Filed 9/23/20 P. v. Moore CA2/8

Opinion on remand from Supreme Court

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES RONNIE MOORE,

Defendant and Appellant.

 B286405

 (Los Angeles County 

 Super. Ct. No. GA095941)

APPEAL from the judgment of the Superior Court of Los 

Angeles County. Suzette Clover, Judge. Conditionally reversed 

and remanded with directions. 

Laurie Wilmore, 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, Zee Rodriguez and Paul S. Thies, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
2

Defendant and appellant James Ronnie Moore was

convicted by jury of making criminal threats and exhibition of a 

deadly weapon and sentenced to eight years in prison. Defendant 

raised numerous appellate challenges including that he should be 

considered for mental health diversion pursuant to Penal Code 

section 1001.36, a new statute enacted after his 2017 conviction.

In our original unpublished opinion filed October 7, 2019,

we affirmed defendant’s conviction, concluded Penal Code 

section 1001.36 did not apply retroactively and remanded for the 

limited purpose of allowing the trial court the opportunity to 

exercise its discretion to strike the five-year enhancement 

pursuant to section 667, subdivision (a)(1). 

Defendant filed a petition for review with the Supreme 

Court. The Supreme Court granted review and deferred further 

consideration of the matter pending its disposition in People v. 

Frahs (2020) 9 Cal.5th 618 (Frahs). After the issuance of its 

decision in Frahs, the Supreme Court, by order dated August 19, 

2020, transferred the matter to this court with directions to 

vacate our original decision and reconsider the cause in light of

Frahs. 

Having done so, we again reject defendant’s claims of trial 

error. However, in light of Frahs, we conclude a “conditional 

limited remand for the trial court to conduct a mental health 

diversion eligibility hearing” pursuant to Penal Code 

section 1001.36 is warranted. (Frahs, supra, 9 Cal.5th at p. 640.) 

FACTUAL AND PROCEDURAL BACKGROUND

Sometime around 9:00 p.m. on March 22, 2015, Michael 

Petroff went to a gas station on Colorado Boulevard in Pasadena 

to speak with Joseph Khouri, an employee at the station, about 

having a mechanic look at a car Mr. Petroff wanted to buy. 
3

Mr. Petroff and Mr. Khouri were talking inside the mechanic’s 

area of the station which is largely enclosed by glass windows 

and doors. The doors were locked as was usual at that time of 

night. 

As Mr. Petroff and Mr. Khouri were talking, defendant 

approached the glass windows several times. He came “up to the 

window, very close” and appeared to be angry. Mr. Khouri 

believed defendant was drunk. Mr. Khouri was familiar with 

defendant and told Mr. Petroff that defendant was homeless and 

regularly came to the gas station. For years, defendant had been 

sleeping outside the gas station and sometimes he was allowed to 

use the bathroom. Mr. Khouri believed defendant was an 

“excellent person” when he was sober, but he acted “crazy” and 

“out of control” when he drank alcohol. Defendant sometimes 

harassed customers at the station, and one time he had 

threatened a mechanic with a knife.

Mr. Petroff was very concerned and “shocked” by 

defendant’s behavior because he was waving, in a threatening 

way, a “large knife” that looked like a meat cleaver or butcher 

knife. Defendant, who appeared to be looking primarily at 

Mr. Petroff, said “I’m going to kill you” or “I could kill you with 

this” or something to that effect. Defendant threatened 

Mr. Petroff twice while waving the knife and using profanities, 

including calling him a “mother f----r.” 

Mr. Petroff who, according to Mr. Khouri, looked scared 

and nervous, did not feel it was safe to go outside the station. 

Mr. Khouri was not nervous because of his past experience with 

defendant and he thought it best to wait to see if defendant would 

just go away peacefully. However, Mr. Khouri had never seen 

defendant this angry. Therefore, both men decided to stay inside 
4

the station. Mr. Petroff believed defendant was probably not a 

physical threat to him so long as he stayed locked inside the 

station with Mr. Khouri. Yelling through the glass windows, 

Mr. Petroff gave defendant several warnings, telling him to go 

away or he would call the police. Defendant kept coming back to 

the window. After the third time, Mr. Petroff called 911 on his 

cell phone and waited inside until the police arrived. 

