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People v. Weaver

California Court of Appeals, Sixth District

July 1, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
CHRISTOPHER WEAVER, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          Santa Cruz County Superior Court Superior Court No. 16CR04023 Hon. Stephen.S. Siegel, John Salazar Judge

          Counsel for Plaintiff/Respondent: The People, Xavier Becerra Attorney General, Gerald A. Engler Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano Supervising Deputy Attorney General, Amit Kurlekar Deputy Attorney General

          Counsel for Defendant/Appellant: Christopher Weaver Under appointment by the Court of Appeal, Rudolph J. Alejo

          DANNER, J.

         A jury convicted appellant Christopher Weaver of making criminal threats and exhibiting a deadly weapon. The trial court sentenced Weaver to four years in prison. On appeal, Weaver claims that the trial court erred by failing to hold a hearing on a Marsden[1] motion and by admitting evidence of a prior uncharged battery under Evidence Code section 1101, subdivision (b). In supplemental briefing, Weaver contends that recently enacted Penal Code section 1001.36, allowing for pretrial mental health diversion, retroactively applies to him, and that his case should be remanded to the trial court for a hearing on his diversion eligibility.

         For the reasons explained below, we conditionally reverse the judgment and remand the matter to the trial court for a hearing under Penal Code section 1001.36 to determine whether to grant Weaver mental health diversion. We reject Weaver's remaining claims.

         I. Facts and procedural background

         A. Procedural Background

         In April 2017, the Santa Cruz County District Attorney filed an information charging Weaver with two counts of making criminal threats (Pen. Code, § 422; counts 1 & 2), [2] and misdemeanor exhibition of a deadly weapon (§ 417, subd. (a)(1); count 3). The information further alleged as to count 2 that Weaver personally used a deadly or dangerous weapon while committing the charged offense (§ 12022, subd. (b)(1)), and as to counts 1 and 2 that Weaver had suffered one prior serious felony conviction for violating section 459 (§ 667, subd. (a)(1)), one prior strike conviction (§ 667, subds. (b) (i)), and six prior convictions resulting in prison terms (§ 667.5, subd. (b)).

         Weaver's prosecution began with the filing of a felony complaint in June 2016. An attorney from the public defender's office, Jon Minsloff, represented Weaver at his arraignment on the complaint. At the next court appearance on July 15, 2016, Nicola Whitehead, an attorney from a law firm that had been representing Weaver on other pending cases, appeared and requested that her firm also be appointed on this case. The trial court granted the request, relieved the public defender, and appointed the “Page firm” to represent Weaver. At the July 15 court appearance, Whitehead declared a doubt about Weaver's mental competence. The trial court suspended the proceedings pursuant to section 1368 and ordered an evaluation of Weaver by Dr. Thomas Reidy. Dr. Reidy evaluated Weaver, diagnosed him as suffering from schizophrenia, and concluded that he was not competent to stand trial. Dr. Reidy explained that Weaver “demonstrates impairment to such a degree that he cannot rationally participate in the court proceedings, and in particular, cannot rationally and consistently communicate with his attorney due to prominent and acute mental health symptoms.”

         At the next court appearance on August 2, 2016, the trial court found Weaver incompetent to stand trial based on Dr. Reidy's evaluation and ordered that the proceedings remain suspended. On August 16, 2016, the trial court ordered Weaver transferred to Atascadero State Hospital (Atascadero) until his restoration to competency.

         At a later court appearance, the trial court appointed a second expert, Dr. Gregory Katz, to evaluate Weaver's competence. The trial court subsequently considered Dr. Katz's report-which concurred with Dr. Reidy's opinion concerning Weaver's incompetence-and continued to hold the proceedings suspended, pending Weaver's transportation to Atascadero for restoration of competency. Weaver was transported to Atascadero. While Weaver was at Atascadero, doctors there diagnosed him with schizoaffective disorder in partial remission.

         Approximately two and a half months later, Weaver was transported back from Atascadero to Santa Cruz County. On January 19, 2017, Weaver appeared in court with new defense counsel from the Page law firm, Mitchell Page.[3] Based on a certification of mental competency and a doctor's report from Atascadero, the trial court found Weaver competent and resumed the proceedings. At defense counsel's request, the court directed the county's mental health department to explore possible programs to which Weaver could be released pending trial.

         On January 24, 2017, the trial court ordered that Weaver be released to a residential mental health treatment facility pending trial. As a condition of his release, Weaver agreed to such placement and to continue taking medications as prescribed.

         On March 10, 2017, the trial court revoked Weaver's release after Weaver was discharged from a mental health program because he failed to follow the directions of the program's staff. Nevertheless, the trial court ordered the county's mental health department to find a new placement for Weaver. Thereafter, Weaver was released to another mental health program. On April 10, 2017, the trial court conducted a preliminary hearing, held Weaver to answer, revoked Weaver's release to the mental health program, and remanded Weaver into custody. The trial court noted that Weaver had been “released at least twice to programs and they're not working.”

