P. v. Booker

Filed 5/10/19 P. v. Booker CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD EARL BOOKER,
Defendant and Appellant.
B286842
(Los Angeles County
Super. Ct. No. GA099455)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Villalobos, Judge. Conditionally
reversed in part and remanded with directions.
Roberta Simon, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.

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I. INTRODUCTION
A jury convicted defendant and appellant Donald Earl
Booker of assault with a deadly weapon (Pen. Code, § 245, subd.
(a)(1))1, attempted murder (§§ 664/187, subd. (a)), and mayhem
(§ 203). As to each offense, the jury found true the allegation that
defendant personally inflicted great bodily injury. (§ 12022.7,
subd. (a).) The trial court sentenced defendant to 45 years to life
in state prison.
On appeal, defendant contends the trial court erred in
excluding impeachment evidence; in failing to instruct the jury on
the lesser included offense of attempted voluntary manslaughter,
on the victim’s antecedent threats, that his extrajudicial
statement threatening to kill his victim should be viewed with
caution, and that a box cutter is an inherently dangerous
weapon; in denying a mistrial; and in denying his request for a
competency hearing, the judgment must be conditionally reversed
and remanded for the trial court to conduct a diversion eligibility
hearing pursuant to section 1001.36; the matter must be
remanded so the trial court can exercise its discretion about
whether to strike two sentencing enhancements under section
667, subdivision (a); and the cumulative prejudicial effect of the
trial court’s errors requires reversal. We conditionally reverse
defendant’s assault with a deadly weapon, attempted murder,
and mayhem convictions and remand for a hearing to determine
his eligibility for a mental health diversion program pursuant to
section 1001.36.
1 All further statutory citations are to the Penal Code unless
otherwise noted.

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II. BACKGROUND
Dale Ross had known and been friends with defendant and
Treopia Ross for about 20 years.2 He testified that at around
9:00 a.m. on August 11, 2016, he and Treopia drank beer and
smoked crystal methamphetamine at his house.
After smoking methamphetamine for about an hour, Dale
and Treopia went to the Sparr liquor store. Defendant was at the
parking lot. Defendant and Treopia spoke. Dale was close by.
He did not remember hearing defendant tell Treopia that he was
going to kill her.
At some point, Dale saw defendant take a swing at Treopia.
Dale though they were playing, “like sand boxing or something.”
Defendant and Treopia struggled for about 20 or 30 seconds.
They were swinging at each other—Treopia threw punches.
During the altercation, Dale did not see either defendant or
Treopia in possession of a box cutter. He had previously seen
Treopia with knives—“everybody around there carries knives and
stuff.” He saw her with a knife earlier that day.
At about 8:46 a.m. on August 11, 2016, Deciderio Flores
was driving on Huntington Drive in Duarte. He saw defendant
chasing Treopia. When defendant got close to Treopia he would
“swing[] on” her. He did not see Treopia swing at defendant. It
appeared that defendant had something that looked like a knife
in his hand. Treopia screamed for help. Flores believed that
Treopia was going to be hurt and called the police.
2 Because Dale Ross and Treopia Ross share a last name, we
will refer to them by their first names for clarity.

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Flores testified that Treopia and defendant ran into a
liquor store. At some point, defendant came out and walked
swiftly to a Carl’s Jr. across the street.
Treopia testified that she had been convicted of
misdemeanor assault with a deadly weapon in 2006 and felony
forgery in February 2007. She had felony charges pending for
allegedly striking and pepper spraying her 70-year-old father.
At about 8:40 a.m. on August 11, 2016, Treopia was at the
Sparr liquor store in Duarte. Defendant was in the parking lot
when she arrived. Treopia called Dale, who she knew was at the
Carl’s Jr. At some point, Treopia approached Dale because she
wanted to go to his house to dye her hair—she was homeless at
the time.
As Treopia and Dale spoke, defendant said, “Hey, Dale,”
and motioned to Dale to come over. Dale went to defendant to
see what he wanted. Treopia went into the liquor store and
spoke to a store employee for 10 or 15 minutes.
Treopia then left the store and asked Dale, “‘Dale, you
ready?’” Dale appeared not to hear Treopia and so approached
her. Defendant remained behind. Defendant then asked, “‘What
you doing talking about me?’” Dale walked back and forth
between Treopia and defendant. At some point, defendant
walked with Dale to Treopia.
Defendant “was looking [Treopia] up and down.” She asked
him, “‘Why are you maddogging me, looking me up and down like
that?’” Defendant said, in a normal tone of voice, “Bitch, shut up.
I’m going to kill you.” Defendant then swung at Treopia and she
put her hand up so he would not hit her in the face. Treopia had
not threatened defendant or swung at him.

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Defendant’s blow, with a box cutter, made contact with the
palm of Treopia’s right hand and cut her. Defendant then tried
to pull Treopia’s hair back and cut her throat. To defend herself,
Treopia put her “hands up, like to square off with him” in a
fighting position. Defendant then cut Treopia’s left hand, cutting
her to the bone.
Treopia ran into the street and screamed for help and for
someone to call the police. Defendant pursued and tried to catch
her. Treopia ran inside the Sparr liquor store. Defendant
followed her. Treopia asked the liquor store employee to call the
police.
Treopia was taken to the hospital where she had surgery on
her hands that lasted five or six hours. She had casts on her
hands for two weeks and could not use them. Treopia was in a lot
of pain when she left the hospital. She suffered lasting
impairment to one of her hands that prevented her from
continuing her employment braiding hair.
Deputy Sheriff Brendon Jackson responded to the Sparr
liquor store. There, he spoke with Dale. Dale said he was
standing with Treopia in a dirt lot when defendant approached.
Treopia asked defendant, “Why you looking me up and down?”
Defendant responded, “Shut up, bitch; I’ll kill you.”
III. DISCUSSION
A. The Trial Court’s Evidentiary Rulings
Defendant contends that the trial court abused its
discretion when it did not permit him to cross-examine Treopia
about the claimed lasting impairment to one of her hands by

