Filed 2/20/14 P. v. Shrader CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064907
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF138419A)
                   v.

BILLY WAYNE SHRADER,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Roger T.
Picquet, Judge.*

         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


         *Retired judge of the San Luis Obispo Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Following a jury trial, defendant Billy Wayne Shrader was convicted of assault
with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)), criminal threats (§ 422), and two
counts of attempting to deter a peace officer from the performance of his duties (§ 69).
The jury also found true allegations defendant committed the assault and threats because
of the victim’s race in violation of section 422.75, subdivision (a). In a bifurcated
proceeding, the trial court found true allegations defendant suffered three prior felony
convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(i), 1170.12,
subds. (a)-(e)), three prior convictions within the meaning of section 667, subdivision (a),
and suffered four prior prison terms within the meaning of section 667.5, subdivision (b).
       The trial court sentenced defendant to four consecutive terms of 25 years to life for
the felony counts. It added the applicable enhancements to each count, resulting in a total
term of 100 years to life plus a determinate term of 48 years. On appeal defendant
challenges the trial court’s denial of his request for a competency hearing, the sufficiency
of the evidence to support the hate crime enhancement, the trial court’s sua sponte
instruction to the jury regarding the purpose of a preliminary hearing, and the trial court’s
failure to instruct on the lesser included offense of attempted criminal threats. In
addition, he raises several sentencing issues. We find the trial court erred in failing to
instruct the jury regarding the lesser included offense of attempted criminal threats and,
as a result, defendant’s conviction on that count must be reversed. In all other respects,
the judgment is affirmed.
                                            FACTS
       Belteshazzar Johnson was employed as a security guard at the Golden Empire
Transit bus terminal in Bakersfield. On September 8, 2011, at approximately 1:30 in the
afternoon, Johnson noticed defendant smoking in a nonsmoking area of the terminal.
Johnson, who is African-American, approached defendant and politely asked him to


       1All further references are to the Penal Code unless otherwise indicated.




                                               2.
move to a designated smoking area. Defendant refused, becoming irate, and said he was
not “going to let any nigger tell him what to do.” Defendant continued to repeat his
statement and continued to use racial slurs. As Johnson attempted to calm defendant,
defendant began threatening him, saying he would “cut” and kill Johnson. In support of
his threat, defendant retrieved a pocketknife from his pocket and extended the blade.
Johnson estimated the blade to be three to four inches in length.
       In response to defendant’s production of a weapon, Johnson retrieved a can of
pepper spray from his duty belt and began to shake it in an attempt to get defendant to put
his knife away. Undeterred, defendant continued holding the knife, threatening to cut or
stab Johnson, all while hurling racial slurs at Johnson. During the ordeal, defendant
lunged toward Johnson with the knife, causing Johnson to jump back in order to avoid
being cut by the knife. Defendant put the knife away and Johnson called 911 to report
the incident. During the call, Johnson indicated defendant might be intoxicated, although
Johnson later noticed defendant did not smell of alcohol and instead thought defendant,
who was 79 at the time, might be senile.
       Defendant began to walk to a more populated area of the terminal and Johnson
followed at a distance in order to watch defendant and make sure he would not attempt to
hurt anyone else. Johnson noted he was the only security officer on duty at the time and
his job was to keep the patrons safe. As Johnson followed him, defendant turned around,
issued additional threats to stab Johnson while yelling racial epithets, and approached
Johnson. Johnson responded by pushing defendant to keep distance between them,
causing defendant to stumble backwards. Defendant once again retrieved his
pocketknife, extended the blade, and said he was not afraid to stab Johnson. Johnson
once again removed his pepper spray and began to shake it and attempted to get
defendant to follow him to a less crowded area of the bus terminal. Johnson testified he
was in fear for his safety at that time. Defendant continued to advance, saying he was
going to cut Johnson and that he had “better get ready.” At that point, Johnson used the



                                            3.
pepper spray on defendant, grabbed the knife from his hand, knocked him to the ground,
and handcuffed him. Johnson propped defendant up against a pillar and offered him
water to flush his eyes, but defendant was unresponsive. Once the police arrived, they
took custody of defendant.
       Johnson noted the entire ordeal was captured by video surveillance and the video
was played for the jury. However, there was no audio on the video. The video
corroborated Johnson’s account of the incident.
       On cross-examination, Johnson explained he had put gloves on when he was
initially speaking with defendant because defendant was already combative and he
suspected he would have to handcuff him and wanted the gloves to prevent the handcuffs
from slipping. He also admitted he had offered to give defendant a ride or to call a cab
for him, but denied ever offering to help him get onto the bus. In addition, Johnson
admitted he had testified at the preliminary hearing that defendant had lunged at him with
the knife before he used the pepper spray, but acknowledged after watching the video of
the incident that was incorrect.
       Christina Luttrull was at the bus terminal on the day of the incident and heard
defendant yelling racial slurs at Johnson. At one point she saw defendant approach
Johnson, and saw Johnson push defendant backwards defensively. At that point she
heard defendant say Johnson committed a felony and he now had the right to “cut”
Johnson. She noticed defendant had retrieved a pocketknife and attempted to stab
Johnson. Luttrull admitted having two prior misdemeanor theft related convictions.
       Officers Sean Spillner and Robert Pair both responded to the bus terminal.
Spillner took custody of a knife pointed out to him by Johnson and arrested defendant.
As Spillner and Pair escorted defendant to the patrol car, they both heard defendant say,
“That nigger is as good as dead. He just committed suicide.” The officers transported
defendant to the hospital to be medically cleared before booking him at the jail.




                                            4.
       At the hospital, Spillner and Pair each spent some time separately guarding
defendant. Spillner recalled defendant stating he was going to hire someone and pay
them $5,000 to kill “that nigger” or to throw lighter fluid in his eyes. This was in
reference to Johnson. Defendant also stated it was his lifetime goal to kill a police officer
and he would get a trophy for doing so. Pair recalled sitting in the emergency room with
defendant while an African-American family was waiting in the emergency room.
Defendant began calling the family, including an approximately eight-year-old child,
“niggers” repeatedly for about 20 minutes. Pair asked defendant to stop the verbal
barrage, however, defendant laughed and only yelled louder. Shortly after this, defendant
told Pair he understood why Bruce Sons “killed that pig” and that Sons was his hero.
This was significant to Pair as a California Highway Patrol officer had been killed by
Bruce Sons sometime earlier. Pair asked defendant why he was so angry and defendant
replied one of his goals was to kill a police officer.
       After defendant was cleared at the hospital, the officers transported him to jail. On
the way, defendant told Spillner to turn around so defendant could see his face and could
kill him later when he was released from jail. Defendant also stated he had “nothing to
lose.” Pair recalled a similar statement from defendant. Defendant angrily said, “I am
going to kill you with a 30 aught 6 rifle and shoot you from a quarter mile out so you
won’t know what hit you.”
Defense Case
       Juan Garza, a defense investigator, testified he was present when Johnson was
interviewed by defense counsel. Johnson did not appear confused by the questions; he
asked numerous times whether the defense had viewed the video of the incident. Garza
also testified Johnson stated he had told the officers defendant lunged at him with the
knife before he used the pepper spray and he intended to “stick” with that version. In
addition, the defense presented evidence regarding the distance from a bench to a crack in
the concrete in the area where Johnson first encountered defendant.



