P. v. Knight

Filed 4/23/19 P. v. Knight CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
LEON KNIGHT, JR.,
Defendant and Appellant.
2d Crim. No. B284886
(Super. Ct. No. BA444204)
(Los Angeles County)
Leon Knight Jr. suffers from schizophrenia. He appeals
from judgment after conviction by jury of making criminal
threats against his neighbor with personal use of a deadly
weapon (a pair of knives) and assaulting his neighbor with a
deadly weapon (a glass ashtray). (Pen. Code, §§ 422, 12022,
subd. (b)(1), 245, subd. (a)(1).)1 Knight admitted he suffered two
prior serious felony convictions. (§§ 1170.12 and 667, subds. (b)-
(j).)
1 All statutory references are to the Penal Code unless
otherwise stated.

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The trial court granted Knight partial relief from his
strikes pursuant to Romero2 and sentenced him to a total term of
14 years in prison, including two five-year enhancements for the
prior serious felony convictions. (§ 667, subd. (a)).3 At the time,
pre-trial diversion for mental health treatment (§ 1001.36) was
not available and the trial court had no authority to strike the
five-year enhancements. (§ 667, subd. (a).)
We reject Knight’s claim of instructional error and we
reject his challenge to the sufficiency of the evidence. We
conditionally reverse to allow the trial court to consider whether
to grant pre-trial diversion for mental health treatment under
recently enacted section 1001.36. If it does not grant diversion,
or if Knight does not succeed in diversion, we direct the trial
court to reinstate his convictions and to conduct a sentencing
hearing at which it shall consider whether to strike one or more
enhancements pursuant to the recent amendments to sections
667, subdivision (a) and 1385.
FACTUAL AND PROCEDURAL BACKGROUND
Knight and Herbert Russell lived in the same apartment
complex. Russell kept two classic cars in the carport.
Russell testified that when Knight takes his medication, he
is a “great guy” and a “nice person”; but when he does not, he is a
“different person.” Knight sometimes claimed Russell’s cars were
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 The court struck both strikes as to the criminal threats
count and one strike as to the assault count. For the assault, it
sentenced him to a low term of two years, doubled for the strike,
plus two five-year enhancements for the prior serious felonies.
For the threats, it imposed a concurrent three-year high term.

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his. Knight occasionally removed their covers or otherwise
interfered with them.
April 2015 Criminal Threats
One morning in April 2015, Knight removed the cover from
one of Russell’s cars and put it into his storage locker. Russell
heard the car alarm and went to the carport. A butter knife
belonging to Knight’s household was wedged in the car’s door
frame.
When Russell saw Knight sitting nearby, Russell asked
him if he had taken the cover. Knight became angry. He said,
“Don’t ask me something about my car,” and “I tell you this: I’m
going to get a gun.” Russell called 911. He said, “I need a squad
car here. This guy is trying to break in my car.” “He said he’s
going to get his gun.”
Knight went to his apartment and returned with two
butcher knives, each about twelve inches long. He told Russell,
“I’m going to kill you mother-fucker.” Russell called 911 again.
He said, “he’s approaching me with knives.” As the police
arrived, Knight retreated into his apartment.
Police took Knight from the apartment in handcuffs and led
him away. Russell asked the officers not to take Knight to jail.
He asked them to give Knight mental health treatment.
February 2016 Assault
Very early on a February morning in 2016, Russell heard
Knight fighting with the woman with whom Knight lived. She
yelled, “Help, help.” Knight came out of his apartment and hung
underwear on a lamp near Russell’s door. He walked toward the
carport. Russell’s car alarm sounded. Russell went to the
carport and saw that his car’s cover had been removed again. He
saw Knight returning to his apartment. Knight was at the top of

