause
great bodily injury would be subject to the additional punishment. This is an absurd and
unjust result which is inconsistent with the legislative intent in enacting sections 245,
subdivision (a)(1) and 12022, subdivision (b).” (McGee, at p. 117.)
       Here, we agree with defendant that because the use of a deadly weapon was an
element of the offense, the enhancement imposed on count 2 pursuant to section 12022,
subdivision (b)(1) must be stricken.
V.     Marsden Motion
       Defendant asserts that the trial court erred in denying to conduct a Marsden
hearing after defendant advised the court he had new evidence that could lead to a new
trial. He argues the error violated his Sixth Amendment right to counsel, was prejudicial
per se because the nature of the error precludes meaningful appellate review of its
prejudicial impact, and was not untimely as a defendant has a right to bring a Marsden
motion even after trial has concluded. He requests that we conditionally remand the
matter to the trial court.


                                             18
       A.       Factual Background
       Before sentencing, defense counsel advised the court that defendant wanted to
“either have a Marsden motion or go pro per as there are additional motions he would like
to bring before this court that I do not believe have legal value . . . .” The court
responded, “I think it’s too late. We’re going to go ahead and sentence. I’m not going to
hear a Marsden motion on the day of sentencing.” Defendant stated that he had new
evidence that could be the basis for a new trial. The court responded, “bring it up in a
habeas corpus because I think you’ve been well represented in this. I don’t really want to
hear your new information at this time. [¶] . . . [¶] . . . if you have evidence that you think
is sufficient to acquit, then you put it in a habeas corpus and file it with the court and I’ll
consider it.”
       B.       Discussion
       The duty to conduct a Marsden inquiry arises only when the defendant asserts his
counsel’s performance has denied him his constitutional right to effective counsel.
(People v. Leonard (2000) 78 Cal.App.4th 776, 787.) “A trial court errs under Marsden
by not affording a criminal defendant the opportunity to state all his reasons for
dissatisfaction with his appointed attorney.” (People v. Vera (2004) 122 Cal.App.4th
970, 980.) “‘“‘A defendant is entitled to relief if the record clearly shows that the first
appointed attorney is not providing adequate representation [citation] or that defendant
and counsel have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.’”’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) A
defendant does not have a right to an appointed attorney who will conduct the defense in
accordance with the defendant’s wishes. (People v. Lucky (1988) 45 Cal.3d 259, 281.)
Furthermore, tactical decisions are made by counsel, and disagreements over those
decisions, in themselves, do not constitute an “irreconcilable conflict” for purposes of
Marsden. (People v. Welch (1999) 20 Cal.4th 701, 728–729.)
       As stated in People v. Reed (2010) 183 Cal.App.4th 1137, 1148: “a trial court’s
failure to conduct a postconviction Marsden hearing is harmless where the defendant “has


                                               19
made no showing . . . either that his Marsden motion would have been granted had it been
heard, or that a more favorable result would have been achieved had the motion in fact
been granted.” We review the denial of a Marsden motion for abuse of discretion.
(People v. Barnett, supra, 17 Cal.4th at p. 1085.) “Denial is not an abuse of discretion
‘unless the defendant has shown that a failure to replace counsel would substantially
impair the defendant’s right to assistance of counsel.’” (People v. Taylor (2010) 48
Cal.4th 574, 599.) We review the trial court’s erroneous denial for prejudice under the
Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17
L.Ed.2d 705].)
       Here, we find the trial court erred in failing to conduct a Marsden motion. There
is no offer of proof or statement by the defendant or his attorney concerning the subject
matter of his new trial motion from which we can conclude beyond a reasonable doubt
that the defendant’s new trial motion would have been unmeritorious. Thus, we cannot
assume that counsel’s refusal to bring the motion was based upon counsel’s rendering of
adequate representation, or that it amounted to no more that a disagreement concerning
tactical choices about whether the bringing of a new trial motion was warranted under the
circumstances. We therefore reverse based on the failure to hold a Marsden hearing, and
order that the trial court conduct a Marsden hearing. If the court finds defendant’s
Marsden motion is meritorious, the court is to permit defendant to substitute counsel and
is to hold a hearing on defendant’s motion for new trial based on asserted error to
determine if there is a reasonable probability the result at trial would have been different
but for any asserted error. If defendant’s new trial motion is meritorious, the trial court is
to conduct a new trial. If the Marsden motion, and any new trial motion brought are
denied, then defendant’s conviction is affirmed as modified to strike the section 12022,
subdivision (b)(1) enhancement.