                                              5.
       The parties stipulated that if Spillner were recalled to the stand, he would testify
Johnson had told him he had offered to help defendant onto one of the busses.
                                       DISCUSSION
I.     The Trial Court Did Not Abuse Its Discretion in Failing to Order A Second
       Competency Hearing
       A.         Factual History
       During the proceedings, defense counsel made a number of motions pursuant to
section 1368 regarding defendant’s competency to stand trial. We will recount each
instance in detail.
                  1.    First competency hearing
       Prior to the preliminary hearing, defense counsel moved for a competency
evaluation pursuant to section 1368. After suspending criminal proceedings, the trial
court conducted a competency hearing on October 14, 2011. At the hearing, the trial
court received a report from Lauren Thomas, Psy.D., concluding defendant was
competent to stand trial. According to the report, defendant understood the charges
against him, understood his defenses, the court procedures and the roles of the attorneys,
the judge, and the jury. In addition, Dr. Thomas noted defendant “did not present with a
mental disorder that would preclude him from” stating “his side of the case to his
attorney.” However, the report did note defendant’s “thought process appeared mildly
impaired in that he would go off track and need to be redirected back to the topic at
hand.” Defendant was diagnosed with major depressive disorder as well as alcohol
dependence. Both the prosecution and defense submitted the issue of defendant’s
competency on Dr. Thomas’s report, and the trial court found defendant was competent
to stand trial.
                  2.    First request for a second competency hearing
       The issue of defendant’s competency was not mentioned again until March 28,
2012, when the case was scheduled for trial. After defense counsel’s motion to trail the
trial approximately two weeks for further investigation was denied, counsel stated she

                                             6.
was “under the belief that [defendant] is incompetent at this time to proceed to trial.”
The trial court noted defendant had previously been deemed competent to stand trial by
the court and inquired as to any change of circumstances. Defense counsel cited the fact
defendant had subsequently been moved to the medical ward at the jail and “it was
difficult and it’s still difficult to speak to him about the case. His ability to communicate
and other issues is pretty reasonable, but to actually speak about the case is difficult, if
not impossible.” Counsel further stated defendant’s “behavior in court to some extent
backs up or buttresses his issues of competence.”
       In denying the motion for a renewed evaluation under section 1368 the trial court
explained: “It doesn’t appear to be any substantial change in circumstance. [Defendant]
has been through this court many times and he hasn’t changed. He just hasn’t changed.
That’s who he is. There hasn’t been any change in circumstances.” Notably, during the
same hearing, while arguing the case should be trailed for further investigation, defense
counsel noted defendant “is prepared to waive time if the Court would like a time
waiver.” The trial court denied the motion to trail the case and it was assigned to another
department for trial.
              3.        Second request for a second competency hearing
       Upon arriving in the trial department, defense counsel renewed her motion
pursuant to section 1368, arguing defendant’s

       “ability to communicate with me about the case has substantially changed.
       Since that report came back some of the ways—some of the indications that
       has changed the fact that [defendant] has gone to the medical pod which is
       where he’s housed now.

              “The Court—the other courts have been aware of [defendant’s]
       almost seeming inability to control his own—I don’t—they are not
       necessarily outbursts, but his own conversations. And my experience with
       him since that time has been that he has degraded in his ability to discuss
       with me this case.”
Counsel clarified it was “not that [defendant] can’t communicate. It is that he can’t
communicate about his case.” After determining counsel’s motion was simply a renewal


                                              7.
of the motion made earlier that day, the trial court denied the motion. During continued
discussions with the attorneys, the trial court stated the following:

       “Okay, Counsel, I want to make a general statement to [defendant], if I
       may. [¶] [Defendant], again, good afternoon. [Defendant] you have what I
       would call a deep voice. And I don’t want you to have communications
       with your attorney that everyone else in the room hears. So I’m just going
       to ask you when you do talk to your attorney you maybe try and keep your
       voice down or whisper. I don’t want other people to hear your
       conversations.”
Defendant acknowledged he was hard of hearing and others had told him he speaks
loudly. The court reiterated its concern with others overhearing defendant’s private
conversations with his attorney due to the volume of his voice and offered to make
accommodations for defendant to speak privately with his attorney.
              4.     Circumstances leading to the third request for a second
                     competency hearing
       During an evidentiary hearing outside the jury’s presence, an officer testified to a
statement defendant made to him on the date in question. Defendant responded, “That’s
a lie.” Shortly thereafter, the trial court reiterated to defendant that he has “a very loud
voice. When you talk to your attorney, you have to keep your voice down. The other
thing I can’t have is commenting on people that are speaking, whether you disagree with
them or not. Do not make any comments while the people are testifying.”
       During voir dire, prospective jurors were questioned by the prosecutor regarding
whether they would have sympathy for defendant due to his age. After one prospective
juror responded that defendant’s age would make no difference to him, defendant stated,
“I don’t want him.” Later that same day while counsel was in chambers, the trial court
was informed defendant made a statement one or more of the prospective jurors may
have overhead. The bailiff informed the court defendant was complaining the bandages
he had on his wrists due to a medical condition were too tight, and defendant stated he
was “going to kill cops.” Upon receiving this information, defense counsel again
renewed her motion under section 1368, arguing defendant was continuing to speak


                                              8.
loudly so that others could hear after being admonished not to do so, and he “simply
cannot help himself.” The trial court denied the motion, explaining the “mere fact that
someone has made statements in and of itself is not a sign of incompetency.”
       The trial court again admonished defendant not to speak loudly so others could
hear him, and the court would make accommodations so he could speak to his attorney
privately. Defendant stated he understood; he had “just said my brother when he passed
away he’s going to leave me his gun collection.” During an additional hearing regarding
what statements defendant made in the presence of the jury, a bailiff explained to the
court defendant had been complaining about his bandages.

       “[Defendant stated,] my brother has a gun safe full of guns, and it’s come
       down to it. I’m going to have to kill a cop. [¶] And he then looked at the
       audience and said the same thing. I’m 80 years old. These guys are
       mistreating me, so I’m gong to have to start killing cops.”
       Shortly thereafter, a prospective juror asked during voir dire whether the jurors
were to “presume mental competence until we are proven otherwise.” The jurors were
instructed by the trial court that an individual’s competence was not an issue for the jury.
       During additional voir dire, while a juror was explaining his occupation, defendant
stated aloud, “Illegally.” Before concluding for the evening, and out of the jury’s
presence, the court discussed the court schedule with the parties. When the court
explained they would not be in session on César Chávez Day, defendant said, “Oh,
brother,” and “I didn’t like him.”
       On the next court day, voir dire was concluded without any additional comments
by defendant. During trial, out of the presence of the jury, the court inquired as to
whether defendant would waive a jury on the issue of his prior offenses. Defense counsel
indicated she had discussed the matter with defendant, and he was willing to waive a jury
as to the priors. In taking the waiver, defendant stated he thought he could not be tried
twice for the same crime, and the trial court explained he was not being tried for the
crime again, only that the priors were being used to enhance a sentence. Defendant



                                             9.
waived a jury on the issue of the priors. After joining in the waiver, defense counsel
brought another motion pursuant to section 1368, explaining defendant “continuously
talks to me about what his attorney has told him. I think members of the jury panel at
least even had questions as to whether they are supposed to assume that [defendant] is
competent. At this time I would just like to bring another motion.” The trial court denied
the motion for the reasons previously stated.
              5.     Circumstances leading to the fourth request for a second
                     competency hearing
       During cross-examination of Officer Pair, the last prosecution witness, defense
counsel asked if he had ever seen elderly people targeted for crimes. After Pair
responded that he had, defendant stated he had been robbed three times.
       Following the close of evidence and argument, during jury deliberations, the trial
court placed the results of the jury instruction conference on the record. While discussing
the instructions given to the jury, defense counsel informed the court defendant “is
insistent upon me informing something to the Court and will not allow me to listen until I
do.” The court allowed defense counsel to relay the information and the following
colloquially occurred:

              “[DEFENSE COUNSEL]: He wants me to let you know it is a federal
       crime to commit crimes against somebody who is disabled, and he is
       disabled.