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asking if she punched her father in the months after defendant
cut her. The trial court also erred, he contends, when it
prevented him from cross-examining Dr. Hu, the surgeon who
operated on Treopia’s hands, and Treopia about whether Treopia
had methamphetamine in her system on the day of the incident.
The evidence was relevant, defendant contends, to impeach
Treopia and “to show that events in the parking lot did not occur
the way the jury found they did.”
The exclusion of the evidence was prejudicial, defendant
argues, because “[n]o evidence was presented as to why this fight
happened. We don’t know where the box cutter came from, or
what started the fight. It could have been that Treopia Ross
started the fight and [defendant] was defending himself. Treopia
Ross had charges filed against her. It could have been that she
was trying to get on the good side of law enforcement, and what
she was saying was not true. She could have been embellishing.
Treopia Ross was the only person from whom any evidence of
whether [defendant] had the intent to kill came from. Had
defense counsel been able to impeach her as he requested, the
jury could well have found the events in the parking lot occurred
differently.”
Only relevant evidence is admissible. (Evid. Code, § 350.)
“‘Relevant evidence’ means evidence, including evidence relevant
to the credibility of a witness . . . having any tendency in reason
to prove or disprove any disputed fact that is of consequence to
the determination of the action.” (Evid. Code, § 210.) In
determining a witness’s credibility, a jury may consider “any
matter that has any tendency in reason to prove or disprove the
truthfulness of his testimony.” (Evid. Code, § 780.)

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We review a trial court’s ruling on the exclusion of evidence
for an abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th
79, 131.) The erroneous exclusion of evidence is governed by the
standard of prejudice set forth in People v. Watson (1956) 46
Cal.2d 818, 836 (Watson). (People v. McAlpin (1991) 53 Cal.3d
1289, 1311.) Under that standard, the erroneous exclusion of
evidence is harmless unless it is reasonably probable that a
result more favorable to the defendant would have been reached
had the evidence been admitted. (Watson, supra, 46 Cal.2d at
p. 836.)
In response to Treopia’s testimony that she suffered lasting
impairment to one of her hands, defense counsel requested that
the trial court allow him to ask Treopia whether she was still
able to strike people with her fist, specifically, if she was able to
strike her father five months after defendant attacked her.
Defense counsel argued the evidence would impeach Treopia and
would show a propensity for violence. The trial court ruled that
defense counsel could ask Treopia whether she could make a fist
or maneuver her hand, but not if she was able to punch someone.
Defense counsel also sought to introduce and ask Dr. Hu
about Treopia’s medical records that showed, among other things,
a history of drug and alcohol abuse and that Treopia tested
positive for methamphetamine on the day of the attack. He
further requested to cross-examine Treopia about her substance
abuse that day. The evidence of Treopia’s methamphetamine
use, defense counsel argued, would impeach Treopia’s testimony
that she did not use methamphetamine that day. The trial court
excluded the evidence as irrelevant and immaterial. It further
found that the evidence was highly prejudicial and that its

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presentation would be unduly time consuming under Evidence
Code section 352.
Even assuming the trial court erred in excluding the
evidence, any such error was harmless. First, Treopia’s
credibility was independently impeached with evidence of her
prior misdemeanor assault with a deadly weapon and felony
forgery convictions. Second, Dale testified that on the morning
prior to the attack, he and Treopia smoked methamphetamine for
about an hour at his house, which further impeached Treopia’s
testimony about her drug use. Third, the version of the incident
at the Sparr liquor store parking lot that the jury heard from
Treopia was largely corroborated. She testified that defendant
approached her, looked her up and down, called her a “bitch,” and
said he was going to kill her. Defendant then swung at her twice,
slashing both of her hands with a box cutter, and attempted to
slit her throat. She testified that she did not swing at defendant.
Dale testified he saw defendant and Treopia swing at each other.
Deputy Jackson testified that Dale told him that defendant called
Treopia a “bitch” and said he was going to kill her. Flores
testified he saw defendant chase Treopia and swing at her. He
further testified that defendant appeared to have something in
his hand that looked like a knife. Flores did not see Treopia
swing at defendant. Given such evidence, it is not reasonably
probable that a result more favorable to defendant would have
been reached had defendant’s impeachment evidence been
admitted. (Watson, supra, 46 Cal.2d at p. 836.)

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B. Instructions on the Lesser Included Offense of Attempted
Voluntary Manslaughter
Defendant contends that the trial court erred in failing to
instruct the jury on the lesser included offense of attempted
voluntary manslaughter based on the theories of imperfect self-
defense and heat of passion. Because substantial evidence
supported neither theory, the trial court did not err.
1. Standard of Review
Attempted voluntary manslaughter is a lesser included
offense of attempted murder. (People v. Prunty (2015) 62 Cal.4th
59, 69.) A trial court must instruct, sua sponte, on all theories of
a lesser included offense that are supported by substantial
evidence, but not those without such evidentiary support. (People
v. Breverman (1998) 19 Cal.4th 142, 162.) “[T]he 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 reasonable [persons] could . . .
conclude[]’” that the lesser offense, but not the greater, was
committed. [Citations.]” (Ibid.)

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2. Analysis
a. Imperfect self-defense
“‘Under the doctrine of imperfect self-defense, when the
trier of fact finds that a defendant killed another person because
the defendant actually, but unreasonably, believed he was in
imminent danger of death or great bodily injury, the defendant is
deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.’ [Citation.] As
[the Supreme Court] explained in People v. Barton (1995) 12
Cal.4th 186, 200-201 . . . imperfect self-defense is not an
affirmative defense, but a description of one type of voluntary
manslaughter. Thus the trial court must instruct on this
doctrine, whether or not instructions are requested by counsel,
whenever there is evidence substantial enough to merit
consideration by the jury that under this doctrine the defendant
is guilty of voluntary manslaughter. [Citation.]” (People v.
Michaels (2002) 28 Cal.4th 486, 529.)
Defendant contends that the trial court should have given
an imperfect self-defense instruction because Dale testified that
he saw Treopia fighting with defendant, everyone in the area
carried a knife, and defense counsel raised a lot of questions
regarding Treopia’s trustworthiness. That evidence, defendant
contends, “sufficiently portrayed [him] as acting in unreasonable
belief that he was in imminent danger of death or great bodily
injury.” We disagree. No evidence was adduced that Treopia was
armed with a knife during her struggle with defendant, that
defendant believed Treopia was armed with a knife, or that