Within a few minutes, police officers from the Pasadena 

Police Department arrived at the gas station. Officer Ryan 

Castillo was one of the responding officers. The officers detained 

defendant who was sitting at the side of the gas station when 

they arrived. Defendant was drinking a beer, his eyes were 

bloodshot, and his breath smelled of alcohol. Defendant told 

Officer Castillo that he was only trying to get the key to the 

bathroom. 

Officer Castillo spoke with Mr. Petroff. He reported he had 

been scared by defendant’s behavior and called 911 because he 

did not believe he could safely go outside to his car and leave. 

Mr. Khouri was not interviewed because he told Officer Castillo 

he did not want to get involved. A knife, approximately 

seven inches long, was recovered in some bushes near the station 

and placed into evidence. 

Defendant was charged by information with making 

criminal threats (Pen. Code, § 422, subd. (a); count 1), and 

misdemeanor exhibition of a deadly weapon (§ 417, subd. (a)(1); 

count 3). (Count 2, assault with a deadly weapon, was dismissed 

by the court at the preliminary hearing.) As to count 1, it was 

alleged defendant personally used a deadly and dangerous 

weapon (a knife) in the commission of the offense (§ 12202, 

subd. (b)). It was further alleged that defendant had suffered a 
5

prior serious or violent felony within the meaning of section 667, 

subdivision (a)(1) and the “Three Strikes” law (§ 667, subds. (b)-

(j), § 1170.12). 

At a pretrial hearing in September 2015, defense counsel 

declared a doubt as to defendant’s competence. The trial court 

suspended the proceedings and appointed a doctor (Dr. Rothberg) 

to examine defendant, setting October 7, 2015 as the return date. 

We reserve a more detailed discussion of the facts related to the 

competency hearing to part 2 of the Discussion, post. 

When the criminal proceedings were resumed in October 

2015, the court entertained a Marsden (People v. Marsden (1970) 

2 Cal.3d 118) request from defendant at which defendant also 

made references to proceeding in propria persona. We reserve a 

more detailed discussion of the facts related to these requests to 

part 3 of the Discussion, post. 

 The case proceeded to a jury trial in January 2016. 

Mr. Petroff, Mr. Khouri and Officer Castillo testified to the above 

facts. Both Mr. Petroff and Mr. Khouri identified defendant in 

court as the person who had been brandishing the knife that 

evening. 

During Mr. Petroff’s testimony, a recording of the 911 call 

was played for the jury. The transcript of the call was consistent 

with Mr. Petroff’s and Mr. Khouri’s trial testimony, referencing a 

homeless African-American man brandishing a knife and acting 

in a threatening manner. 

Detective Timothy Bundy testified he was assigned the 

case as lead detective. Sometime after the incident, Detective 

Bundy spoke with Mr. Petroff to go over the statement he gave to 

Officer Castillo at the scene. The conversation was recorded and 

the recording was played for the jury. In the conversation, 
6

Mr. Petroff confirmed he had never seen defendant before that 

night, defendant was brandishing a knife and acting in “a very 

aggressive” and “threatening” manner, defendant was giving 

them “the finger” and cursing, and Mr. Petroff called the police 

because he believed if he tried to leave the station, defendant 

might have injured or killed him. Mr. Petroff said defendant did 

not specifically say he would use the knife if he came outside, but 

“the inference was unmistakable.” 

Detective Bundy also followed up with Mr. Khouri who said 

defendant had been waving a knife around and cursing through 

the window at Mr. Petroff. Detective Bundy spoke with the 

owner of the gas station and recovered the video footage from the 

security cameras. The video footage was played for the jury. It 

showed defendant approaching the glass windows at the station 

three times holding a knife. 

The jury found defendant guilty of criminal threats and 

misdemeanor exhibition of a deadly weapon and found true the 

personal use of a deadly weapon allegation. Defendant waived 

his right to a jury trial on the prior allegation. 

On February 8, 2016, the court suspended the criminal 

proceedings a second time, based on defense counsel declaring a 

doubt as to defendant’s competence to proceed to sentencing. 

Defendant was examined by three doctors. In March 2017, the 

court found defendant competent to proceed based on the doctors’ 

reports and resumed the criminal proceedings. The court held 

another Marsden hearing and denied defendant’s request for 

substitute counsel. 