              “THE COURT: All right. Are you referring to the Americans with
       Disabilities Act?

              “THE DEFENDANT: Yes, sir.

              “THE COURT: That would not be a crime. That would be a civil
       action. But I understand what you mean. I am well aware of the ADA,
       Americans with Disabilities—

             “THE DEFENDANT: I can’t see. Got to help me. Can’t read. Got to
       help me. Somebody has to help me.

              “THE COURT: Have to make reasonable accommodations for your
       disability.


                                            10.
              “THE DEFENDANT: So I have a weak heart. I have a pacemaker. I
       had seizures. I had— [¶] … [¶] I have cancer.

               “THE COURT: Thank you for bringing the ADA to our attention.

               “THE DEFENDANT: I think she should have brought it up a long time
       ago.

               “THE COURT: We will move on.”
       Shortly after the above exchange defense counsel made another motion under
section 1368 to have defendant evaluated regarding his mental competence. In denying
the motion, the court noted it had “been carefully observing [defendant] during the trial.
I find that he has been appropriate during the trial in terms of his demeanor and manner,
that the only issue that I’ve had to talk to [defendant] about on occasion is his voice being
loud. It carries to people throughout the courtroom. I do not feel that any of the
circumstances that led [the court] to deny the original 1368 a week ago has, in this bench
officer’s opinion, changed.”
       Defense counsel requested to place her reasons for the motion on the record. She
explained her experience with defendant “is that he speaks to me on a daily basis about
what his attorney has told him and refers to somebody else. He also discusses things, as
now reflected just recently, about the Americans with Disabilities Act. That’s his
concern. That’s how he addresses his case. And I have had the same concerns since
before with [the court] that [defendant] has not been able to communicate with me about
the issues pertaining his case.” The court declined to revisit its ruling.
               6.      Circumstances leading to the fifth request for a second competency
                       hearing
       The following day, during continued deliberations, the jury requested readback of
portions of the trial testimony.2 Shortly thereafter, the jury arrived at a verdict. Before

       2It appears the jury requested readback of Johnson’s testimony during the previous
afternoon, but it does not appear the court reporter was able to provide that testimony until the
following morning.



                                                11.
the verdict was received, and outside of the presence of the jury, defense counsel
requested to make a record of “what occurred during the readback.” The court, noting it
was “not aware of anything,” allowed counsel to make a record. Counsel stated that
during

         “the readback, as the jury was sitting, [defendant] had an audible outburst
         that was directed at—I believe at a juror saying that she wasn’t paying
         attention and calling her a bitch, which is consistent with other behavior
         that he’s had throughout the trial. He’s had a difficult time sitting. He’s
         had outbursts towards Mr. Johnson as he sat on the witness stand. He’s
         made indications and pointing forwards and so forth to [the prosecutor] as
         she speaks, and he’s had audible outbursts to the extent the Court has
         actually had to instruct him to remain silent.

                “The other thing I would like to place on the record is one of the
         conversations which I had in earshot of the Court and [the prosecutor]
         outside the presence of the jury, when we were discussing with [defendant]
         the possibility of having to waive time for sentencing, as I was trying to
         explain to him the idea of potential waiver of time, [defendant’s] only
         response was, ‘I am an American with a disability,’ and continued on and
         was not even able to have a conversation about sentencing or any legal
         issue or anything having to do with his case.

               “And with those statements I would just like, again, to resubmit my
         motion under 1368.”
In response, the prosecutor noted there was no change in circumstances, explaining:

         “[B]efore we got sent here that Monday, before the defendant was sent out,
         he threatened to kill the Court in the courtroom, was being loud and
         disruptive and rude. That was on March 26. And on March 28, [defense
         counsel] made the same motion, and [the court] said there’s no substantial
         change in circumstances. He’s been behaving like this the whole time.
         And just because he engages in an outburst to the jury, Your Honor, I don’t
         think that makes him 1368. That just means he’s angry. There’s no
         substantial change in circumstances.”
The court denied the motion, finding no substantial change in circumstances. The court
further explained that its “involvement in advising [defendant] to be quiet is—I wouldn’t
characterize it as a response to outbursts. I simply have noted that he has a loud voice




                                             12.
and that in his conversations with [defense counsel] primarily, I wanted to make sure it
did not interfere with the trial or that it was not overheard by other individuals.”
       The court asked defendant for his cooperation in controlling his emotions when
the verdict was read. Defendant informed the court that if “my lawyer would have told
you I was ADA, American with disability, it would have been a lot different, but she
didn’t do it.” He argued others had to help him under the law because of his disabilities.
The court asked defendant again for his cooperation and defendant stated he would
cooperate.
       As the verdict was being read, the court noted for the record that defendant made
an obscene gesture to the jury, and it had defendant escorted from the courtroom. As
defendant was being taken from the courtroom he said, “No fucking good.… [¶] …[¶] …
80-year-old man. Going to be sorry. Mother fuckers will be sorry. You are going to pay
before I die.” The remaining verdicts were read, and the jury was ultimately excused.
       After a recess, defendant was returned to the courtroom for a court trial on the
priors. When asked how he wanted to proceed, defendant responded, “I’ll just go ahead.
I am going to die pretty soon anyway. Might as well get it over with.” Defendant also
made the comment that he wished his “lawyer would have told you guys about ADA to
begin with.” The court received the evidence relating to the priors and found the prior
allegations true.3 The parties then discussed scheduling a date for sentencing. The court
inquired whether defendant would be willing to waive time for sentencing due to a
scheduling issue. Defense counsel responded that she had attempted to discuss the issue
with defendant on “a couple of instances, and I have not—I am not able to discuss it with
him sufficiently.” The court, with defense counsel’s permission, then explained the
scheduling issue to defendant and inquired whether he would be willing to waive time for


       3During presentation of the evidence, the prosecutor dismissed a prior strike allegation
and a section 667, subdivision (a) enhancement based upon the same prior for insufficient
evidence.



                                               13.
the sentencing. After defendant noted how much time he had in custody, he replied
“Yeah. Yeah. It’s only a month.”4 Defendant then waived time for the sentencing.
              7.     Circumstances leading to sixth request for a second competency
                     hearing
       The sentencing hearing was held on May 10, 2012, and began with defense
counsel making another motion pursuant to section 1368. Defense counsel argued that

       “the prosecution’s response to the Romero[5] actually kind of lays out and
       can show the Court an overview of what the real issues with [defendant]
       have been since the beginning of this trial.

              “One of the major components to being competent for trial is being
       able to rationally assist your attorney and your defense.

              “[The prosecutor] puts in her papers the behavior triggered since the
       beginning of this trial, first making death threats upon [the court]; to
       coming into trial, making outbursts in trial, such as he’s going to kill
       individuals; namely, the police officers or the deputies that are protecting
       him. He makes statements that the jury—during their deliberation, calls
       jurors bitches and fat pigs. All of these statements go to his inability to
       control himself in court.

              “THE DEFENDANT: That’s a lie.

              “[DEFENSE COUNSEL]: All information that should go toward the
       Court considering a 1368.

              “Subsequent to his behavior in court—not only does he flip off the
       jury and have to be dragged out of the courtroom because of his behavior;
       but subsequent—he’s in the medical pod currently. His behavior in the
       medical pod supports the fact that the man is not competent to stand trial
       and certainly isn’t competent today to potentially receive a multiple life
       sentence by the Court.

             “He’s flooding his jail cell. What for? The deputies don’t know.
       They don’t write it in their report. The prosecution doesn’t know.


       4Defendant noted it would be 35 days until the sentencing date. That calculation was
correct.
       5People v. Superior Court (Romero) (1996) 13 Cal.4th 497.