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defendant actually believed that an armed Treopia posed an
imminent danger of death or great bodily injury.
b. Heat of passion
Heat of passion arises when the victim has engaged in
provocative conduct such that “‘“at the time of the killing, the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.”’
[Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 59.) Heat of
passion voluntary manslaughter has an objective element—did
the victim engage in conduct that would provoke a reasonable
person to kill, and a subjective element—was the defendant
actually acting under the influence of a strong passion when he
killed. (People v. Wickersham (1982) 32 Cal.3d 307, 327
disapproved on another ground by People v. Barton (1995) 12
Cal.4th 186, 201.)
There was no evidence that Treopia did or said anything
sufficiently provocative to cause an average person to react with
deadly passion. (People v. Wickersham, supra, 32 Cal.3d at
p. 327.) Also, there was no evidence that defendant acted under
the influence of such a passion. (Ibid.) Defendant admits as
much when he argues that “[w]e don’t know what happened” in
the parking lot and “[n]o evidence was presented as to why the
fight occurred.” Accordingly, the trial court did not err when it
did not give a heat of passion voluntary manslaughter
instruction.

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Defendant argues that the objective element of heat of
passion was satisfied because “Treopia Ross may have engaged in
conduct ‘sufficiently provocative to cause an ordinary person of
average disposition to act rashly, or without due deliberation and
reflection,’ and lunge at her with a box cutter.” He argues the
subjective element was satisfied because he “could have swung at
Treopia while under the actual influence of a strong passion
induced by provocation.” Defendant’s speculative argument and
failure to cite any supporting evidence is dispositive. (People v.
Breverman, supra, 19 Cal.4th at p. 162 [a trial court has no sua
sponte duty to instruct on a lesser included offense not supported
by evidence].)
C. Antecedent Threats Instruction
Defendant contends that the trial court erred by omitting
from CALCRIM No. 34703 (Right to Self-Defense or Defense of
3 The trial court instructed the jury with CALCRIM No. 3470
as follows:
“Self[-]defense is a defense to Assault With a Deadly
Weapon, Attempted Murder and Mayhem. The defendant is not
guilty of those crimes if he used force against the other person in
lawful self[-]defense.
“The defendant acted in lawful self[-]defense if, one, the
defendant reasonably believed that he was in [im]minent danger
of suffering bodily injury or was in imminent danger of being
touched unlawfully.
“Two, the defendant reasonably believed that the
immediate use of force was necessary to defend against that
danger, and, three, the defendant used no more force than was
reasonably necessary to defend against that danger.

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Another (Non-Homicide)) two optional or bracketed paragraphs4
that he contends would have allowed the jury to consider
“Belief in future harm is not sufficient no matter how great
or how likely the harm is believed to be. The defendant must
have believed there was imminent danger of bodily injury to
himself or imminent danger that he would be touched unlawfully.
The defendant’s belief must have been reasonable and he must
have acted because of that belief.
“The defendant is only entitled to use that amount of force
that a reasonable person would believe is necessary in the same
situation. If the defendant used more force than was reasonable,
the defendant did not act in lawful self-defense.
“When deciding whether the defendant’s beliefs were
reasonable, consider all the circumstances as they were known to
and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have
believed. If the defendant’s beliefs were reasonable, the danger
does not need to have actually existed.
“A defendant is not required to retreat. He or she is
entitled to stand his or her ground and defend him or herself and
if reasonably necessary to pursue an assailant until the danger of
bodily injury has passed. This is so even if safety could have been
achieved by retreating.
“The People have the burden of proving beyond a
reasonable doubt that the defendant did not act in lawful
self[-]defense. If the People have not met this burden, you must
find the defendant not guilty of Assault With a Deadly Weapon,
Attempted Murder or Mayhem.”
4 CALCRIM No. 3470 has five optional paragraphs that may
be given depending on the facts in a case. Defendant does not
specify which two paragraphs were erroneously omitted. It
appears, however, that he is referring to the following two
paragraphs:

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evidence that Treopia previously harmed someone in deciding
whether defendant had a reasonable belief in the need to defend
himself, even if he did not know about the prior assault. The
trial court did not err.
We apply the de novo standard of review when assessing
whether jury instructions correctly state the law. (People v. Posey
(2004) 32 Cal.4th 193, 218.) A trial court is required to instruct
on a defense “if, but only if, substantial evidence support[s] the
defense.” (People v. Watson (2000) 22 Cal.4th 220, 222.)
During a discussion of jury instructions, the trial court
stated it was going to instruct with CALCRIM No. 3470, but that
it would omit paragraphs that related to Treopia’s history of
violence that might have been known to defendant because it had
not permitted the introduction of such evidence. Defense counsel
stated his continuing disagreement with the trial court’s
evidentiary ruling, adding that the requested optional
paragraph—“If you find that Treopia Ross threatened or harmed
the defendant or others in the past, you may consider that
information in deciding whether the defendant’s conduct and
beliefs were reasonable”—allowed the jury to consider Treopia’s
prior assaultive behavior regardless of whether defendant was
aware of it.
“[If you find that <insert name of victim> threatened or
harmed the defendant [or others] in the past, you may consider
that information in deciding whether the defendant’s conduct and
beliefs were reasonable.]
“[If you find that the defendant knew that <insert name of
victim> had threatened or harmed others in the past, you may
consider that information in deciding whether the defendant’s
conduct and beliefs were reasonable.]” (CALCRIM No. 3470.)