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a stairwell; Russell stood in the parking lot below. Russell told
Knight to stop “messing with these cars.”
Knight said, “get away from my mother-fucking cars before
I kill you.” Russell said he believed “that he would cause [him]
bodily harm.” He “believe[d] he would hurt me.” Knight threw a
glass ashtray “directly” at Russell. Russell jumped out of the way
and the ashtray shattered in the parking lot. Russell called 911.
He said, “He just threw an ashtray or something at me.” Twenty
minutes later, police had not responded and Russell called again.
He said, “The gentleman is approaching me right now as we
speak.” About ten minutes later, Russell called again and said,
“He’s beating his wife right now, he’s about to drag her down the
stairs.”
The woman who lived with Knight testified that Knight did
not throw the ashtray down at Russell. She said Knight threw
the ashtray inside their home, it shattered, and she swept it up
and placed the pieces outside at the bottom of the stairs before
the police came.
At the close of evidence, the prosecutor requested an
instruction on attempted criminal threats. Defense counsel
objected. The court refused the instruction.
In closing, the prosecution argued that Knight made
criminal threats in April when he approached Russell with the
butcher knives and said, “I’m going to kill you mother-fucker,”
that he made criminal threats again in February when he told
Russell, “get away from my mother-fucking cars before I kill you,”
and he assaulted him with a deadly weapon when he threw the
ashtray at him.
Defense counsel argued there was no evidence that Knight
had knives, Knight never threatened to kill Russell, and the
physical evidence did not support his claim that Knight threw an

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ashtray at him. She argued that Russell lied about those things
because he wanted Knight to stop bothering his cars and he could
not get the police to respond unless he told them a person was in
danger.
On the first day of deliberation, the jury announced that it
was unable to reach a verdict except as to the February criminal
threats count. The court instructed it to continue deliberating. It
returned its verdict the following day. They acquitted Knight of
the February criminal threats count and convicted him of the
other two charges.
DISCUSSION
Diversion for Mental Health Treatment
While this appeal was pending, the Legislature enacted
Penal Code section 1001.36, which created a pretrial diversion
program for defendants with mental disorders including
schizophrenia. (Pen. Code, § 1001.36.) If a trial court determines
that a defendant meets its six requirements, and that
recommended mental health treatment will meet his or her
specialized mental health treatment needs, it may grant
diversion and refer the defendant to an approved treatment
program for up to two years. (Ibid.) If they succeed, the charges
may be dismissed. (Ibid.) If their performance is unsatisfactory,
criminal proceedings may be reinstated. (Ibid.)
The pretrial diversion program is ameliorative and applies
retroactively to defendants whose judgments were not final at the
time of its enactment. (People v. Frahs (2018) 27 Cal.App.5th
784, 791 [conditional reversal for section 1001.36 diversion
hearing], superseded in part by statutory amendment excluding
murder from diversion § 1001.36, subd. (b)(2)(A); In re Estrada
(1965) 63 Cal.2d 740, 744-745, 748; see People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 304.) Knight’s appeal was pending

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when section 1001.36 was enacted and its provisions apply to
him.
The Attorney General argues there is evidence to rebut the
inference of retroactive applicability because the statute
describes a program that operates pre-trial. (e.g. § 1001.36, subd.
(c) [“‘pretrial diversion’ means postponement of prosecution . . . at
any point . . . until adjudication”].) The Frahs court rejected
these arguments, relying on Lara. (Frahs, supra, 27 Cal.App.5th
at 791.) In Lara, the Supreme Court concluded that juvenile
transfer hearings under Proposition 57 must be made available to
defendants whose convictions are not yet final on appeal,
although those transfer hearings are designed to occur before
adjudication. (see Lara, supra, 4 Cal.5th at pp. 304, 312-313;
Frahs, supra, at p. 791.)
The Legislature’s stated purpose in enacting section
1001.36 supports broad application: it is intended, “to promote
. . . increased diversion . . . to mitigate . . . reentry into the
criminal justice system while protecting public safety.” (Frahs,
supra, 27 Cal.App.5th at p. 791, italics omitted; 1001.35, subd.
(a).) It is in this respect like Proposition 57, which was intended
to “[s]top the revolving door of crime by emphasizing
rehabilitation, especially for juveniles.” (Voter Information
Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, p. 141, § 2 (4);
Lara, supra, 4 Cal.5th at p. 310.) Its stated purpose similarly
“support[s] the conclusion that Estrada’s inference of
retroactivity is not rebutted.” (Id. at p. 309.)
“[A]lthough [Knight’s] case has technically been
‘adjudicated’ in the trial court, his case is not yet final on appeal.
Thus, we will instruct the trial court -- as nearly as possible -- to
retroactively apply the provisions of section 1001.36, as though