                                             14.
        “I’d also like to discuss with the Court the facts behind the 1981
strike. But it’s impossible for me to talk to my client and have him give me
an answer that is rational or reasonable.

     “All of this information goes to show that [defendant] is not only not
competent now, but he was never competent.”
The prosecutor responded that defendant

“was charged with threatening to kill the officers involved in this case.

       “Between the time of the information being filed and his behavior in
Department 1, threatening to kill [the court], he was evaluated by a doctor.
And the doctor determined he was competent to stand trial. That finding
has never been disturbed. In fact, [defense counsel] submitted upon that
finding. And his behavior of continuing to threaten to kill people—
nothing’s changed, Your Honor. There’s been no substantial change in
circumstances.

       “And the law says that if there’s already been a 1368 report, there
needs to be a substantial change of circumstances in order for the Court to
grant another 1368 request. And I don’t see any offer of proof of that.
He’s been this way the whole time.”
Defense counsel responded that that original motion was filed

“months prior to going to jury trial. Since that 1368 evaluation was done,
there was a significant change in my ability to communicate with
[defendant], the ability to have a conversation for him to join in his defense,
for him to tell me about what’s going on, why it’s going on, how things
happen. It simply is not there.

       “There was circumstances during trial off the record where the Court
was present. And I was trying to have a conversation with [defendant]
about a sentencing issue. And [defendant] goes off about the Americans
with Disability, which is a very common subject with [defendant]. It is
simply not possible for him to aid in his defense right now. Because he has
no ability—he has some kind of mental health issue that causes him to be
[u]nable to communicate with me about this case.

      “Now—and I’ve said from the beginning, [defendant] has no
problem communicating. He has a significant and clear problem about
communicating about this case.”
The trial court ruled on the motion as follows:



                                     15.
               “This case has caused me a great deal of concern—not only during
       the trial, but since the trial concluded—because of the difficulties presented
       by [defendant] at times.

               “I think, [defense counsel], you have done an admirable job in
       representing [defendant] and presenting the best possible defense that you
       could. And I acknowledge that communication has been difficult with him.
       And in fact, I’ll acknowledge that there is some sort of mental health issues
       with [defendant]. But my understanding of the standard is not simply some
       sort of mental health issue has to exist, but it has to exist to the level that it
       interferes with his ability to either understand the nature of proceedings that
       are going on and/or to effectively communicate and assist counsel in his
       defense.

              “And although I think there may be times where it’s been very
       difficult, I do feel he has been able to communicate and assist, not without
       difficulty, not without complications, but to a level that is satisfactory under
       the law.

               “I also believe that under the history of this case, the fact that the
       1368 evaluation has been done—and I’m familiar with it, having reviewed
       the file—I don’t think that there has been a substantial change in
       circumstances sufficient to justify a further 1368 evaluation. So the motion
       is denied.”
       The sentencing hearing continued and defendant was ultimately sentenced.6
       B.     Legal Standards
       A criminal defendant “cannot be tried or adjudged to punishment while …
mentally incompetent.” (§ 1367, subd. (a).) “A defendant is mentally incompetent” if a
mental disorder prevents the defendant from understanding “the nature of the criminal
proceedings” or assisting counsel “in the conduct of a defense in a rational manner.”
(Ibid.) Section 1368 sets forth the procedure for implementing section 1367 protections.
Under section 1369, subdivision (f), a defendant is presumed mentally competent unless
proved otherwise by a preponderance of the evidence.


       6Defendant did have two additional outbursts during the sentencing hearing. The
outburst consisted of defendant stating “Bitch” and “Fucking bitch” while the prosecutor urged
the court not to exercise its discretion to strike one of defendant’s prior strikes.



                                              16.
       State law and federal due process bar the trial or conviction of a mentally
incompetent defendant. (People v. Rogers (2006) 39 Cal.4th 826, 846.) Both

       “require a trial judge to suspend trial proceedings and conduct a
       competency hearing whenever the court is presented with substantial
       evidence of incompetence, that is, evidence that raises a reasonable or bona
       fide doubt concerning the defendant’s competence to stand trial.
       [Citations.] The court’s duty to conduct a competency hearing may arise at
       any time prior to judgment. [Citations.] Evidence of incompetence may
       emanate from several sources, including the defendant’s demeanor,
       irrational behavior, and prior mental evaluations. [Citations.] But to be
       entitled to a competency hearing, ‘a defendant must exhibit more than … a
       preexisting psychiatric condition that has little bearing on the question …
       whether the defendant can assist his defense counsel.’ [Citations.]”
       (People v. Rogers, supra, at p. 847.)
Under California law, once a competency hearing has been held and thereafter the
defendant is “found competent to stand trial, a second competency hearing is required
only if the evidence discloses a substantial change of circumstances or new evidence is
presented casting serious doubt on the validity of the prior finding of the defendant’s
competence. [Citations.]” (People v. Medina (1995) 11 Cal.4th 694, 734, italics added;
see, e.g., People v. Kelly (1992) 1 Cal.4th 495, 542–543 [no change in circumstance to
justify second hearing]; People v. Jones (1991) 53 Cal.3d 1115, 1153–1154 [general
assertion of defendant’s worsening condition and inability to cooperate with counsel
inadequate to justify second hearing].) To warrant a second competency hearing, “[m]ore
is required than just bizarre actions or statements by the defendant to raise a doubt of
competency. [Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 33; accord, People v.
Marks (2003) 31 Cal.4th 197, 220.) Also, “when … a competency hearing has already
been held, the trial court may appropriately take its personal observations into account in
determining whether there has been some significant change in the defendant’s mental
state. This is particularly true when … the defendant has actively participated in the
trial.” (People v. Jones, supra, at p. 1153.)




                                                17.
       The evidence disclosing a substantial change of circumstances sufficient to
warrant a second competency hearing must itself be substantial. (See People v. Kaplan
(2007) 149 Cal.App.4th 372, 384–385 [in deciding whether changed circumstances
warrant a second competency hearing, trial court does not weigh the evidence; rather, as
in assessing the need for initial competency hearing, trial court applies substantial
evidence standard of proof].) “In determining the substantiality of the evidence, we look
to the record as a whole. [Citation.] Evidence that is ‘“‘reasonable in nature, credible,
and of solid value’’”’ is substantial evidence. [Citations.]” (People v. Frye (1998) 18
Cal.4th 894, 1004, disapproved on a different point by People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) We review the decision whether to conduct a second
competency hearing for an abuse of discretion, mindful that “‘“[a]n appellate court is in
no position to appraise a defendant’s conduct in the trial court as indicating insanity, a
calculated attempt to feign insanity and delay the proceedings, or sheer temper.”’”
(People v. Marshall, supra, 15 Cal.4th at p. 33.)
       C.     Analysis
       The trial court initially declared a doubt as to defendant’s competency early in the
proceedings, and subsequently held a hearing on defendant’s competency after defendant
was evaluated by Dr. Thomas. The trial court found defendant competent to stand trial
based upon the report by Dr. Thomas. Defendant does not argue this ruling was
erroneous, rather he argues the trial court erred in failing to hold a second competency
hearing pursuant to his counsel’s request. Defendant points to the behavior noted above
to support his conclusion the evidence demonstrated a substantial change in
circumstances regarding his competency since the first hearing. We find no changed
circumstances.
       Defendant relies on his numerous “outbursts” to support his argument that the
record demonstrated a substantial change in circumstances as to his competence. He




                                             18.
argues “[n]o rational defendant would have had [these outbursts] because they cast him in
a negative light.” Defendant’s argument misses the mark.
       Evidence that “merely raises a suspicion that the defendant lacks present sanity or
competence but does not disclose a present inability because of mental illness to
participate rationally in the trial is not deemed ‘substantial’ evidence requiring a
competence hearing.” (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other
grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)