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The prosecutor stated his belief that the important part of
the requested paragraph was whether defendant’s conduct and
beliefs were reasonable, that is, defendant’s beliefs based on
Treopia’s prior bad acts; and there had been no evidence
defendant knew about any prior bad acts.
The trial court stated that under defense counsel’s offer of
proof, there was no evidence that Treopia had threatened or
harmed defendant in the past. Defense counsel responded that
he was not relying on the part of the paragraph that concerned
prior threats or harm to defendant. The trial court stated it
understood defense counsel’s request concerned prior threats or
harm to others and that it was defense counsel’s position that the
paragraph was appropriate even if defendant did not know of any
such threats or harm. It ruled that it did not have to decide
whether the paragraph required defendant to have knowledge of
prior threats or harm to others because there had been no
evidence Treopia had threatened or harmed others in the past.
Defense counsel noted the jury had heard that Treopia had
been convicted of assault with a deadly weapon. The trial court
responded that such evidence had been admitted for
impeachment and the jury had not heard about the conduct
underlying the conviction. Defense counsel stated the reason the
jury had not heard about the underlying conduct was because the
trial court had precluded its admission. The trial court agreed,
and stated it would not give “those paragraphs.”
Defendant argues the trial court should have given the first
optional paragraph—“If you find that [Treopia Ross] threatened
or harmed the defendant or others in the past, you may consider
that information in deciding whether the defendant’s conduct and
beliefs were reasonable”—because “there was sufficient evidence

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of antecedent threats to another.” The jury had heard that
Treopia had been convicted of misdemeanor assault with a deadly
weapon in 2006.5
The trial court properly rejected defendant’s request for the
optional paragraph. The purpose of that paragraph is to guide
the jury in evaluating evidence that might bear on the
reasonableness of a defendant’s conduct and beliefs in support of
the jury’s self-defense determination and thus requires for its
justification substantial evidence that a defendant knew of the
victim’s prior threats or harm to others. (People v. Bates
(May 7, 2019, C086471) ___ Cal.App.5th ___ [2019 Cal.App. Lexis
416, *13-15].) There was no evidence adduced at trial that
defendant knew of Treopia’s 2006 misdemeanor assault with a
deadly weapon conviction.
Defendant argues the trial court should have given the
second optional paragraph—“If you find that the defendant knew
that [Treopia Ross] had threatened or harmed others in the past,
you may consider that information in deciding whether the
defendant’s conduct and beliefs were reasonable”—because
defendant “grew up in the same city as Treopia” and “[i]t is
conceivable that he knew of her assaultive behavior.” There are
two problems with defendant’s argument. First, he did not
request that the trial court give this optional paragraph and thus
has forfeited this issue on appeal. (People v. Andrews (1989) 49
5 Based on a pretrial discussion of evidence offered for
impeachment, defendant asserts that Treopia also had a 1993
conviction for misdemeanor assault with a deadly weapon.
Because the trial court ruled evidence of that conviction
inadmissible and the jury never learned of it, that conviction
could not serve as the basis for the requested paragraph.

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Cal.3d 200, 218 [“Generally, a party may not complain on appeal
that an instruction correct in law and responsive to the evidence
was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language”].) Second, as with
the first optional paragraph, there was no evidence adduced at
trial supporting the instruction. (See People v. Bates, supra,
___ Cal.App.5th ___ [2019 Cal.App. Lexis 416, *13-15].) That is,
there was no evidence that defendant knew of Treopia’s 2006
misdemeanor assault with a deadly weapon conviction. The
speculative proposition that defendant conceivably could have
known of the prior conviction because he and Treopia grew up in
the same city falls far short of substantial evidence justifying the
paragraph.
D. CALCRIM No. 358
Defendant asserts that the trial court erred in denying his
request that it add to CALCRIM No. 3586 the advisement that
the jury was to consider with caution any extrajudicial statement
he made that tended to show his guilt unless the statement was
written or otherwise recorded. The trial court should have
granted defendant’s request, but the error was harmless.
6 The trial court instructed the jury with CALCRIM No. 358
(“Evidence of Defendant’s Statements”) as follows:
“You have heard evidence that the defendant made a[n]
oral or written statement before the trial. You must decide
whether the defendant made any such statement, in whole or in
part. [¶] If you decide that the defendant made such a
statement, consider the statement along with all the other
evidence in reaching your verdict. It is up to you to decide how
much importance to give to the statement.”

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When the trial court discussed jury instructions with the
parties it said, “As to 358, the court has agreed to give that
instruction on the defense request. There was a statement made
by the defendant; not to the police, but to the victim, which he
indicated he wanted to kill her.” The trial court then confirmed
that defendant also was requesting that it add to CALCRIM
No. 358 the additional advisement that the jury was to
“[c]onsider with caution any statement made by defendant
tending to show his guilt unless the statement was written or
otherwise recorded.”
Defense counsel responded that he was requesting the
additional advisement. The trial court denied defense counsel’s
request because it believed the advisement “is intended in
situations where it’s, for example, a statement to the police, and
the police are testifying to a statement of the defendant; however,
that statement was not recorded or written down, and it’s just the
oral statement that’s being introduced.”
The cautionary instruction defendant requested “applies to
any extrajudicial oral statement by the defendant that is used by
the prosecution to prove the defendant’s guilt,” including a
statement “admitted to show the defendant’s state of mind.”
(People v. Diaz (2015) 60 Cal.4th 1176, 1187.) A trial court’s
refusal to give such a cautionary instruction is reviewed for
prejudice under Watson, supra, 46 Cal.2d at pages 835-836, that
is, whether it is reasonably probable the jury would have reached
a result more favorable to the defendant if the trial court had
given the instruction. (People v. Diaz, supra, 60 Cal.4th at
p. 1195.) “‘Since the cautionary instruction is intended to help
the jury to determine whether the statement attributed to the
defendant was in fact made, courts examining the prejudice in