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the statute existed at the time [Knight] was initially charged.”
(Frahs, supra, 27 Cal.App.5th at p. 791.)
Discretion to Strike Serious Felony Enhancements
(SB 1393)
We address Knight’s remaining claims in the event he is
not granted diversion or he does not succeed in the program.
SB 1393, adopted September 30, 2018, amends sections 667
and 1385 to grant trial courts discretion to strike prior
convictions as they relate to five-year enhancements under
section 667, subdivision (a)(1). (See Sen. Bill No. 1393 (2017-
2018 Reg. Sess.) It applies retroactively to all cases with
enhancements imposed under section 667, subdivision (a)(1), in
which judgment was not yet final when it took effect on January
1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) The
trial court did not clearly indicate that it would have imposed the
enhancements even if it had the discretion not to do so, as the
Attorney General concedes. (see People v. McDaniels (2018)
22 Cal.App.5th 420, 425.)
Evidence of Criminal Threats
Knight contends there is not sufficient evidence that he
made criminal threats when he said, “I’m going to kill you mother
fucker,” with knives in his hands. He argues there was
insufficient evidence that he directed a threat at Russell or that
Russell was in sustained fear. He points to Russell’s testimony
that, “I don’t know if he meant it,” “he could have been talking to
his wife,” and “the officer there saw I wasn’t too afraid.” He
argues the 911 calls demonstrate that Russell was more afraid of
his cars being vandalized than of harm to himself, and if Knight
really made criminal threats in April he would have been charged
before the February incident occurred.

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Russell did minimize some facts at trial. As he told the
jury: “I don’t want to say the wrong thing to cause this man a
long time in prison because he needs mental help.” But the
record contains substantial evidence to support the conviction.
(People v. Edwards (2013) 57 Cal.4th 658, 715 [substantial
evidence review].)
The conviction for making criminal threats required proof
that (1) Knight willfully threatened to commit a crime which
would result in death or great bodily injury, (2) with the specific
intent that it be taken as a threat, (3) the threat was so
unequivocal, unconditional, immediate, and specific as to convey
an immediate prospect of execution of the threat, (4) the threat
actually caused Russell to be in sustained fear, and (5) Russell’s
fear was reasonable under the circumstances. (§ 422, subd. (a);
People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Knight points
out that section 422 does not prohibit “mere angry utterances or
ranting soliloquies, however violent.” (People v. Teal (1998) 61
Cal.App.4th 277, 281.) It “was not enacted to punish emotional
outbursts, it targets only those who try to instill fear in others.”
(People v. Felix (2001) 92 Cal.App.4th 905, 913.)
Knight did not merely have an outburst; he threatened to
kill Russell after arming himself with two butcher knives. The
threat was directed at Russell. After Knight said to Russell,
“Don’t ask me something about my car. . . I’m going to get a
gun,” he went to his apartment and returned with both knives
held forward, “coming -- approaching down the stairs,” saying
“I’m going to kill you mother-fucker.”
At trial, Russell said Knight “could have been talking to his
wife,” who was standing next to Knight. But she was not down
the stairs; Russell was. And at the time, Russell told police he
believed Knight was talking to him. At trial, he acknowledged

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that was “the truth.” He added, “But for the record, I don’t wish
this gentleman to go to prison. I know he has mental illness. I
would like for him to be admitted to mental health.”
A jury could find Russell was in reasonable and sustained
fear. He testified he “fe[lt] threatened,” when Knight said he was
going to get a gun. He told the 911 operator that Knight “said he
was going to get his gun, so I need a patrol car here.” He said he
did not believe Knight was going to get a gun, but he was “afraid
of” Knight “because [he knew] he has a mental illness.” Russell
testified he was “more” afraid of Knight when he came out with
the knives, “because he had weapons in his hands.” He said,
“when I seen the knives I got far away from him, period, in the
middle of the parking lot.” When Knight threatened to kill him,
Russell “felt he would do it.” He felt Knight was “capable of doing
it,” and “in fact, would try to harm [him].”
Russell testified, “I wasn’t afraid. It was just the way I felt
. . . ,” but he was describing a moment after Knight had been
handcuffed and was being led away by police. When he said, “the
officer there saw I wasn’t too afraid,” he was also describing the
aftermath. Russell testified that Knight went back into his
apartment as soon as he heard the sirens. When counsel asked
Russell to clarify whether he felt Knight “in fact, would try to
harm you?” Russell answered, “Yes, Ma’am.”
Instruction on Attempted Criminal Threats
Knight contends the court should have instructed the jury
on the lesser included crime of attempted criminal threats, over
his objection. We disagree. He invited any error, and any error
was harmless.
Attempting to make a criminal threat is a lesser included
offense of making a criminal threat. (In re Sylvester C. (2006)
137 Cal.App.4th 601, 609.) Trial courts have a sua sponte duty to