       “If a defendant presents merely a ‘litany of facts, none of which actually
       related to his competence [during the relevant proceeding] to understand
       the nature of that proceeding or to rationally assist his counsel at that
       proceeding,’ the evidence will be inadequate to support holding a
       competency hearing. [Citation.] In other words, a defendant must exhibit
       more than bizarre, paranoid behavior, strange words, or a preexisting
       psychiatric condition that has little bearing on the question of whether the
       defendant can assist his defense counsel. [Citations.]” (People v. Ramos
       (2004) 34 Cal.4th 494, 508.)
       Defendant has failed to demonstrate any of the above behavior relates to his
competence to stand trial. None of the behavior exhibited by defendant throughout trial
revealed an inability to understand the proceedings or to assist in his defense. To the
contrary, several of defendant’s so-called “outbursts” evidence his comprehension of the
proceedings and his ability to assist his counsel. First we note many of these “outbursts”
do not appear to be outbursts at all. There are several references on the record to
defendant’s loud voice. In addition to the trial court’s repeated references to the volume
of defendant’s voice, defendant himself, and a witness during the trial, all acknowledged
defendant’s voice was loud. Indeed, the trial court commented during trial it had “been
carefully observing [defendant] during the trial. I find that he has been appropriate
during the trial in terms of his demeanor and manner, that the only issue that I’ve had to
talk to [defendant] about on occasion is his voice being loud. It carries to people
throughout the courtroom.” Keeping in mind this observation, which is amply supported
by the record, it is apparent many of the “outbursts” recounted by defendant simply



                                             19.
appeared to be defendant making statements to his attorney during trial. A review of
these statements demonstrates defendant’s comprehension of the proceedings as well as
his ability to assist his counsel.
       For example, defendant’s comment during jury selection that he did not want a
particular prospective juror demonstrated he was following the proceedings and assisting
in his defense. Defendant understood the particular juror was not sympathetic to his age
and, consequently, he expressed his desire not to have this person serve on his jury.
Likewise, his comment during the pretrial hearing stating the officer’s testimony was a
“lie” confirm defendant was listening to the testimony and informing his counsel of his
position. These comments show defendant was actively participating in his defense in
that he was actually providing his attorney with information during the trial process. He
expressed his feelings on the prospective jurors and informed his counsel of testimony he
disagreed with. The same can be said of many of the comments during the course of the
proceedings. This is in direct contradiction to defense counsel’s claims defendant could
not communicate about his case.
       While the record also demonstrates defendant engaged in some angry or
contemptuous outbursts—for example when he complained to the bailiff regarding his
bandages, when he made statements he was going to kill a police officer, and when he
used profanity and obscene gestures directed at the jury and the prosecutor—these
outbursts did not demonstrate any incompetence on defendant’s part. Rather, they simply
demonstrated his anger either with the proceedings, how he felt he was being treated, and
with the outcome of the trial. Defendant argues no rational person would engage in such
behavior in front of a jury, as the behavior tended to cast him in a negative light. We
disagree. While such behavior is ill-advised and demonstrates poor judgment, it in no
way reflects any incompetency to stand trial. There was nothing inherently bizarre or
irrational about the behavior. Defendant’s expressions of anger and frustration at the
proceedings simply do not support a change in circumstances regarding his competency.



                                            20.
       Furthermore, as the prosecutor pointed out, defendant had previously engaged in
rude and disruptive behavior in court proceedings prior to trial. Defendant has not
provided this court with the transcripts of all the pretrial proceedings, but it appears the
prosecutor’s statement is supported by the record. A jail incident report recounted
defendant’s outburst, disrobing in court, and his threats made to the judge and bailiff at a
pretrial hearing. Indeed, the report indicates defendant was removed from the courtroom
during the proceeding due to his behavior. Furthermore, defense counsel’s own
statements support the same conclusion. During one of her requests to have defendant
evaluated for competency she noted the courts “have been aware of [defendant’s] almost
seeming inability to control his own—I don’t—they are not necessarily outbursts, but his
own conversations.” Thus, the record supports the trial court’s finding defendant’s
behavior “just hasn’t changed. That’s who he is.”
       Defendant’s use of profanity and his gestures toward the jury, while clearly
displaying his anger at the outcome of the proceedings, certainly did not cast a doubt on
his competence. Likewise defendant’s use of profanity toward the prosecutor at
sentencing simply showed his feelings about the arguments being made at the time.
Similarly, the comments to the jury during readback, which were not reported, merely
showed his frustration with what he perceived to be a juror’s inattention to the evidence.
None of these actions taken alone or in combination provided substantial evidence
defendant did not understand the proceedings.
       Our Supreme Court has confirmed “that more is required to raise a doubt of
competence than the defendant’s mere bizarre actions or statements, with little reference
to his ability to assist in his own defense. [Citation.]” (People v. Medina, supra, 11
Cal.4th at p. 735.) In Medina, the court concluded, “Defendant’s cursing and disruptive
actions displayed an unwillingness to assist in his defense, but did not necessarily bear on
his competence to do so ….” (Ibid., italics omitted.) Similarly in this case, no evidence
was presented to the trial court linking defendant’s disruptive behavior with a mental



                                             21.
disorder or developmental disability preventing him from understanding the proceedings
or assisting counsel in presenting his defense.
       Defendant’s behavior while incarcerated also failed to cast a doubt on his
competency. Defendant points to the fact he was housed in the medical ward during the
proceedings, he was verbally and sometimes physically assaultive with the jail personnel,
and he engaged in behaviors such as flooding his cell to support the argument he was
incompetent. However these actions bear no relation to defendant’s ability to understand
the proceedings or assist his counsel in his defense. The fact defendant was in the
medical ward, without more, does not suggest incompetence, especially in light of the
fact defendant apparently suffered from a host of medical ailments.
       Nor does defendant’s expression of anger toward, and lack of respect for, authority
figures at the jail lead to the conclusion he is incompetent. Indeed, this behavior is
strikingly similar to the behavior of the underlying offense. Simply put, nothing in the
facts defendant flooded his cell and was assaultive toward jail staff demonstrated any
changed circumstances or new evidence relating to his competence.
       The crux of defendant’s argument relies on his counsel’s comments that defendant
could not communicate with her about the case. However, defense counsel’s statements,
without more, are insufficient to raise a doubt as to his competence. (People v.
Laudermilk (1967) 67 Cal.2d 272, 285.) While counsel repeatedly stated she could not
communicate with defendant about his case, nothing in the record demonstrated any
change in circumstances since the first competency hearing. As the trial court observed
when counsel made the first request for a second competency hearing, defendant “just
hasn’t changed.”
       Defendant argues the record supports counsel’s claims he could not communicate
with her about his case because he was fixated on the Americans with Disabilities Act.
Defendant points to instances where he mentions this subject with the court to buttress his
argument. However, defendant’s discussion of the topic did not present a substantial



                                             22.
change in circumstances or provide any new evidence casting a doubt on his competence.
Dr. Thomas’s report clearly stated defendant’s “thought process appeared mildly
impaired in that he would go off track and need to be redirected back to the topic at
hand.” Nothing in the record demonstrates this impairment changed in any substantial
way. Defendant’s fixation on the Americans with Disabilities Act is simply an example
of this behavior.
       The record supports a finding defendant believed the Americans with Disabilities
Act was important to his trial and he mentioned it several times during trial. However,
the record likewise supports he did so to assist in his defense, as he clearly believed this
provided him with a defense. During the jury instruction conferences, when defendant
insisted his counsel inform the court about the Americans with Disabilities Act,
defendant stated his counsel “should have brought it up a long time ago.” Just before the
court took the verdict, defendant reiterated things would have gone differently in the trial
if his attorney would have told the court he was an American with a disability. Likewise,
during the hearing on the priors, defendant stated he wished his “lawyer would have told
you guys about ADA to begin with.” These references, all occurring within a relatively
short period of time of each other, demonstrate defendant was, in fact, communicating
about his case with his attorney.
       Despite defense counsel’s assertions to the contrary, it was also apparent
defendant did understand the proceedings and was capable of assisting in his defense. As
stated above, defendant spoke with his attorney about the case, oftentimes loud enough
for others to hear him. Defendant informed his counsel about what he considered an
important defense. That the defense was not valid does not render defendant incapable of
assisting in his defense. Further, it was apparent through conversations the court had
with defendant that defendant’s attention could be redirected to the task at hand, as stated
in the report by Dr. Thomas.