         On June 6, 2017, the trial court granted the district attorney's motion to dismiss the prior strike and prior serious felony conviction allegations. The parties subsequently explained that the information charged only three prior prison terms.

         In October 2017, a jury heard evidence and found Weaver guilty of counts 1, 2, and 3. The jury further found true the deadly weapon allegation in count 2. Weaver subsequently waived his right to trial on the remaining allegations and admitted the three prison prior allegations.

         On November 28, 2017, the trial court sentenced Weaver to a total term of four years and eight months in prison and imposed various fines and fees. The trial court later corrected a sentencing error and reduced the total prison term to four years.

         B. The Evidence Presented at Trial

         1. The Prosecution Evidence

         In June 2016, Weaver was homeless. Paige C.[4] volunteered at a soup kitchen for the homeless in Santa Cruz. On June 6, Weaver visited the soup kitchen and “started yelling and screaming” in the soup kitchen's courtyard. Paige approached Weaver and asked him what was wrong. Weaver demanded to use the soup kitchen's shower. Paige explained to Weaver the scheduling rules for the shower. Weaver got within inches of Paige's face, called her a racist bitch, and spat in her face. Weaver left the soup kitchen after Paige threatened to call the police. The encounter lasted “about five or six minutes.”

         On June 13, 2016, Weaver returned to the soup kitchen around 12:55 p.m., “again yelling, screaming, carrying on, and telling everybody he's going to take a shower no matter what [any staff member] said.” Paige explained to Weaver that he was too late to sign up for and use the shower. Weaver got within inches of Paige's face and spat on her, insisting that “he was going to take a shower.” When Paige reiterated that Weaver could not use the shower, he “raised his fists at [her] and said, ‘When I see you again, I'm going to kill you.' ” Weaver specifically threatened to “slice [her] up” and “slice [her] open.” He also called Paige “a racist bitch.” He said, “ ‘You're a cunt,' and ‘You're just a racist white woman, and you're just out for a black man....' ” Other homeless persons told Weaver to leave, which he did about 15 minutes after he had arrived. Paige took Weaver's threats to kill her “literally” and “seriously, ” and she was “[t]errified.” The June 13 incident with Paige formed the basis of the criminal threats charge in count 1.

         On the evening of June 16, 2016, Paige and her husband, Damon B., went out for ice cream in downtown Santa Cruz. While eating outside the ice cream shop, they heard a person yelling, cussing, and “creating a scene” in the distance. Paige recognized the voice as Weaver's and told Damon that the yelling man was the one who had threatened to kill her. Weaver then walked by Paige and Damon; he appeared “angry, mad at the world.” Weaver looked at Paige, continued walking for a short distance, then “thr[ew] his stuff down, turn[ed] around and c[ame] after” her and Damon. Damon got in between Paige and Weaver. As Weaver approached, he “start[ed] screaming about [them] being racist, and he said that he was going to slice [Damon] and he would do the same to [Paige].” Weaver said, “ ‘I'll slice you, and I'll slice your white woman.' ” About two or three minutes into the confrontation, Weaver pulled out a folded pocketknife, held it next to Damon's cheek, and said he would cut Damon like he would cut Paige. Weaver's threats caused Damon to fear for his and Paige's safety. The June 16 incident with Damon formed the basis of the criminal threats charge in count 2.

         Paige called 911 during the confrontation on June 16. Santa Cruz Police Officer Caitlin McBride responded to the call with a fellow officer. The police found a folding knife with a three-inch blade in Weaver's pocket. Weaver was “yelling and cussing” during the interaction with police. Officer McBride believed that Weaver was likely under the influence of a stimulant.

         Richard S. testified about an uncharged encounter he had with Weaver at a 7 Eleven store in Santa Cruz on March 28, 2016.[5] As Richard was getting into his car outside the store, he heard a loud commotion inside. When Richard looked into the store, he saw a person at the counter (later identified as Weaver) yelling at the store clerk. Richard walked back into the store and heard the man yelling at the clerk, “You're a racist.” Richard noticed that the man had a long hunting knife “in a sheath on his side.” Richard yelled out that the man had a knife and warned him not to “pull that knife.” The man asked Richard what he was going to do about it. The man moved toward Richard in a “challenging manner, ” and Richard tried to get him out of the store. Richard told the clerk to call the police and put up his hands to prevent the man from moving toward the clerk. The man then struck Richard twice in the head. Richard asked the man, “Do you realize what you've done?” The man got in Richard's face, yelled, and spat on him.

         2. The Defense Evidence

         Weaver was the sole defense witness, and the defense did not offer any evidence other than his testimony. Weaver testified that he had difficulty speaking clearly because he had been struck by an automobile in 2004 and suffered extensive injuries to his face. He also testified about the circumstances of his homelessness.