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instruct on lesser included offenses that are supported by the
evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.)
The duty arises if there is substantial evidence which, if accepted
would absolve the defendant from guilt of the greater offense but
not the lesser. (People v. Waidla (2000) 22 Cal.4th 690, 733.) The
purpose is to prevent either party from forcing an all-or-nothing
choice, and to encourage a verdict that is no harsher nor more
lenient than the evidence merits. (People v. Smith (2013) 57
Cal.4th 232, 239-240.) We review de novo the trial court’s
decision not to instruct on the lesser included offense, viewing the
evidence in the light most favorable to the defendant. (Waidla at
p. 733.)
The obligation to instruct on lesser included offenses exists
even when a defendant expressly objects. (People v. Souza (2012)
54 Cal.4th 90, 114.) But any error is waived if defense counsel
intentionally invites it “express[ing] a deliberate tactical purpose
in resisting . . . the complained-of instruction.” (People v. Valdez
(2004) 32 Cal.4th 73, 115 [no invited error where the record was
ambiguous whether counsel rejected all, or only some,
instructions on lesser included offenses].)
“If counsel was ignorant of the choice, or mistakenly
believed the court was not giving it to counsel, invited error will
not be found. If, however, the record shows this conscious choice,
it need not additionally show counsel correctly understood all the
legal implications of the tactical choice. Error is invited if
counsel made a conscious tactical choice.” (People v. Cooper
(1991) 53 Cal.3d 771, 831 [invited error where the record
demonstrated counsel believed it was in his client’s interest not
to have a second degree murder instruction].)
The record demonstrates that Knight’s counsel made a
deliberate, tactical choice not to have an attempted threat

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instruction. She suggested that, without it, the chances of
acquittal were greater. The record clearly demonstrates that the
trial court gave her a choice: “The Court: . . . You’re still
opposing giving the instruction? . . . [Defense Counsel]: Yes, Your
Honor. . . . The Court: Okay. I don’t think it is warranted here
really.”
Even if the error were not invited and if a jury could have
disbelieved Russell about fear while believing him about the
threat, any error was harmless. (People v. Breverman (1998)
19 Cal.4th 142, 165.) The evidence was overwhelming that
Knight was guilty of the greater offense. Russell testified that
Knight approached him with butcher knives saying he would kill
him. Russell testified consistently that he believed Knight was
capable of executing the threat and he was afraid until the police
came. Any reasonable person in his position would feel the same.
Evidence of Assault with a Deadly Weapon
Knight contends there is insufficient evidence to support a
finding that he assaulted Russell with a deadly weapon because
the size, shape, and weight of the ashtray were uncertain and he
did not use it in a manner likely to produce death or great bodily
injury. Substantial evidence supports the conviction.
For purposes of section 245, subdivision (a), a deadly
weapon is any object, instrument, or weapon which is used in
such a manner as to be capable of producing and likely to
produce, death or great bodily injury. (People v. Aguilar (1997)
16 Cal.4th 1023, 1028-1029.) “[F]or an object to qualify as a
deadly weapon based on how it was used, the defendant must
have used the object in a manner not only capable of producing
but also likely to produce death or great bodily injury.” (In re
B.M. (2018) 6 Cal.5th 528, 530, italics omitted.) “‘[T]he trier of
fact may consider the nature of the object, the manner in which it

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is used, and all other facts relevant to the issue.’” (Id. at p. 533.)
We review the record for substantial evidence to support its
determination. (Ibid.)
Russell testified that Knight threw the ashtray from a
second floor landing, “exactly at me,” “directly at me.” Russell
had to jump to avoid being hit, and the ashtray shattered on the
pavement. In the 911 call, Russell described the object as “glass
bottles” or “like an ashtray.” At trial he described it as an
ashtray. The woman who lived with Knight testified it was a
“heavy,” “thick solid glass” ashtray. The potential harm to
Russell was more than slight, superficial, or moderate.
The ashtray was like the bottles that were thrown or used
to hit people in People v. Cordero (1949) 92 Cal.App.2d 196, 199
and People v. Martinez (1977) 75 Cal.App.3d 859, 862 and like the
metal showerhead that was thrown in People v. White (2015) 241
Cal.App.4th 881, 885. Each of these was sufficient to sustain
convictions for assault with a deadly weapon or by means likely
to produce great bodily injury.
Knight contends his intent was not clear; he could have
been aiming at the cars. But Russell testified Knight threw the
object directly at him. Assault with a deadly weapon is a general
intent crime. Knight must only have intentionally engaged in
conduct that would likely produce injurious consequences.
(People v. Colantuono (1994) 7 Cal.4th 206, 214-215.) The jury
could infer he did so from Russell’s testimony that he “was
looking right at [Russell],” and “threw the object at [him].” The
use of the described force is what counts, not the intent with
which it is employed. (Ibid.)
DISPOSITION
The judgment is conditionally reversed. The cause is
remanded to the superior court with directions to conduct a