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failing to give the instruction examine the record to see if there
was any conflict in the evidence about the exact words used, their
meaning, or whether the [statements] were repeated accurately.’
[Citation.]” (Ibid.)
Here, the prosecution used defendant’s extrajudicial oral
statement to show his state of mind and thus prove his guilt of
attempted murder. With respect to the specific intent to kill
necessary for attempted murder, the prosecutor told the jury, “So
you do not need someone to be saying, ‘I intend to kill you’
although we have that in this case.” We infer the prosecutor’s
statement to be a reference to Treopia’s testimony that defendant
said to her, “Bitch, shut up. I’m going to kill you,” and Deputy
Jackson’s testimony that Dale reported defendant’s statement to
Treopia as “Shut up, bitch; I’ll kill you.” Because the prosecution
used defendant’s extrajudicial oral statement to prove his guilt,
the trial court erred in denying defendant’s requested cautionary
instruction. (People v. Diaz, supra, 60 Cal.4th at p. 1187.)
The trial court’s error in denying the requested instruction,
however, was harmless. Treopia’s trial testimony that defendant
said, “Bitch, shut up. I’m going to kill you,” was corroborated by
Dale’s near identical statement to Deputy Jackson that defendant
said, “Shut up, bitch; I’ll kill you.” (People v. Diaz, supra, 60
Cal.4th at p. 1195 [“minor variations in the exact wordings of . . .
statements are not the sort of inconsistencies that would cause a
jury to question whether the statements were actually made,
even when the testimony is viewed with caution”].) Also, there
was no evidence contradicting Treopia’s and Dale’s testimony
that the statement was made. (Ibid. citing People v. Dickey
(2005) 35 Cal.4th 884, 906 for the proposition that “‘[w]here there
was no such conflict in the evidence, but simply a denial by the

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defendant that he made the statements attributed to him, we
have found failure to give the cautionary instruction harmless.’”)
E. Assault With a Deadly Weapon Instruction
Defendant contends his conviction for assault with a deadly
weapon must be reversed because the trial court’s instruction
defining “deadly weapon” erroneously allowed the jury to find a
box cutter to be an inherently deadly weapon. We agree that the
trial court erroneously instructed the jury, but hold the error was
harmless.
The trial court instructed the jury with CALCRIM No. 875
(“Assault With a Deadly Weapon”) that “[a] deadly weapon other
than a firearm is any object, instrument, or weapon that is
inherently deadly or one that is used in such a way that it is
capable of causing and likely to cause death or great bodily
injury.” That is, the jury could have found defendant guilty of
assault with a deadly weapon either because it found the box
cutter to be “inherently deadly” or because it found that he used
the box cutter “in such a way that it [was] capable of causing and
likely to cause death or great bodily injury.”
As the Attorney General concedes, a box cutter in not an
“inherently deadly weapon.” (See People v. McCoy (1944) 25
Cal.2d 177, 188 (McCoy) [“While a knife is not an inherently
dangerous or deadly instrument as a matter of law, it may
assume such characteristics, depending upon the manner in
which it was used, and there arises a mixed question of law and
fact which the jury must determine under proper instructions
from the trial court. [Citations.] Pertinent in this connection is
the case of People v. Raleigh [(1932)] 128 Cal.App. 105, 108-110

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. . . , where the court pointed out the distinction between
instrumentalities which are ‘weapons’ in the strict sense of the
word, such as guns, dirks, etc., and those instrumentalities which
are not weapons in that sense, such as ordinary razors, pocket-
knives or other sharp objects”]; People v. Aledamat (2018)
20 Cal.App.5th 1149, 1153 (review granted in S248105
(July 5, 2018))7 [“A box cutter is a type of knife, and ‘a knife’—
because it is designed to cut things and not people—‘is not an
inherently dangerous or deadly instrument as a matter of law’”.])
Thus, it was error to instruct the jury that it could find defendant
guilty of assault with a deadly weapon if it found the box cutter
to be an inherently deadly object, instrument, or weapon.
Having held that the trial court erroneously instructed the
jury, we must determine whether the error was prejudicial.
Courts of appeal differ on the correct standard for evaluating
prejudice. (Compare People v. Stutelberg (2018) 29 Cal.App.5th
314, 319-321 [applying the beyond a reasonable doubt standard]
with People v. Aledamat, supra, 20 Cal.App.5th at pp. 1153-1154
[requiring a showing that the jury actually relied on the valid
definition of “deadly weapon”].) We hold the error was harmless
under either standard.
Although the jury was instructed on both a correct and an
incorrect legal theory, there is no doubt that it actually relied on
the valid theory that defendant used the box cutter in such a way
that it was capable of causing and likely to cause death or great
7 See Cal. Rules of Court, rule 8.1115(e)(1) [“Pending review
and filing of the Supreme Court’s opinion, unless otherwise
ordered by the Supreme Court . . . , a published opinion of a
Court of Appeal in the matter has no binding or precedential
effect, and may be cited for potentially persuasive value only”].)

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bodily injury. In his closing and rebuttal arguments, the
prosecutor never mentioned the incorrect legal theory—that the
jury could find a box cutter to be inherently deadly. Instead, he
focused on the manner in which defendant used the box cutter,
the correct legal theory. Likewise, defense counsel’s closing
argument did not address the incorrect legal theory.
There was no evidence that defendant used anything other
than the box cutter to inflict Treopia’s injuries. Thus, by its
sentencing finding that defendant inflicted great bodily injury,
the jury necessarily found, beyond a reasonable doubt, that
defendant used the box cutter in such a way that it was capable
of causing and likely to cause death or great bodily injury.
Similarly, because there was no argument or evidence that
a box cutter is inherently deadly and the jury found that
defendant actually caused great bodily injury, it is inconceivable
that the jury did not rely on the valid legal theory.
F. Defendant’s Mistrial Motion
Defendant contends the trial court erred in denying his
mistrial motion. We disagree.
1. Background
During his cross-examination of Treopia, defense counsel
asked about her relationship with defendant. Treopia testified
she had previously seen defendant and knew him well enough to
greet him. Defense counsel asked if she knew defendant’s name.
Treopia responded, “Because of other people saying that’s Took.