At the conclusion of the Marsden hearing, defendant said 

that if he could not get a new lawyer appointed then “I want my 

Faretta.” (Faretta v. California (1975) 422 U.S. 806.) The court 
7

cautioned defendant that self-representation was not a good idea 

and not in his best interests, but if he wanted to pursue it, he 

would need to agree to be examined again for a determination if 

he was competent to do so and waive time with respect to his 

sentencing hearing. Defendant agreed. 

When the parties returned in July 2017, the court stated on 

the record that the doctor found defendant competent to 

represent himself. The court asked defendant if he still wished to 

proceed to sentencing as his own attorney and defendant said 

yes. The court again advised defendant that it was not in his 

best interest to proceed in propria persona because of the 

difficulties in doing so, but defendant insisted he wanted to 

represent himself. The court granted defendant’s Faretta request 

and relieved counsel. Defendant said he wanted copies of 

transcripts. He agreed to waive time and the court continued the 

sentencing hearing. 

At the continued hearing in November 2017, the court held 

the priors trial and found true the allegation that defendant 

suffered a prior conviction in 1994 for burglary for which he 

served time in prison. The court then heard and granted 

defendant’s motion to strike his prior conviction for purposes of 

the Three Strikes law. 

The court also heard argument on defendant’s motion for 

new trial. After allowing defendant wide latitude to argue his 

motion, the court denied the request for a new trial. 

The court sentenced defendant to a state prison term of 

eight years calculated as follows: a midterm of two years on the 

base count (count 1), plus a consecutive one-year term for the 

deadly weapon enhancement, and a consecutive five-year term 

for the prior conviction pursuant to Penal Code section 667, 
8

subdivision (a)(1). The court imposed and stayed a six-month 

term on count 3 and awarded defendant 1,166 days of 

presentence custody credits. 

The court imposed a court security fee of $40, a criminal 

conviction assessment of $30, a $300 victim restitution fine and a 

$300 parole revocation fine. The court ordered that all fines and 

fees were to be “suspended given [defendant’s] medical issues.”

Following remand from the Supreme Court, respondent 

submitted a supplemental letter brief conceding that defendant is 

entitled to a limited remand for purposes of the trial court 

conducting an eligibility hearing pursuant to Penal Code 

section 1001.36. Defendant did not submit a supplemental letter 

brief.

DISCUSSION

1. Penal Code Section 1001.36 

Penal Code section 1001.36 was enacted in June 2018, 

during the pendency of this appeal. It authorizes the diversion of 

certain alleged offenders into mental health treatment programs

in lieu of criminal prosecution. (§ 1001.36, subd. (a) [court may 

“grant pretrial diversion to a defendant pursuant to this section if 

the defendant meets all of the requirements specified in 

paragraph (1) of subdivision (b)”].)

Frahs concluded that Penal Code section 1001.36 applies 

retroactively because it mitigates the possible punishment for a 

specific class of offenders with certain enumerated mental health 

conditions and there is no clear contraindication of legislative 

intent. (Frahs, supra, 9 Cal.5th at pp. 630-637; see also In re 

Estrada (1965) 63 Cal.2d 740, 742-748 [an amendatory statute 

lessening punishment for a crime is presumptively retroactive, 

absent clear legislative intent for prospective application, and 
9

applies to all defendants whose judgments are not final at the 

time the statute becomes effective].) 

Frahs explained that, in light of the retroactivity of the 

statute, “a conditional limited remand for the trial court to 

conduct a mental health diversion eligibility hearing is 

warranted when, as here, the record affirmatively discloses that 

the defendant appears to meet at least the first threshold 

eligibility requirement for mental health diversion—the 

defendant suffers from a qualifying mental disorder.” (Frahs, 

supra, 9 Cal.5th at p. 640.) 

Here, as respondent concedes, at least one of the 

psychiatrists who examined defendant determined that, while he 

was competent to stand trial, he nonetheless suffered from 

mental illness consistent with schizophrenia or schizoaffective 

disorder. Both of these disorders are enumerated at Penal Code 

section 1001.36, subdivision (b)(1)(A). 

Additionally, defendant was not convicted of any of the 

disqualifying offenses enumerated in subdivision (b)(2) of Penal 

Code section 1001.36.