         Weaver had many times visited the soup kitchen for showers and meals. He had seen Paige there before the incidents in June 2016, but he had not interacted with her previously. Weaver admitted that he unsuccessfully tried to get a shower on June 6 and June 13. On June 13, Weaver put his name on the shower list but left the shower line to console a distraught friend. When Weaver returned to the shower line, a volunteer told him he had been gone for half an hour and could not shower that day. Weaver insisted that he was not absent for that long and was going to take a shower. The volunteer then told Paige that Weaver was not following directions and could not use the shower. After Paige supported the volunteer's decision, Weaver “called her a bitch and told her she was wrong for not letting [him] take a shower.” Weaver “[did] not recall” whether he said the things that Paige testified to; Weaver “was upset at the time” of the incident.

         Weaver testified further that when he walked by Paige and Damon on June 16, he heard Paige say, “ ‘There goes that nigger that threatened me at work the other day.' ” Weaver “turned around and... looked” at the couple, who then “started, ‘We're calling the cops.' ” Weaver testified that he did not “recall saying the things” that Damon reported. Weaver was still upset on June 16 that he had not gotten a shower on June 13.

         Weaver recalled the 7-Eleven incident. He testified that the store clerk working that day had refused to give him water for free, even though other clerks at that store had done so previously. Weaver denied that he had yelled at or threatened the clerk, but Weaver acknowledged that he was upset, complained about the charge for water, and felt he was treated unfairly. Weaver recalled that Richard had said, “ ‘He's got a knife. Call the police.' ” Weaver did not recall speaking to Richard in the manner to which he testified. Weaver said he “was upset, but [he] wasn't upset to call any racial names, or anything like that, you know.” Weaver “didn't mean for any of the things that [he] said to be taken seriously.” He was “just upset and... unmedicated, ” and when he is unmedicated, he has “a problem communicating[, ] a problem problem solving, and... a problem... being grounded.”

         On cross-examination, Weaver testified that he felt he had been targeted when he was not permitted to shower while others were. Weaver acknowledged that he had yelled at Paige on June 6 because he was upset about not getting a shower, but he denied spitting on her. Weaver also testified that he had lost his place in the shower line while consoling his friend on June 6, rather than on June 13. Weaver then said that he had only one interaction with Paige at the soup kitchen-not two-and he could not remember whether the interaction was on June 6 or June 13. During their interaction, Weaver had called Paige a “bitch, ” but he did not “recall calling her a racist” and he did not intentionally spit on her. Weaver admitted that he “may have... cursed [Paige] out [and] even called her a racist bitch, but [he] never recall [sic] saying, ‘I'm going to kill you. I'm going to pull out your guts and let people laugh.' ” Weaver also denied threatening Paige's life.

         Regarding the June 16 confrontation, Weaver added that he said, “ ‘Screw you' ” to Paige and said to her “verbatim, ” “ ‘Keep your “niggers” to yourself.' ” Weaver did not recall whether he called Paige a racist bitch during this incident. Weaver admitted that he had removed a knife from his pocket, but he denied placing the knife next to Damon's face or threatening to kill him.

         Weaver did not remember calling the clerk at the 7-Eleven a racist. Weaver testified that he had said, “Screw you, ” to Richard, who then grabbed Weaver. In turn, Weaver struck Richard. Weaver testified that, although he was upset at the time of this incident, he recalled having said to Richard, “You touch me again, I'm going to knock you out, ” and “Call [the police]. I don't care. You think every nigger is going to run every time you call the cops.”

         II. Discussion

         Weaver raises three claims on appeal. First, he contends that a letter he filed with the trial court requested replacement of his defense counsel under Marsden, and the trial court committed prejudicial error when it failed to hold a hearing on that request. Second, Weaver claims that the trial court erred when it admitted evidence under Evidence Code section 1101, subdivision (b), of the uncharged incident involving Richard S. Finally, Weaver contends that section 1001.36 applies to him retroactively, and we should remand his case to the trial court for a hearing to determine his eligibility for pretrial mental health diversion.

         A. Marsden Motion

         1. Additional Factual Background

         At his arraignment on June 20, 2016, Jon Minsloff from the public defender's office represented Weaver. At the next court appearance on July 15, 2016, upon request of Nicola Whitehead, the trial court appointed the “Page firm” to represent Weaver. That same day, Whitehead declared a doubt about Weaver's mental competence, and the trial court suspended the proceedings and ordered a mental evaluation by Dr. Reidy. On August 2, 2016, the trial court found Weaver incompetent based on Dr. Reidy's report. On August 16, 2016, the trial court ordered Weaver's transfer to Atascadero State Hospital for restoration of competency. At the beginning of the August 16 proceeding, Weaver asked to address the court, stating, “Your Honor, permission to speak freely?” The trial court asked Weaver to “[g]ive [the court] one second” to review a placement report, and subsequently allowed Weaver to speak, saying “Go ahead, Mr. Weaver. You had something to say. Thank you again for your patience.” Weaver proceeded to ask a question about the ...


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