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diversion eligibility hearing pursuant to section 1001.36. If the
trial court determines that Knight qualifies for diversion, the
court may grant diversion. We express no opinion on that
determination.
If the trial court grants diversion and Knight successfully
completes diversion, then the trial court shall dismiss the
charges. If however the court does not grant diversion, or Knight
does not successfully complete diversion, then his convictions
shall be reinstated.
If Knight’s convictions are reinstated, the trial court shall
resentence defendant, considering whether to exercise its
discretion pursuant to sections 667(a) and 1385(b), as amended
by Senate Bill 1393. We express no opinion with respect to that
decision.
NOT TO BE PUBLISHED.
PERREN, J.
I concur:
GILBERT, P. J.

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YEGAN, J., Dissenting:
I respectfully dissent from that portion of the judgment
that remands the case for consideration of the newly enacted
mental health diversion statute. (Pen. Code, § 1001.36.)1 The
original statute applied “across the board” to every crime that
could be committed in California. It was amended to exclude
eight specified crimes and other exclusions. This of course does
mitigate the sweeping nature of the mental health diversion
statute. But even with the amendment, the statute is poorly
thought out and poorly drafted. One example is all that is
necessary to see the problem. In theory, a person who uses a
firearm and assaults the Governor, a Legislator, a Judge, or a
peace officer, can be diverted so long as the victim is only
wounded. This is beyond unwise. In my opinion, and as I shall
explain, the statute is unconstitutional.2
Appointed and elected officials take an oath of office to
support and defend, inter alia, the California Constitution. As
Justice Mosk has said, the Goddess of Justice should not wear a
black arm band and weep for the California Constitution.
(Brosnahan v. Brown (1982) 32 Cal.3d 236, 299 (dis. opn. of
Mosk, J.) (Brosnahan).) If the people of the State of California
want a mental health diversion statute, they may amend the
constitution. But as I explain, the Legislature may not lawfully,
by statute, amend the Constitution and abrogate other express
constitutional provisions.
1 All further statutory references are to the Penal Code
unless otherwise stated.
2 This is not raised as an issue on appeal. But a justice
cannot, consistent with the oath of office, apply a statute which
he or she believes violates the California Constitution.

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The mental health diversion statute abrogates the
constitutional rights given to crime victims in California
Constitution Article I, section 28. It abrogates the people’s
constitutional right to a jury trial in Article I, section 16. It
abrogates the people’s constitutional rights to due process of law
and a speedy and public trial in Article I, section 29. It abrogates
or at least chills the Executive Branch of Government’s
constitutional right to grant immunity for crime.
An initiative approved by the electorate can be amended by
the Legislature, but that process is subject to restriction. As
noted in Proposition 103 Enforcement Project v. Charles
Quackenbush (1998) 64 Cal.App.4th 1473. “Article II, section 10,
subdivision (c) of the California Constitution prohibits the
Legislature from amending an initiative measure unless the
initiative measure itself authorizes legislative amendment.
[Citations.]” (People v. Hochanadel (2009) 176 Cal.App.4th 997,
1011.) The purpose of California’s constitutional limitation on
the Legislature’s power to amend initiative statutes is to “‘protect
the people’s initiative powers by precluding the Legislature from
undoing what the people have done, without the electorate’s
consent.’ [Citations.]” (Proposition 103 Enforcement Project v.
Charles Quackenbush, supra, at p. 1484.)
Prosecutor’s Rights
The Legislature may not, by statute, abrogate
constitutional rights guaranteed to the executive branch of
government, i.e., the prosecutor. The statute runs roughshod
over the separation-of-powers principle of our government. It
chills the prosecutor’s charging function. (See, e.g., People v.
Garcia (1986) 183 Cal.App.3d 335, 344.) It takes little
imagination to envision a prosecutor asking himself or herself
whether he or she should even file charges which may culminate