We find defendant is therefore entitled to a conditional 

limited remand to allow the trial court the opportunity to conduct 

a mental health diversion hearing in accordance with Penal Code 

section 1001.36. If the trial court finds that defendant suffers 

from a qualifying mental disorder, does not pose an unreasonable 

risk of danger to public safety, and otherwise meets all of the 

statutory criteria set forth in section 1001.36, then the court may

grant mental health diversion in accordance with the statutory 

scheme. If defendant successfully completes

diversion, then the court shall dismiss the charges.

However, if the court determines that defendant does
10

not meet the criteria under Penal Code section 1001.36, or if

defendant does not successfully complete mental health 

diversion, then his conviction and sentence shall be reinstated. 

In the event defendant’s conviction is reinstated, we discuss 

and resolve defendant’s other appellate contentions. As in our 

original opinion, we reject his claims of error, except we find that 

the court may exercise its discretion to strike the five-year 

enhancement imposed pursuant to Penal Code section 667, 

subdivision (a)(1) as discussed in part 9, post. 

2. The First Competency Hearing 

Defense counsel first declared a doubt during pretrial 

proceedings in September 2015. The court suspended 

proceedings and, after a doctor found him competent, reinstated 

proceedings in October 2015. After trial, before sentencing, 

defense counsel again declared a doubt in February 2016. The 

court again suspended proceedings and, after he was found 

competent, reinstated proceedings in March 2016. Defendant’s 

competence was examined a third time before the court granted 

his Faretta motion.

Defendant makes no claim of error regarding the two 

posttrial competency hearings. He claims only that at the first 

hearing, the trial court prejudicially erred in failing to expressly 

find him competent to stand trial. 

A defendant is presumed competent to stand trial, unless 

the contrary is established by a preponderance of the evidence. 

(People v. Campbell (1976) 63 Cal.App.3d 599, 608; see also 

Pen. Code, § 1369, subd. (f).) “A defendant is deemed 

incompetent to stand trial if he lacks ‘ “ ‘sufficient present ability 

to consult with his lawyer with a reasonable degree of rational 

understanding . . . [or] a rational as well as factual 
11

understanding of the proceedings against him [or her].’ ” ’ ” 

(People v. Lightsey (2012) 54 Cal.4th 668, 690; accord, People v. 

Mickel (2016) 2 Cal.5th 181, 194-195; see also § 1367, subd. (a) 

[“A defendant is mentally incompetent . . . if . . . 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.”].)

In reviewing a finding of competency, we are governed by 

the substantial evidence test. (People v. Marshall (1997) 

15 Cal.4th 1, 31 (Marshall).) “Evidence is substantial if it is 

reasonable, credible, and of solid value.” (Ibid.) A review of the 

complete record here reveals substantial evidence supports the 

court’s written finding of competency. 

After counsel declared a doubt the first time at a pretrial 

hearing, the court suspended proceedings, a doctor examined 

defendant and submitted his report, and the parties returned to 

court the next month. Defense counsel reported that 

Dr. Rothberg “came back with the opinion that [defendant] is not 

1368.” The court and counsel then discussed setting a trial date. 

Defense counsel said, “I believe at this point we are . . . at 47 of 

60.” The court responded, “I thought it went to 0 of 60.” The 

prosecutor said, “When a doubt is declared and they come back, 

it’s 0 of 60.” 

Defense counsel then said defendant wanted a Marsden

hearing. Before clearing the courtroom to conduct the Marsden

hearing, the court asked if there was a report finding defendant 

competent for purposes of self-representation. Defense counsel 

said the issue was addressed in Dr. Rothberg’s report. The court 

then conducted a lengthy Marsden hearing, discussing various 

issues and concerns raised by defendant. The Marsden request 

was denied. The court’s minute order for that date includes the 

following: “The court has read and considered a report. 
12

Defendant is found competent. [¶] Criminal proceedings are 

reinstated.” 

It is well established that “once a trial court has ordered a 

competency hearing pursuant to [Penal Code] section 1368, the 

court lacks jurisdiction to conduct further proceedings on the 

criminal charge or charges against the defendant until the court 

has determined whether he is competent.” (People v. Marks

(1988) 45 Cal.3d 1335, 1337 (Marks).) 