                                              20
VI.    Waiver of Trial On Defendant’s Prior Convictions
       Defendant contends the trial court did not adequately inform him of his right to
have a jury trial on his prior convictions, and as a result, he did not knowingly and
intelligently waive his rights on his prior prison terms. We disagree.
       A.     Factual Background
       The information alleged that defendant had four prior prison terms under section
667.5, subdivision (b). Trial on the prior prison terms was bifurcated. At the time the
jury was deliberating, the court informed defendant that if the jury found him guilty,
defendant would have the right to have the jury determine the fact of the prior
convictions. The court explained to defendant that “most defendants . . . waive their right
to a jury on the issue of proof of the priors, and if you are convicted, we will have a court
trial at the time of sentencing, and we will take it up then. [¶] Why don’t you talk it over
with [defense counsel] and see what your thoughts are.” The record indicates that
defendant and counsel conferred. Defense counsel stated, “You spoke with my client.
He is inclined to waive jury as to the priors.” The court asked defendant, “You’re okay
with that, letting me decide if the prosecution can prove that you [committed] these
priors?” Defendant filed a brief in which he argued that in spite of the four terms alleged,
he only suffered three prior prison commitments: One of the prior convictions resulted in
five years’ probation and 365 days in jail, but because he violated his probation in that
case, he was sentenced to prison and served his term concurrently with one of the other
prison terms alleged in the other priors.
       However, when it came time to determine the fact of defendant’s prior prison
terms, the court advised defendant, “You . . . have the right to challenge whether or not
you are the person who was convicted of those offenses. The People would be required
to prove to me beyond a reasonable doubt that you do have these prior convictions. They
will add one year for each conviction to the sentence that I’m about to impose. [¶] But I
ask you, were you the person who was so convicted,” to which defendant responded,



                                             21
“Yes.” The court turned to defense counsel and asked, “and counsel, do you join in the
plea and the waivers,” to which counsel responded, “Yes.”
       B.     Discussion
       Before a trial court accepts a defendant’s admission to a prior conviction
allegation, the court must enumerate for the defendant the three rights that the defendant
is waiving (i.e., to a jury trial, to remain silent, and to confront witnesses), and must
obtain waivers of these rights from the defendant. (People v. Mosby (2004) 33 Cal.4th
353, 356, 359–360.) If an express waiver of these rights is not secured from the
defendant, reversal is required unless the record as a whole shows the admission was
voluntary and intelligent under the totality of circumstances. (Id. at pp. 360–361.) The
question is whether the defendant’s admission was intelligent and voluntary “because it
was given with an understanding of the rights waived.” (Id. at p. 361.)
       In People v. Mosby, supra, 33 Cal.4th at p. 361, our Supreme Court addressed the
process a reviewing court should follow to assess whether the defendant’s “admission of
[a] prior conviction was intelligent and voluntary in light of the totality of circumstances”
in those cases where “the transcript does not reveal complete advisements and waivers.”
In such cases, the court must examine “the whole record, instead of just the record of the
plea colloquy” to determine whether the “admission . . . was intelligent and voluntary in
light of the totality of circumstances.” (Ibid.) The factors the court can consider include
the defendant’s participation in a trial immediately prior to entering a plea and the
defendant’s prior experience in the criminal justice system from which he may have
learned of his constitutional rights. (Id. at p. 365.)
       In People v. Mosby, supra, 33 Cal.4th 353 the court further held that previous
experience with the criminal justice system indicates greater sophistication regarding
legal rights. (Id. at p. 365.) The record here shows that defendant had at least four felony
convictions, each of which necessarily involved either a trial or a plea during which
defendant received further practical education about his constitutional rights. (See id. at
p. 365.) This fact, coupled with the limited advisement the court gave defendant about


                                               22
his right to a jury trial on the priors during deliberations and the court’s advisements
concerning the prosecution’s burden of proof on the prior allegations, we conclude under
the totality of the circumstances that defendant knowingly waived all trial rights
concerning his prior prison terms.
                                      DISPOSITION
       The judgment is reversed. The trial court shall conduct a People v. Marsden
(1970) 2 Cal.3d 118 hearing. If the court finds defendant’s Marsden motion is
meritorious, the court is to permit defendant to substitute counsel and is to hold a hearing
on defendant’s motion for new trial based on asserted error to determine if there is a
reasonable probability the result at trial would have been different but for any asserted
error. If defendant’s new trial motion is meritorious, the trial court is to conduct a new
trial. If the Marsden motion, and any new trial motion brought are denied, then the
judgment shall be reinstated as modified by striking the Penal Code section 12022,
subdivision (b)(1) enhancement and the one-year term imposed for it; further, the clerk of
the superior court shall prepare an amended abstract of judgment to reflect this
modification, and forward the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
       NOT TO BE PUBLISHED.


                                           JOHNSON, J.


I concur:


       CHANEY, J.




                                             23
       Rothschild, Acting P.J., concurring and dissenting.
       I concur in the opinion except for Part III in which the majority finds no error in
the trial court’s failure to instruct the jury on the lesser included offense of attempted
threats against Tamajae. In my view there was sufficient evidence to warrant that
instruction.
       Tamajae testified at trial that after Sims threatened to “whoop [my] ass” and
send the 40’s gang after him, “I stayed in my room because I was scared.” He also
testified that as soon as Sims finished making those threats, “I went to sleep.” To
impeach Tamajae’s claim that Sims’s threats frightened him, Sims’s counsel read from
the transcript of Tamajae’s testimony at the preliminary hearing. Question: “‘When
[Sims] threatened to beat your ass and get the 40’s on you, did that scare you?’” Answer:
“‘Uh, no. It really didn’t scare me.’”
       Based on Tamajae’s conflicting testimony about whether he felt fear and his
testimony that after hearing Sims’s threats he went to sleep a jury could reasonably find
that Tamajae did not experience “sustained fear,” or any fear at all, as necessary to
convict Sims of making a criminal threat. Therefore, the court erred in not instructing the
jury on attempted criminal threats.




                                                          ROTHSCHILD, Acting P. J.