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Or that’s Donald Booker. Took is his gang-banging name or
whatever, and Donald Booker is his government name.”
Defense counsel asked, “Now, you just said, ‘gang-banging
name.’ You don’t know if he’s a gang-banger, do you?” Treopia
responded, “Affiliated, I guess.” Defense counsel asked, “You
don’t know that, do you?” Treopia responded, “I don’t know
personally, no. I’m just saying that’s the name.” Defense counsel
asked, “Are you just saying that to make him sound bad?” She
responded, “That’s just his name, baby. I mean, I’m sorry. That’s
just his name. Someone told me.”
The trial court then advised the jury that the trial would
recess for the evening and instructed them, “As to the testimony
regarding gang-banging, I ask you to please disregard that
answer completely. Do not let that information enter into your
deliberations in any way in this case.”
The following morning, defense counsel raised Treopia’s
gang testimony, stating he was in a difficult position. He
acknowledged that the trial court immediately admonished the
jury to disregard the testimony and stated that he did not “know
what more to do.” He noted that he could request another
admonition from the trial court and suggested the prosecutor
might stipulate that there was no evidence that defendant was
an active gang member.
The trial court described Treopia’s gang testimony as “kind
of like an off-the-cuff remark” that it believed did not have “that
great of an impact.” It noted that it had instructed the jury to
disregard Treopia’s gang testimony and not to let the testimony
enter into its evaluation of the evidence or deliberations. The
trial court believed the jury, with proper instructions, would
disregard the gang testimony and follow the evidence. The

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prosecutor stated he did not intend to ask Treopia about
defendant’s gang status or mention it at all. Defendant moved
for a mistrial. The trial court denied the motion.
2. Analysis
“A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.]” (People v. Haskett (1982) 30 Cal.3d 841, 854; People
v. Bolden (2002) 29 Cal.4th 515, 555 [“A trial court should grant a
mistrial only when a party’s chances of receiving a fair trial have
been irreparably damaged, and we use the deferential abuse of
discretion standard to review a trial court ruling denying a
mistrial”].) “Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial
motions.” (People v. Haskett, supra, 30 Cal.3d at p. 854.)
“‘Juries often hear unsolicited and inadmissible comments
and in order for trials to proceed without constant mistrial, it is
axiomatic the prejudicial effect of these comments may be
corrected by judicial admonishment; absent evidence to the
contrary the error is deemed cured. [Citations.]’ [Citation.]”
(People v. McNally (2015) 236 Cal.App.4th 1419, 1428-1429.) “‘It
is only in the exceptional case that “the improper subject matter
is of such a character that its effect . . . cannot be removed by the
court’s admonitions.” [Citation.]’ [Citation.]” (Id. at p. 1429.)
The trial court did not abuse its discretion in denying
defendant’s mistrial motion. Treopia’s reference to defendant’s
purported gang affiliation status was brief, defense counsel
elicited Treopia’s testimony that she had no personal knowledge

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of defendant’s gang status, no other witness referred to
defendant’s gang status, the trial court admonished the jury to
disregard and not consider the testimony in its deliberations, and
there is no evidence that the trial court’s admonition did not cure
the error.
G. Defendant’s Request for a Competency Hearing
After the jury found defendant guilty of the three charged
offenses and the trial court found true the prior conviction
allegations, defense counsel declared a doubt about defendant’s
competence. Defendant contends there was substantial evidence
of his incompetence before the trial court and thus the trial court
erred in failing to hold a competency hearing.
“Trial of an incompetent defendant violates the due process
clause of the Fourteenth Amendment to the United States
Constitution [citation] and article I, section 15 of the California
Constitution. Those protections are implemented by statute in
California. A criminal defendant is incompetent and may not be
‘tried or adjudged to punishment’ if ‘as a result of mental disorder
or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.’
(§ 1367, subd. (a).) Section 1368 mandates a competency hearing
if a doubt as to a criminal defendant’s competence arises during
trial. That may occur if counsel informs the court that he or she
believes the defendant is incompetent (§ 1368, subd. (b)), or ‘[i]f
during the pendency of an action and prior to judgment, a doubt
arises in the mind of the judge as to the mental competence of the

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defendant.’ (§ 1368, subd. (a).)” (People v. Hayes (1999) 21
Cal.4th 1211, 1281.)
“[A] trial court is not required to order a competence
hearing based merely upon counsel’s perception that his or her
client may be incompetent. [Citation.]” (People v. Welch (1999)
20 Cal.4th 701, 738, fn. 7.) “Counsel’s assertion of a belief in a
client’s incompetence is entitled to some weight. But unless the
court itself has declared a doubt as to the defendant’s
competence, and has asked for counsel’s opinion on the subject,
counsel’s assertion that his or her client is or may be incompetent
does not, in the absence of substantial evidence to that effect,
require the court to hold a competency hearing. [Citations.]”
(People v. Mai (2013) 57 Cal.4th 986, 1033.)
“Substantial evidence is evidence that raises a reasonable
doubt about the defendant’s competence to stand trial.’” (People
v. Hayes, supra, 21 Cal.4th at p. 1281.) “To raise a doubt under
the substantial evidence test, we require more than ‘mere bizarre
actions’ or statements, or even expert testimony that a defendant
is psychopathic, homicidal, or a danger to him- or herself and
others. [Citations.] Rather, the focus of the competence inquiry
is on a defendant’s understanding of the criminal proceedings
against him or her and the ability to consult with counsel or
otherwise assist in his or her defense. [Citation.] Defendant’s
trial demeanor is relevant to, but not dispositive of, the question
whether the trial court should have suspended proceedings under
section 1368.” (People v. Mickel (2016) 2 Cal.5th 181, 202.)
After the jury returned the guilty verdicts, the trial court
inquired whether defendant was going to waive a jury trial on the
prior conviction allegations. It first asked defendant if he
understood his right to a jury trial. Defendant responded, “Why

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27
should I choose jury trial when the jury been tampered with?”
The trial court asked again if defendant understood his right to a
jury trial. Defendant responded, “Yeah, I understand. Jury
tainted.”
The trial court then explained to defendant that the prior
conviction allegations could result in a minimum term of 35 years
to life. Claiming the jury had been tampered with, defendant
stated that he did not want to remain in the courtroom and left,
accompanied by deputy sheriffs.
When defendant returned to the courtroom, he asked to
address the trial court. The trial court advised defendant to
confer with defense counsel first. Defendant responded,
“Counsel? I’m through with all of this because it’s over with. I
can represent myself. I just want to speak to you because I came
in front of you once before, and you remember they were trying to
do the same thing to me. You sent me to Patton State Hospital,
and they dismissed the case. [¶] It’s like, he don’t have no
evidence. He took the videotape from surveillance camera. He
been doing all the blood, all the pictures and everything. He took
all of that out, and then he going to sit up here again, go tamper
with the jury. [¶] All of this has been preplanned, premeditated.
This is a conspiracy.”
The trial court stated that all it wanted to know was
whether defendant was waiving his right to a jury trial on the
prior conviction allegations. Defendant responded, “Yeah, go
ahead.” Defense counsel joined.
The trial court ordered defendant to appear the next day so
it could excuse the jury. Defendant stated that he would not be
returning. The trial court asked defendant if he could excuse the
jury in his absence. Defendant responded, “Yeah, it’s okay.”