Defendant relies on Marks in asserting the trial court failed 

to make an express finding of competency and improperly 

deferred to defense counsel’s assessment of Dr. Rothberg’s report. 

We are not persuaded by defendant’s characterization of the first 

competency hearing and find Marks is inapposite. 

The trial court in Marks erred by agreeing to the defense 

counsel’s request to take the competency hearing off-calendar 

without saying anything to suggest the court found defendant 

competent. The court went along with the defense counsel’s 

request and failed to hold a hearing or make any written or oral 

ruling as to the defendant’s competency. (Marks, supra, 

45 Cal.3d at p. 1339.) 

Marks stated: “[N]o ‘magic words’ are required of the trial 

court. We hold, however, that the constitutional right to due 

process, [Penal Code] section 1369, and our holding in [People v. 

Hale (1988) 44 Cal.3d 531], require, at a minimum, that the trial 

court expressly and unmistakably state on the record, either orally 

or in writing, its determination as to whether the defendant is 

mentally competent to stand trial.” (Marks, supra, 45 Cal.3d at 

p. 1343.) 

Here, right after defense counsel reported the doctor found 

defendant was competent (he “is not 1368”), counsel discussed the 
13

trial schedule with the court. There is no doubt that the court 

and counsel all understood the court found defendant was 

competent, because they agreed that date was 0 of 60, meaning 

defendant was entitled to be brought to trial within 60 days of 

that date. This highly experienced trial judge and both counsel 

plainly understood that time does not run for the purpose of 

protecting defendant’s speedy trial rights while a defendant is 

incompetent. 

When defense counsel asked for a Marsden hearing, the 

court wanted to know what the expert had to say about 

defendant’s competency to represent himself, counsel pointed the 

court to the expert’s report, and the court held a Marsden

hearing. Defense counsel would not have requested a Marsden 

hearing if counsel had been uncertain whether the court found 

defendant was competent to stand trial. Likewise, the court 

would not have held a Marsden hearing if the court had not found 

defendant was competent to explain to the court why he wanted 

new counsel. The minutes of the proceedings state the court read 

the expert’s report, after which the court found defendant 

competent and reinstated proceedings. In the criminal courts, 

judges and lawyers who frequently appear before them often 

speak to one another in shorthand. Recognizing this, the Marks 

court said no magic words are required to reinstate proceedings 

so long as the trial court record unmistakably shows whether the 

trial court made a competency finding. That is the case here.

3. The Pretrial Faretta Motion 

Defendant contends it was structural error for the trial 

court to deny his oral pretrial request to represent himself. We 

disagree. 
14

The Sixth Amendment right to self-representation 

articulated in Faretta is not absolute. (People v. Butler (2009) 

47 Cal.4th 814, 825.) “Unlike the right to representation by 

counsel, the ‘ “right of self-representation is waived unless 

defendants articulately and unmistakably demand to proceed pro 

se.” ’ ” (People v. Danks (2004) 32 Cal.4th 269, 295, italics added.) 

In order to protect the fundamental constitutional right to 

the effective assistance of counsel, “one of the trial court’s tasks 

when confronted with a motion for self-representation is to 

determine whether the defendant truly desires to represent

himself or herself.” (Marshall, supra, 15 Cal.4th at p. 23.) In so 

doing, “courts must draw every inference against supposing that 

the defendant wishes to waive the right to counsel.” (Ibid.) 

Courts “should evaluate not only whether the defendant has 

stated the motion clearly, but also the defendant’s conduct and 

other words. Because the court should draw every reasonable 

inference against waiver of the right to counsel, the defendant’s 

conduct or words reflecting ambivalence about self-representation

may support the court’s decision to deny the defendant’s motion. 

A motion for self-representation made in passing anger or 

frustration, an ambivalent motion, or one made for the purpose of 

delay” may be denied without running afoul of the Constitution. 

(Ibid.)

“In determining on appeal whether the defendant invoked 

the right to self-representation, we examine the entire record de 

novo.” (People v. Dent (2003) 30 Cal.4th 213, 218.)