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in diversion. Parenthetically I note that it also chills present
sanity provisions (§ 1368), “not guilty by reason of insanity”
provisions (§ 1026), and mentally disordered offender provisions
(§ 2960).
The statute, in effect, allows what is tantamount to a grant
of immunity for serious and violent crime. This is astonishing.
Traditionally, this is left to the prosecutor’s sole discretion. Why?
Because the grant of immunity by the prosecutor is part of the
charging process afforded to the executive branch of government
by the separation of powers principle. (See, e.g., People v. Birks
(1998) 19 Cal.4th 108, 134; In re Webber (l974) 11 Cal.3d 703,
720; People v. Andreotti (2001) 91 Cal.App.4th 1263, 1268; People
v. Valli (2010) 187 Cal.App.4th 786, 801.) This is now a judicial
call. Just how the Legislature may curtail rights traditionally
exercised by the Executive Branch of Government and transfer
them to the Judicial branch of Government is not explained.
The statute erases the People’s constitutional right to a
jury trial. (Cal. Const., art. I § 16; see People v. Whitmore (1967)
251 Cal.App.2d 359, 364-365.) Also erased from the California
Constitution is Article I, section 29: “‘In a criminal case, the
people of the State of California have the right to due process of
law and to a speedy and public trial.’” (Miller v. Superior Court
(1999) 21 Cal.4th 883, 892-893.) It is one thing for the
Legislature to provide for diversion for a distinct class of class of
crimes, e.g., diversion for non-violent drug offenses, but quite
another thing to provide for diversion for almost the entire Penal
Code. Indeed, it can fairly be said that the statute repeals, or at
the very least, suspends the entirety of procedural criminal law.
Victim’s Rights
Passed by initiative in l982, Proposition 8 added section 28
to the California Constitution. In relevant part, it provides: “The

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rights of victims pervade the criminal justice system,
encompassing not only the right to restitution from wrongdoers
for financial losses suffered as a result of criminal acts, but also
the most basic expectation that persons who commit felonious
acts causing injury to innocent victims will be appropriately
detained in custody, tried by the courts, and sufficiently punished
so that the public safety is protected and encouraged as a goal of
highest importance.” (See Brosnahan, supra, 32 Cal.3d at p. 242,
italics omitted.) In my view, this is a list of rights afforded to the
victims of crime which cannot be abrogated except by amendment
to the constitution and not by simple statute. The victim of crime
also has a constitutional right to be heard at sentencing. (Cal.
Const., art. I, § 28, subd. (b)(8).) The net effect of the mental
health diversion statute is that these constitutional provisions
have now been erased.
The Instant Case
The very facts of this case illustrate that the statute, in
theory, is beyond unwise. Appellant has mental problems,
schizophrenia, that should be dealt with in the traditional way.
He is no stranger to the criminal justice system and even on
paper, he is dangerous. He has twenty-six entries on his “rap
sheet.” And, as indicated in the majority opinion, he is once
again committing violent crime. The most recent probation
report indicates as follows: “The defendant has a long prior
criminal history spanning over 30 years. He has numerous
felony and misdemeanor convictions including time served in
prison. [¶] [¶] The defendant’s actions were violent, serious and
criminal. He poses an immediate threat to the community and
should be held accountable for his actions. The defendant has
previous grants of probation and parole, and has yet to be

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deterred from his criminal behavior. Therefore, state prison is
recommended.”
Whether appellant can be rehabilitated short of criminal
prosecution is not even debatable. Even if he is diverted and
medicated in a locked facility for two years, he will be released.
After conviction and sentence, remand for mental health
diversion at this late date is beyond a “longshot.” Appellant will
not voluntarily take his medication. How do I know this? Not
taking his medication was a factor in the commission of the
instant offenses. I would not want to be the sentencing judge
trying to explain to the next victim that the new mental health
diversion experiment just did not work.
NOT FOR PUBLICATION.
YEGAN, J.

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Craig E. Veals, Judge
Superior Court County of Los Angeles
______________________________
Stanley Dale Radtke, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Jason Tran, Jonathan J. Kline, Kim Aarons
and David D. Williams, Deputy Attorneys General, for Plaintiff
and Respondent.

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