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The trial court then tried to schedule the trial on the prior
conviction allegations and sentencing. It asked defendant if he
agreed to a continuance to a particular date. Defendant
responded, “I’m damned if I don’t, damned if I do. What
difference is it?” The trial court asked if defendant agreed to the
continued date. Defendant responded, “Yeah.”
On the date set for the court trial on the prior conviction
allegations, defendant informed the trial court that, “[Defense
counsel] is not my attorney. He’s fired. I’d like to get that
perfectly understood; that is not my attorney.” The trial court
treated defendant’s statements as a Marsden8 motion for
appointment of new counsel. The trial court denied the motion.
When the proceedings resumed, defendant again said that
defense counsel was not his attorney. Apparently referring to a
prosecutor (prosecutor no. 2), defendant said, “He’s not supposed
to be in this courtroom. [Prosecutor no. 1], the one with the gray
hair, that’s the one that was assigned to this case. He’s over here
illegally.” Defendant continued, “He’s not supposed to be here,
that’s why he got that smirk on his face. I bet you get away with
it.”
The trial court told defendant that he needed to calm down.
Defendant responded, “Calm down, you sit here and this mother-
fucker here falsely accused me. He had me set up. He followed
me for four years and had that broad allowing me. Then he took
the video out the store with the surveillance camera where she
was inflicting wounds. And then you all hid that shit and covered
it up. And I’m supposed to be happy about it[?] You talking
about 36 years to life.”
8 People v. Marsden (1970) 2 Cal.3d 118.

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The trial court informed defendant that if he could not be
quiet, he would be removed from the courtroom. Defendant said
the trial court wanted him present the day before. The trial court
said defendant needed to be quiet. Defendant responded, “But
you don’t like it, do you?” The trial court told defendant that if he
could not be quiet, he would be removed and sentencing would
take place without him.
Just after the trial on the prior conviction allegations
began, the bailiff informed the trial court that defendant wanted
to leave. The trial court asked defendant if he wanted to leave.
Defendant said that he did. The trial court asked defendant
whether he wanted to be present for sentencing and if he
understood that if he left, it would proceed with sentencing.
Defendant did not respond and was escorted from the courtroom.
As he was leaving, defendant said, “—sit through this shit. I
ain’t even supposed to be in this courtroom.”
After a recess during the trial on the prior conviction
allegations, the trial court and defendant had the following
discussion:
“The Court: Mr. Booker, I brought you back out because we
are still in the middle of the court trial on the priors, and then we
still have sentencing to do.
“The Defendant: That dude right there, [prosecutor no. 2],
he’s not the district attorney that was assigned to this case.
“The Court: Okay.
“The Defendant: It was [prosecutor no. 1.9] He’s not
supposed to be in this courtroom.
“The Court: Let me ask you one question.
9 Prosecutor no. 2 later explained that he had taken over
prosecutor no. 1’s cases.

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“The Defendant: No, I told you earlier, no. What part of
that you don’t understand, no.
“The Court: Do you want to be here?
“The Defendant: I told you earlier when I walked out, I
don’t want to have nothing. [Defense counsel] is not my attorney.
I already been told what to do.
“The Court: All right. So did you want to not be here for
the rest of the court trial and sentence?
“The Defendant: All this is a lie. You taking me to trial in
municipal court. This is misdemeanor court. You bond me over
to the superior court, which is Pasadena.
“The Court: All right.
“The Defendant: You all trying to cover up and hide the
truth. He’s not supposed to be here.
“The Court: I will take that as a no, you do not want to be
here.
“The Defendant: I don’t. I told you.
“The Court: [Defense counsel], do you wish to offer
anything?
“[Defense counsel]: No, your Honor.
“The Court: All right. All right. Do you want to go on the
bus? Do you want to just completely absent yourself from these
proceedings?
“The Defendant: Man, what did I tell you. Either you don’t
hear good or listen good.
“The Court: Is that yes?
“The Defendant: You threatened me yesterday if I don’t
come to court you’re going to extract me. You have that sorry
piece of shit, [defense counsel] over there.

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“The Court: The deputies want to know if you want to go
on the bus.
“The Defendant: I told you earlier.
“The Court: Do you want to [get] on the bus.
“The Defendant: You all can spare me this dramatic
bullshit.
“The Court: Okay.
“The Defendant: You will hear it again. So don’t try to get
cute with me. Take me to trial in municipal court.
“The Court: Once again, Mr. Booker has been escorted out
of the courtroom. He does not . . . want to participate in these
proceedings. So we will proceed . . . .”
At the conclusion of the trial, the trial court found true the
prior conviction allegations. Defense counsel then made a new
trial motion. The trial court denied the motion. Defense counsel
then said, “[I]n light of Mr. Booker’s behavior today, his
comments at the hearing, I’m wondering if he is now competent,
even though he might have been competent at an earlier time
during the proceedings, his behavior would seem to suggest that
he is not currently competent.”
The trial court denied the motion, explaining, “Well, if
you’re raising a doubt as to his competency based on simply his
actions here in court today, I think I would deny that. It didn’t
seem to me—while I agree that he has mental health issues, it
didn’t seem to me that he wasn’t fully aware as to what was
occurring. He knew that you’re his lawyer. He knew I was the
judge. He knew who the district attorney was. Although, he
believes [prosecutor no. 2] is the wrong guy who’s supposed to be
here today, but other than that, I think obviously he knew that
he was here for sentencing.