The record here demonstrates that defendant did not make 

a clear and unequivocal request to represent himself at trial. At 

the October 7, 2015 Marsden hearing, defendant expressed his 

dissatisfaction with his appointed counsel, primarily for allegedly 
15

failing to subpoena the witnesses defendant believed were 

important to his defense. The court explained to defendant that 

the victims and other witnesses would not be subpoenaed until it 

was time for trial. Defendant continued to assert that his 

attorney was not representing him properly. Defendant said 

“I don’t want anyone on this” and “I want to handle it [the 

subpoenas] when that happens.” 

These comments are followed by a long colloquy addressing 

primarily various medical complaints by defendant, as well as 

comments by defense counsel attempting to explain the efforts he 

had made on the case and his efforts to communicate, 

unsuccessfully apparently, with defendant. 

Defendant then interjected, “I want to exercise my Faretta

rights, ma’am.” However, the conversation then returned to a 

discussion of the actions taken by his counsel, including both trial 

counsel and counsel who handled defendant’s preliminary 

hearing. Ultimately, defendant’s comments returned to his 

desire to subpoena the relevant witnesses.

The court said it sounded like defendant just wanted to get 

the case set for trial, and defendant confirmed that is what he 

wanted, but he did not want to be represented by the public 

defender’s office because it was “not going to work.” The court

told defendant he could not paint all of the deputy public 

defenders with the same “broad brush” but had to point out 

proper bases for substituting counsel and he had not done so.

Defendant said if he could not exercise his Faretta rights, 

he wanted another attorney. He wanted to have an attorney of 

his “own color.” The court advised defendant that was not a 

proper basis for substituting counsel. 
16

Defendant said counsel had made unspecified 

misrepresentations to him and that “last time [he] was [in court]” 

he asserted his Faretta rights. The court responded by telling 

defendant, “meaning no disrespect at all—so you understand that 

at—at the last court appearance, you weren’t making any sense 

at all” thus necessitating the proceedings being suspended to 

allow defendant to be examined for competence. The court told 

defendant that it could set the case for trial if that is what he 

wanted, and the witnesses he thought were important could then 

be subpoenaed. Defendant said yes, he wanted to subpoena 

Mr. Khouri (Joe) and another gas station employee that had 

worked the morning of the incident (Sam). 

The Marsden hearing was concluded, the proceedings were 

resumed and a trial date set. There were no further statements 

by defendant stating any desire to proceed in propria persona. 

Defendant did not make an unequivocal request to 

represent himself. (See, e.g., People v. Tena (2007) 

156 Cal.App.4th 598, 608 [the defendant’s remarks about selfrepresentation after denial of Marsden request were “impulsive 

reactions” to “frustrated attempts to secure an attorney who 

would subpoena the witnesses that he desired, rather than 

unequivocal Faretta requests”]; People v. Scott (2001) 

91 Cal.App.4th 1197, 1205, fn. 3 [request to self-represent 

equivocal where after denial of Marsden request, defendant 

asked to proceed in pro se].) 

4. Count 1—Criminal Threats 

Defendant contends there is insufficient evidence 

supporting his conviction for making criminal threats in violation 

of Penal Code section 422. We are not persuaded. 
17

We review the evidence according to the familiar standard. 

(People v. Rodriguez (1999) 20 Cal.4th 1, 11 [“In assessing a claim 

of insufficiency of evidence, the reviewing court’s task is to review 

the whole record in the light most favorable to the judgment to 

determine whether it discloses substantial evidence—that is, 

evidence that is reasonable, credible, and of solid value—such 

that a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt.”].) 

The record contains ample evidence supporting the jury’s 

conclusion that defendant violated Penal Code section 422, the 

elements of which are: “(1) that the defendant ‘willfully 

threaten[ed] to commit a crime which will result in death or great 

bodily injury to another person,’ (2) that the defendant made the 

threat ‘with the specific intent that the statement . . . is to be 

taken as a threat, even if there is no intent of actually carrying it 

out,’ (3) that the threat—which may be ‘made verbally, in 

writing, or by means of an electronic communication device’—was

‘on its face and under the circumstances in which it [was] made, 

. . . so unequivocal, unconditional, immediate, and specific as to 

convey to the person threatened, a gravity of purpose and an 

immediate prospect of execution of the threat,’ (4) that the threat 

actually caused the person threatened ‘to be in sustained fear for 

his or her own safety or for his or her immediate family’s safety,’ 

and (5) that the threatened person’s fear was ‘reasonabl[e]’ under 

the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-

228.)