                                             23.
       For example, during trial, defendant waived a jury trial on the issue of his priors.
Counsel stated she had discussed the matter with him, and defendant demonstrated an
understanding of the issue. Defendant’s reference to double jeopardy during the
exchange does not cast doubt on defendant’s understanding. When defense counsel
stated she could not discuss waiving time for sentencing with defendant because he was
insistent on talking about the Americans with Disability Act, the court informed
defendant of the situation and had no problem communicating on the matter. While the
record does support a conclusion communications with defendant at times could be
difficult, as related in the competency report, it was equally apparent defendant could be
redirected to the matter at hand. Defense counsel provided no information that
contradicted this finding other than her assertion defendant was incapable of discussing
the case with her. To the contrary, defense counsel stated defendant had spoken to her
about what “his attorney” discussed with him, further indicating he was in fact discussing
his case with her.
       Furthermore, counsel’s statements that defendant referred to “his attorney” in
conversations with her did not support a finding of changed circumstances. Defendant
clearly referenced his attorney several times during the proceedings, explaining he
wanted her to inform the court of certain facts. Defendant’s apparent reference to his
attorney in the third person in his conversations with her, although unusual, does not
support a finding of a substantial change in circumstances. (See People v. Laudermilk,
supra, 67 Cal.2d at p. 285; People v. Ramirez (2006) 39 Cal.4th 398, 466-468
[defendant’s bizarre behavior during penalty phase of trial insufficient to require
competency hearing].)
       Similarly, defense counsel’s statement that she could not speak to defendant about
his prior strike offense in a “rational or reasonable” way is not sufficient to trigger the
court’s duty to order a second competency hearing. Defense counsel did not provide the




                                              24.
court with any facts demonstrating any incompetency, just her assertion that she felt
defendant did not communicate with her about the case.
       In short, upon review of the entire record, it is clear there was no evidence
presented to the court demonstrating either a significant change in circumstances or new
evidence demonstrating defendant’s incompetence to stand trial. The trial court’s
repeated rulings as such were not an abuse of discretion.
II.    Sufficient Evidence Supported the Verdict
       Defendant argues the evidence was insufficient to show he committed the crimes
“because of” the victim’s race. We find the evidence was sufficient to support the
verdict.
       When a defendant challenges the sufficiency of the “evidence to support the
judgment, our review is circumscribed. [Citation.] We review the whole record most
favorably to the judgment to determine whether there is substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could have made the requisite finding under the governing standard of proof.” (In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, we review “the evidence in the light
most favorable to the prosecution, [asking whether] any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This
familiar standard gives full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Once a defendant has been found guilty of the crime
charged, the factfinder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be considered in the light
most favorable to the prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“Before a judgment of conviction can be set aside for insufficiency of the evidence to
support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever




                                              25.
is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th
1758, 1765.)
       Section 422.75, subdivision (a) provides: “Except in the case of a person punished
under Section 422.7, a person who commits a felony that is a hate crime or attempts to
commit a felony that is a hate crime, shall receive an additional term of one, two, or three
years in the state prison, at the court’s discretion.” The term “hate crime” is defined as a
“criminal act committed, in whole or in part, because of one or more of the following
actual or perceived characteristics of the victim: [¶] … [¶] (4) Race or ethnicity.”
(§ 422.55, subd. (a).)
       Our Supreme Court, in In re M.S. (1995) 10 Cal.4th 698, defined the term
“because of” as used in sections 422.6 and 422.7, which define similar hate crime
enhancements. The court noted the term “because of” meant the “conduct must have
been caused by the prohibited bias.” (In re M.S., at p. 719.) But this does not require the
bias be the sole motivating factor. “By employing the phrase ‘because of’ …, the
Legislature has simply dictated the bias motivation must be a cause in fact of the offense,
whether or not other causes also exist.” (Ibid.) In cases where the defendant harbors
several concurrent motivations to commit an offense, “the prohibited bias must be a
substantial factor in bringing about the crime.” (Ibid.) In People v. Superior Court
(Aishman) (1995) 10 Cal.4th 735, 741, our Supreme Court explained these rules apply to
an enhancement pursuant to section 422.75.
       The state may use the defendant’s own words when they are directly related to the
charged crime to prove the defendant “intentionally selected the victim on the basis of the
victim’s status.” (In re Joshua H. (1993) 13 Cal.App.4th 1734, 1753.) Section 422.75
“‘requires the state to show evidence of bigotry relating directly to the defendant’s
intentional selection of this particular victim upon whom to commit the charged crime.
The state must directly link the defendant’s bigotry to the invidiously discriminatory




                                             26.
selection of the victim and to the commission of the underlying crime.’ [Citation.]” (In
re Joshua H., supra, at p. 1753.)
       Turning to the facts of the present case, it is apparent the evidence was sufficient
to support a finding defendant committed the crimes “because of” the victim’s race.
Johnson, who is African-American, testified he approached defendant and politely asked
him to move to a smoking section. After Johnson made his request, defendant replied he
“wasn’t going to let any nigger tell him what to do.” He repeated this several times.
Defendant proceeded to threaten Johnson’s life, stated he would “cut” him, he would stab
him, and told Johnson he had a knife. Subsequently, defendant produced a pocketknife,
extended the blade, and lunged toward Johnson with the knife. Throughout the ordeal,
defendant repeatedly hurled racial slurs at the victim.
       From this evidence the jury could infer that, at the very least, the victim’s race was
a substantial factor in motivating the threats and assault upon Johnson. Defendant argues
the only reasonable conclusion from the evidence is defendant “committed these crimes
because Johnson told him to stop smoking in a non-designated smoking area and that
angered [defendant.]” We disagree. The jury could reasonably infer from the fact
defendant stated he was not “going to let any nigger tell him what to do” that defendant’s
motivation to threaten and assault the victim stemmed from his racial bias. While we
agree with defendant that the evidence also established he is a “defiant individual who
does not like people telling him what to do,” and he “apparently is racist,” these facts are
not at odds with a finding that his crime was also racially motivated. Indeed, defendant
continued to use racial epithets throughout the ordeal, demonstrating his racial motivation
for the attack.
       Relying on In re M.S. and People v. Lindberg (2008) 45 Cal.4th 1, defendant
argues the fact the victim initially approached defendant precludes a finding the attack
was racially motivated. Not so.