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“He knew that we were—he was going to be sentenced on
this case. And so I think it’s just a matter that he is upset. And,
you know, obviously displayed words that indicated that he
harbors, you know, certain beliefs about the system or us and so
forth. And he was very upset, but I do not believe at this point it
is an indication that he is not competent to proceed to sentencing.
“And besides, he also absented himself willfully. And I
think that does not necessarily mean that he was incompetent. It
just means that he was upset and angry at me or the court and so
forth and does not necessarily mean that he was incompetent.”
Defendant’s statements before and during the trial on the
prior conviction allegations were not evidence that raised a
reasonable doubt about his competence to stand trial on those
allegations. (People v. Hayes, supra, 21 Cal.4th at p. 1281.) His
statements may have demonstrated frustration with his
convictions on the substantive offenses and dissatisfaction with
defense counsel’s performance, but they did not demonstrate that
he did not understand the criminal proceedings against him or
that he was unable to consult with defense counsel or assist in
his defense on the prior conviction allegations. (People v. Mickel,
supra, 2 Cal.5th at p. 202.)
Although defendant may have made some “bizarre”
statements, he also expressly told the trial court that he
understood he had a right to a jury trial on the prior conviction
allegations, he was waiving his right to a jury trial, and he knew
he was facing “36 [sic] years to life” as a consequence of the trial
on the prior conviction allegations. These statements
demonstrated he understood the nature of the proceedings
against him. Also, although defendant may have objected to
defense counsel’s performance and continuing representation,

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nothing in defendant’s statements demonstrated that he was
unable to consult with defense counsel or assist in his defense.
Accordingly, the trial court did not err in denying defendant a
competency hearing.
H. Pretrial Diversion Hearing
Defendant contends that he is entitled to a pretrial hearing
on diversion under recently enacted section 1001.36 because the
Legislature intended the statute to apply retroactively. The
Attorney General counters that the language of subdivision (c) of
section 1001.36 demonstrates that the Legislature intended the
enactment to operate prospectively, i.e., the enactment would not
apply to cases such as this one in which there has already been
an adjudication.
Our Supreme Court has granted review to decide whether
section 1001.36 applies retroactively. (People v. Frahs (2018)
27 Cal.App.5th 784, review granted in S252220 (Dec. 27, 2018)
(Frahs).10) Because our Supreme Court will soon have the final
word, we will keep our discussion brief. We agree with the
outcome in Frahs, and as in Frahs, defendant’s case is not yet
final on appeal and the record affirmatively discloses that he
appears to meet at least one of section 1001.36’s threshold
eligibility requirements. We will therefore remand to allow the
trial court to determine whether defendant should benefit from
diversion under section 1001.36. (Frahs, supra, 27 Cal.App.5th
at p. 791.)
10 See footnote 7 above.

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I. Senate Bill No. 1393
Senate Bill No. 1393, which became effective on
January 1, 2019, amended sections 667 and 1385 to give the trial
court discretion to strike five-year sentence enhancements under
section 667, subdivision (a) in furtherance of justice.11 Defendant
contends that in light of Senate Bill No. 1393 we should remand
this matter to the trial court to allow it to decide whether to
strike one or both of his section 667, subdivision (a)
enhancements.
The Attorney General argues we should not remand
because the trial court “clearly indicate[d]” that it would not have
dismissed the enhancements even if it had the discretion when it
sentenced defendant. This argument is based on the trial court’s
denial of defendant’s Romero12 motion, which was based on the
nature of defendant’s offenses and criminal history and its
finding that “the facts of this case are very aggravated.”
“‘[W]hen the record shows that the trial court proceeded
with sentencing on the . . . assumption it lacked discretion,
remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new
sentencing hearing. [Citations.] Defendants are entitled to
“sentencing decisions made in the exercise of the ‘informed
discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed
discretion.’ [Citation.]” (People v. McDaniels (2018) 22
11 The Attorney General concedes its retroactive application
in this case.
12 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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35
Cal.App.5th 420, 425 [remand in light of Senate Bill No. 620
which gave courts the discretion to dismiss or strike firearm
enhancements].) A remand is not required, however, when “the
record shows that the trial court clearly indicated when it
originally sentenced the defendant that it would not in any event
have stricken [the previously mandatory] enhancement.” (Ibid.)
We disagree with the Attorney General that the trial
court’s remark’s when denying defendant’s Romero motion
“clearly indicate[d]” that it would not have stricken one or both of
defendant’s section 667, subdivision (a) enhancements. The
impact of those sentencing options is different. Striking a prior
“strike” under the Three Strikes law would have removed the
indeterminate part of defendant’s sentence while striking one or
more of the section 667, subdivision (a) enhancements would only
have reduced the determinate part of his sentence by five or 10
years. Because we are unable to determine from the record
whether the trial court would have exercised its discretion to
strike one or both of defendant’s section 667, subdivision (a)
enhancements, we remand to allow the trial court to exercise its
discretion.

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J. Cumulative Error
Defendant contends that the cumulative prejudicial effect
of the claimed errors requires reversal. There is no cumulative
prejudicial effect that requires reversal.
IV. DISPOSITION
The judgment is conditionally reversed and the matter is
remanded to the trial court with directions to, within 90 days
from the remittitur: (1) consider whether to exercise its discretion
to strike the section 667, subdivision (a) enhancements (in the
event the conviction is reinstated); and (2) conduct a diversion
eligibility hearing under section 1001.36. If the trial court
determines that defendant is not eligible for diversion, then the
court shall reinstate the judgment.
If the trial court determines that defendant is eligible for
diversion but, in exercising its discretion, the court further
determines diversion is not appropriate under the circumstances,
then the court shall reinstate the judgment.

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If the trial court determines that defendant is eligible for
diversion and, in exercising its discretion, the court further
determines diversion is appropriate under the circumstances,
then the court may grant diversion. If defendant successfully
completes diversion, the court shall dismiss the charges in
accordance with section 1001.36, subdivision (e). If, however,
defendant does not successfully complete diversion, the trial court
shall reinstate the judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.

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