The testimony of Mr. Petroff and Mr. Khouri, which was 

largely corroborated by the security camera footage, established 

that three times, defendant approached the glass doors of the gas 

station garage and waved a large knife in a threatening manner. 
18

Both men testified that defendant was angrily cursing at them 

and he threatened to kill Mr. Petroff at least twice. Mr. Khouri 

also said defendant appeared drunk and that he knew him to act 

crazy and out of control when he was drunk and that he had 

never seen him that angry before. Mr. Khouri testified that 

Mr. Petroff appeared nervous and scared. Mr. Petroff was 

unequivocal that he was shocked and intimidated by defendant’s 

behavior. He feared for his safety and did not believe he could 

safely leave the locked garage and therefore had to call the police 

to intervene. 

We are not persuaded by defendant’s argument that any 

fear experienced by Mr. Petroff was only “fleeting or transitory.” 

(In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Defendant’s 

angry and threatening behavior lasted for several minutes, 

during which time Mr. Petroff remained inside the locked garage 

until the police arrived because he feared defendant might follow 

through on his threats. 

5. The Failure to Instruct on Attempt 

Defendant contends the trial court committed prejudicial 

instructional error by failing to instruct on the lesser included 

charge of attempted criminal threats. Defendant concedes he did 

not request the instruction, but contends his substantial rights 

were affected (Pen. Code, § 1259) and that the court had a sua 

sponte duty to instruct on the lesser included charge. The 

contention is without merit. 

“ ‘A trial court has a sua sponte obligation to instruct the 

jury on any uncharged offense that is lesser than, and included 

in, a greater charged offense, but only if there is substantial 

evidence supporting a jury determination that the defendant was 

in fact guilty only of the lesser offense.’ ” (People v. Rangel (2016) 
19

62 Cal.4th 1192, 1224-1225, italics added; accord, People v. 

Thomas (2012) 53 Cal.4th 771, 813.) 

As we already explained in part 4, ante, there was 

substantial evidence defendant engaged in threatening behavior 

that caused Mr. Petroff to experience sustained fear within the 

meaning of Penal Code section 422. No reasonable construction 

of the record supports the conclusion that defendant was guilty 

only of attempted criminal threats. As such, no sua sponte duty 

to instruct with the lesser included charge arose. 

6. The Deadly Weapon Enhancement 

Defendant contends there was insufficient evidence to 

support the enhancement for using the knife as a deadly weapon. 

“In assessing the sufficiency of the evidence, we review the 

entire record in the light most favorable to the judgment to 

determine whether it discloses evidence that is reasonable, 

credible, and of solid value such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable 

doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) “The 

test is whether substantial evidence supports the decision, not 

whether the evidence proves guilt beyond a reasonable 

doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) The 

reviewing court’s “opinion that the evidence could reasonably be 

reconciled with a finding of innocence or a lesser degree of crime 

does not warrant a reversal of the judgment.” (People v. Hill

(1998) 17 Cal.4th 800, 849.) Reversal is only warranted when it 

clearly appears “ ‘that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the 

conviction].’ ” (Bolin, at p. 331.) 

“As used in [Penal Code] section 245, subdivision (a)(1), a 

‘deadly weapon’ is ‘any object, instrument, or weapon which is 
20

used in such a manner as to be capable of producing and likely to 

produce, death or great bodily injury. [Citation.] Some . . . 

objects, such as dirks and blackjacks, have been held to be deadly 

weapons as a matter of law; the ordinary use for which they are 

designed establishes their character as such. [Citations.] Other 

objects, while not deadly per se, may be used, under certain 

circumstances, in a manner likely to produce death or great 

bodily injury. In determining whether an object not inherently 

deadly or dangerous is used as such, the trier of fact may consider 

the nature of the object, the manner in which it is used, and all 

other facts relevant to the issue. [Citations.]” (People v. Aguilar

(1997) 16 Cal.4th 1023, 1028-1029.) The question is whether the 

weapon was used in a way that was likely to cause significant or 

substantial injury. (People v. Beasley (2003) 105 Cal.App.4th 

1078, 1087.)