                                            27.
       In In re M.S., the Supreme Court found the minors’ attack upon the victims was
motivated by the victims’ sexual orientation. There, the minors along with two adult
cohorts yelled antigay epithets toward the victims as they drove to a restaurant. The
group yelled they were going to kill the victims and stated, “‘We are going to get you
faggots.” (In re M.S., supra, 10 Cal.4th at p. 708.) During a subsequent confrontation,
the minors and the adult counterparts hit and kicked the victims, causing one victim to
lose consciousness. In rejecting a claim that the evidence was insufficient to support a
finding the minors committed the crimes because of the victims’ sexual orientation, the
court noted the violence and threat of violence, coupled with the antigay epithets,
provided substantial evidence of the bias motivation. (Id. at p. 727.)
       In People v. Lindberg, supra, 45 Cal.4th 1, the defendant confessed to stabbing the
victim to death. The defendant told his cousin he had “killed a jap” (id. at p. 8) “for [the]
racial movement” (id. at p. 9). The defendant was involved in the White power
movement, and evidence found in his home supported the finding he was a White
supremacist. The defendant was known to use derogatory terms to describe minorities
and had previously been involved in an incident where he harassed an Asian man.
       Defendant attempts to distinguish these cases, pointing out in each case the
defendant sought out the victim for the attack. However, nothing in either case requires
the defendant actively seek out the victim so long as the evidence establishes the offense
was racially motivated. As we have explained, the evidence supported a finding the
threats and assault were motivated by the victim’s race. The facts support the reasonable
inference that defendant reacted violently to Johnson’s request because Johnson was
African-American. Johnson testified he did not know defendant, thus there was no
history of animosity between the two. Johnson did not provoke defendant or make any
aggressive gestures toward him, rather he simply requested defendant smoke in a
different area. Significantly, it was at this point defendant singled out Johnson because of
his race. Although one could infer defendant reacted partly because he did not appreciate



                                             28.
the request to move, the evidence also supports the reasonable inference that defendant’s
racial bias was a substantial factor in defendant’s decision to threaten and assault
Johnson. Therefore, defendant’s claim fails.
III.   Trial Court Instruction Regarding Preliminary Hearing Was Not Error
       During trial, Johnson was questioned extensively about statements he made at the
preliminary hearing. During the questioning related to that prior testimony, the trial court
interjected the following:

       “Before you ask a question, let me just explain to the jury, you’ve heard
       references to a preliminary hearing. In the criminal justice process, a
       preliminary hearing is often held as a screening hearing to determine
       whether or not there is sufficient legal reason to go forward with a case to
       ultimate trial. So a preliminary hearing occurs, obviously, before the trial,
       but that is its purpose. It is not the same as a trial. There are different
       procedures and different issues and standards, but it is a screening hearing.”
Defense counsel objected to the above statement, arguing the court’s instruction “could
leave the jury with the idea that there’s already been a hearing that’s determined that
[defendant] is guilty of something or was found to be responsible for something.” On
appeal, defendant argues the instruction usurped the jury’s role and bolstered the
prosecution’s case by in effect telling the jury “some trier of fact first determined that
there was sufficient evidence of the defendant’s guilt to bind him over for trial.” We find
defendant’s argument unpersuasive.
       It is well settled that the jury is the exclusive arbiter of questions of fact and
credibility of witnesses. (§ 1127; People v. Cook (1983) 33 Cal.3d 400, 408, overruled
on other grounds by People v. Rodriguez (1986) 42 Cal.3d 730, 770.) While it is
permissible for a trial court to comment on the evidence (People v. Brock (1967) 66
Cal.2d 645, 650, overruled on another point in People v. Cook, supra, at p. 413, fn. 13;
People v. Cook, supra, at p. 407), it is improper for a court to express to the jury its
opinion as to the defendant’s guilt as such an expression of opinion may invade the
defendant’s right to have a jury decide his guilt or innocence. (People v. Cook, supra, at
pp. 412-413; People v. Rodriguez, supra, at pp. 766-769.) Similarly, a party’s reference

                                              29.
to a prior court’s or jury’s determination of guilt is improper as a defendant is “surely
entitled to a trial uninfected by hearsay references to conclusions which others have
reached.” (People v. Modesto (1967) 66 Cal.2d 695, 715, overruled on other grounds by
People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled on other grounds in People v.
Breverman (1998) 19 Cal.4th 142, 163, and Maine v. Superior Court (1968) 68 Cal.2d
375, 383.)
       Thus, it is clear neither the court nor a party may inform the jury as to its opinion
on guilt or innocence or previous findings of fact by another arbiter. Using this
proposition, defendant claims the trial court’s instruction to the jury describing a
preliminary hearing allowed the jury to infer the court had previously determined there
was “believable evidence of [defendant’s] guilt.” We disagree with defendant’s
conclusion as to the reasonable inference one could draw from the court’s instruction.
The trial court’s comment never informed the jury any factual issue was previously
determined in the case. To the contrary, the court specifically stated the preliminary
hearing is a “screening hearing to determine whether or not there is sufficient legal
reason to go forward with a case to ultimate trial.” (Italics added.) The court further
emphasized, “It is not the same as a trial. There are different procedures and different
issues and standards, but it is a screening hearing.”
       The court’s comment clearly referred to the prior hearing as determining only
legal issues with different procedures and standards than a jury trial. This is important as
the jury was later instructed it was the ultimate trier of fact, while the court was tasked
with determining the law. In accordance with CALCRIM No. 200, the trial court
informed the jury it “must decide what the facts are. It is up to all of you, and you alone
to decide what happened, based only on the evidence that has been presented to you in
this trial.” The court also informed the jurors the court “will now instruct you on the law
that applies to this case” and further instructed they must follow the “law as I explain it to
you, even if you disagree with it.” These instructions provided a distinction between



                                             30.
legal issues to be decided by the court, and factual issues to be decided by the jury. We
must assume the jurors generally understood and faithfully followed these instructions.
(People v. Delgado (1993) 5 Cal.4th 312, 331.)
         Reading the instructions together with the court’s comment on the purpose of a
preliminary hearing, the jury was told any issues decided at the preliminary hearing were
legal ones for the court to decide, not factual ones. There was nothing in the court’s
comment that would lead the jury to conclude any factual issues were resolved by the
court. As the jury was never informed as to the trial court’s opinion as to defendant’s
guilt, nor was it ever informed as to any factual issue resolved by any other trier of fact,
defendant’s claim the jury would have placed undue emphasis on that opinion necessarily
fails.
IV.      The Trial Court Was Required to Instruct on the Lesser Included Offense of
         Attempted Criminal Threats
         Defendant argues the trial court erred in failing to instruct the jury sua sponte on
the lesser included offense of attempted criminal threats as the evidence supported a
finding the victim was not reasonably in sustained fear as a result of defendant’s threats.
We agree.
         Instruction on a lesser included offense must be given sua sponte when the
evidence raises a question whether all of the elements of the charged offense are present
and there is substantial evidence justifying a conviction of such a lesser offense. (People
v. Bradford (1997) 14 Cal.4th 1005, 1055.) “[E]very lesser included offense, or theory
thereof, which is supported by the evidence must be presented to the jury.” (People v.
Breverman, supra, 19 Cal.4th at p. 155.) However, “the existence of ‘any evidence, no
matter how weak’ will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]
‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of




                                               31.
reasonable [persons] could … conclude[]”’ that the lesser offense, but not the greater,
was committed. [Citations.]” (Id. at p. 162.)
       In People v. Toledo (2001) 26 Cal.4th 221, our Supreme Court addressed whether
the crime of attempted criminal threats was a valid offense in California. The court held
such an offense did exist in this state. (Id. at p. 235.) The court explained, as is relevant
to the present case:

       “[I]f a defendant, again acting with requisite intent, makes a sufficient
       threat that is received and understood by the threatened person, but, for
       whatever reason, the threat does not actually cause the threatened person to
       be in sustained fear for his or her safety even though, under the
       circumstances, that person reasonably could have been placed in such fear,
       the defendant properly may be found to have committed the offense of
       attempted criminal threat.” (People v. Toledo, supra, 26 Cal.4th at p. 231.)
“Section 422 … requires that the threat be such as to cause a reasonable person to be in
sustained fear for his personal safety.” (In re Ricky T. (2001) 87 Cal.App.4th. 1132,
1139.) The words, “sustained fear” are not defined in section 422 but have been
interpreted to mean “a period of time that extends beyond what is momentary, fleeting or
transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [“[f]ifteen minutes of
fear” more than satisfies “sustained fear” requirement].) Fear that does not exist beyond
the moments of the verbal encounter does not qualify as “sustained” fear under section
422. (In re Ricky T., supra, at p. 1140.) In evaluating the evidence, “all of the
surrounding circumstances should be taken into account to determine if a threat falls
within the proscription of section 422.” (People v. Solis (2001) 90 Cal.App.4th 1002,
1013; see People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) Thus, the jury can
properly consider a later action taken by a defendant, as well as the victim’s conduct after
the incident, in evaluating whether a victim was in sustained fear as a result of a threat.
(See People v. Solis, at p. 1014.)
       The evidence at trial was sufficient to support the jury’s finding defendant’s threat
to stab Johnson actually caused Johnson to be in sustained fear for his safety, and his fear
was reasonable under the circumstances. However, although sufficient to support his

                                             32.
conviction for making a criminal threat, the jury, if properly instructed, could have also
concluded from the evidence presented that the period between defendant’s threat and his
being subdued on the ground by Johnson was momentary, fleeting or transitory. Johnson
testified when defendant threatened to cut or stab him shortly after he pushed defendant
backwards, he was in fear for his safety. It was at that point Johnson again retrieved his
pepper spray, began shaking it while walking backwards, and then sprayed defendant in
the eyes. According to People’s exhibit 1, the video of the incident, approximately 30
seconds passed from the time Johnson pushed defendant away to the time he deployed his
pepper spray. After deploying the pepper spray, Johnson backed away momentarily, then
approached defendant, knocking him to the ground and securing him in handcuffs. The
jury, in evaluating this evidence, could have concluded Johnson’s fear was not
“sustained.” Indeed, defendant argued during closing arguments any fear experienced by
Johnson during the incident was fleeting. Further, there was evidence adduced at trial
establishing Johnson was younger and larger than defendant, Johnson believed defendant
was intoxicated or senile during the incident, and defendant had trouble standing at one
point during the encounter. In sum, substantial evidence supported a finding Johnson
was not placed in reasonable, sustained fear during the ordeal.
       As the People point out, the failure of a trial court to instruct sua sponte on a lesser
included offense is “evaluated under the generally applicable California test for harmless
error” announced in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman,
supra, 19 Cal.4th at p. 176.) Under this standard, a conviction will be reversed only if it
appears reasonably probable the defendant would have obtained a more favorable
outcome had the error not occurred. (Id. at p. 178.) In making this determination, “an
appellate court may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” (Id. at p. 177.)



                                             33.
       We believe there was a reasonable probability defendant could have obtained a
more favorable outcome if the jury had been instructed on the offense of attempted
criminal threat. The evidence on the question of sustained fear was fairly well balanced.
On the element of sustained fear, the entirety of the evidence was as follows: “[THE
PROSECUTOR:] Q. Okay. Were you in fear for your safety and scared when all of this was
taking place? [¶] A. Yes, ma’am.” On appeal, were we passing simply on the question
of substantial evidence, this evidence is sufficient to support the jury’s verdict. On the
other hand, however, the evidence that any fear was fleeting was also supported by the
record, especially in light of the fact of the relatively brief nature of the encounter and the
fact Johnson never testified as to the duration of his fear. As such, failure to instruct on
the lesser included offense of attempted criminal threats was prejudicial.
       Defendant argues this error requires a reversal of the count. We disagree. Under
section 1260, appellate courts possess the authority to modify a judgment to reflect a
conviction of a lesser and included offense when the evidence warrants it. (People v.
Matian (1995) 35 Cal.App.4th 480, 488.) “‘Where the prejudicial error goes only to the
degree of the offense for which the defendant was convicted, the appellate court may
reduce the conviction to a lesser degree and affirm the judgment as modified, thereby
obviating the necessity for a retrial. [Citations.]’ [Citation.]” (People v. Edwards (1985)
39 Cal.3d 107, 118; People v. Moretto (1994) 21 Cal.App.4th 1269, 1278.) Due process
concerns are not implicated when the trial court modifies the verdict to a lesser and
necessarily included offense, provided the evidence supports a conviction of the lesser
offense. (People v. Matian, supra, at p. 488.)
       In this case, the omitted instruction is relevant only to one element of the charged
offense—sustained fear. When this element is subtracted, the remaining elements
support a conviction of attempted criminal threat. The record contains substantial
evidence supporting this lesser offense.




                                              34.
       Yet, because adequate evidence was presented from which a properly instructed
jury reasonably could convict defendant of the charged offense, the People may wish to
retry defendant on the more serious charge.
       Therefore, the proper disposition is one that preserves both options. This is
accomplished by giving the People the option of retrying the greater offense or accepting
a reduction to the lesser offense. (People v. Edwards, supra, 39 Cal.3d at p. 118
[instructional error results in modification of judgment to lesser offense with retrial
option]; People v. Moretto, supra, 21 Cal.App.4th at pp. 1278-1279 [same]; People v.
Woods (1992) 8 Cal.App.4th 1570, 1596 [same].)7
V.     Section 4019 Conduct Credits
       Defendant’s final contention on appeal is that additional presentence credits
should be awarded to him based upon the amendments to section 4019, operative
October 1, 2011. He argues failure to award the additional credit constitutes a violation
of equal protection principles. This court has previously addressed, and rejected, the
equal protection arguments raised here by defendant in our decision in People v. Ellis
(2012) 207 Cal.App.4th 1546. Defendant acknowledges Ellis but asks this court to
reconsider its opinion. We decline defendant’s invitation.
       Section 4019, subdivision (h) specifically states the changes increasing credits
were to apply prospectively only. In Ellis, we concluded the intent of the Legislature
“was to have the enhanced rate apply only to those defendants who committed their
crimes on or after October 1, 2011.” (People v. Ellis, supra, 207 Cal.App.4th at p. 1553.)
It is undisputed defendant’s offenses were committed before this date.
       “The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally.” (People v.

       7As this disposition requires either a retrial on the criminal threats charge, or a reduction
of the charge to attempted criminal threats and therefore a resentencing by the trial court, it is
unnecessary to reach defendant’s claims on this count related to the improper exercise of
sentencing discretion by the trial court.



                                                 35.
Brown (2012) 54 Cal.4th 314, 328.) Contrary to defendant’s contention, the amendments
to section 4019, operative October 1, 2011, do not treat similarly situated groups in a
disparate manner. (People v. Ellis, supra, 207 Cal.App.4th at pp. 1551–1552.) Rather,
the amendments to section 4019 address “‘future conduct in a custodial setting by
providing increased incentives for good behavior.’” (People v. Ellis, supra, at p. 1551.)
Thus, prisoners serving time before and after the effective date of a statute affecting
conduct credits are not similarly situated for purposes of equal protection analysis.
(People v. Brown, supra, at pp. 329-330.) The correctional purpose of a statute that
rewards behavior is not served by rewarding prisoners who served time in custody prior
to the effective date of the incentives because they could not have modified their behavior
in response to the incentives. (Id. at p. 329.) Because defendant fails to show section
4019 treats “similarly situated” groups unequally, he asserts no cognizable equal
protection claim.
                                      DISPOSITION
       The criminal threats conviction in count 2 is reversed with these directions: If the
People do not bring defendant to trial within 60 days after the filing of the remittitur, the
trial court shall proceed as if the remittitur constitutes a modification of the judgment to
reflect a conviction in count 2 of attempted criminal threat and shall resentence defendant
accordingly. In all other respects, the judgment is affirmed.

                                                           __________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
DETJEN, J.




                                             36.