Here, the evidence supports the jury’s conclusion defendant 

used the knife as a deadly weapon. Several times, defendant 

walked right up to the window of the mechanic’s area where 

Mr. Petroff was talking with Mr. Khouri. He appeared to be 

angry and drunk. He was waving a seven-inch long knife that 

looked like a meat cleaver or butcher knife in a threatening way 

while he told Mr. Petroff “I’m going to kill you” or “I could kill you 

with this.” On this record, the jury could reasonably conclude the 

knife was used as a deadly weapon. (See People v. Monjaras

(2008) 164 Cal.App.4th 1432, 1437 [where defendant menacingly 

displayed gun tucked into his waistband and ordered the victim 

to give him her purse, “the jury was entitled to take defendant at 

his word, so to speak, and infer from his conduct that the pistol 

was a real, loaded firearm and that he was prepared to shoot the 

victim with it if she did not comply with his demand”]; Cf. In re 
21

B.M. (2018) 6 Cal.5th 528, 536 [no substantial evidence that 

butter knife was used as a deadly weapon where it was mildly 

pressed against victim’s blanketed legs, and not against any 

vulnerable or exposed part of the body such as head, face or 

neck].) 

Defendant also asserts the court prejudicially erred by 

failing to instruct the jury regarding the use of a deadly weapon. 

Respondent concedes the trial court had a sua sponte duty to give 

CALCRIM No. 3145 because it defines the elements of the 

enhancement. We agree with respondent that the error was 

harmless beyond a reasonable doubt. (People v. Mil (2012) 

53 Cal.4th 400, 417.) There was compelling evidence that 

defendant, who was drunk and angry, brandished a large knife 

while telling Mr. Petroff he intended to kill him with it. The jury 

could only have reasonably concluded on this record that 

defendant used a deadly weapon.

7. The Instruction on Count 3 

Defendant asserts the court erred by using the term “knife” 

instead of “deadly weapon” when instructing the jury on 

misdemeanor exhibition of a deadly weapon. Defendant has 

forfeited this contention by failing to object in the trial court. 

(Bolin, supra, 18 Cal.4th at p. 328.) We are not persuaded the 

modification affected defendant’s substantial rights. If there 

were any error, it was harmless, as the knife was the only deadly 

weapon to which any witness testified, and there could have been 

no jury confusion on that point. 

8. The Motion for New Trial 

Defendant contends the court erred in denying his 

nonstatutory motion for new trial based on the grounds of 

ineffective assistance of counsel. We disagree.
22

“Although ineffective assistance of counsel is not among the 

grounds enumerated for ordering a new trial under Penal Code 

section 1181, motions alleging ineffective assistance are 

permitted pursuant to ‘the constitutional duty of trial courts to 

ensure that defendants be accorded due process of law.’ ” (People 

v. Callahan (2004) 124 Cal.App.4th 198, 209.) 

Our review of the court’s ruling on a nonstatutory motion 

for new trial is de novo. “A defendant’s claim that he or she was 

deprived of the constitutional right to effective assistance of 

counsel ‘presents a mixed question of fact and law,’ and we 

accordingly review such question independently. [Citation.] We 

accord deference to the trial court’s factual determinations if 

supported by substantial evidence in the record but exercise our 

independent judgment in deciding whether the facts demonstrate 

trial counsel’s deficient performance and resulting prejudice to 

the defendant.” (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 

76.) 

The ineffective assistance claim is based almost exclusively 

on defendant’s claim that Mr. Petroff and Mr. Khouri were liars 

and that trial counsel failed to impeach them. Ordinarily, 

tactical trial decisions by counsel, such as the manner of pursuing 

cross-examination of witnesses, are afforded substantial 

deference. (People v. Hayes (1990) 52 Cal.3d 577, 621.) 

“ ‘A reviewing court will not second-guess trial counsel’s 

reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th 

1153, 1185; accord, People v. Boyette (2002) 29 Cal.4th 381, 424.)

Defendant fails to articulate any reasonable basis for 

second-guessing trial counsel’s decisions on how to cross-examine 

Mr. Petroff and Mr. Khouri. Defendant’s primary complaint 

against counsel is based on an apparent typographical error in 
23

one of the police reports. In a paragraph discussing both 

Mr. Petroff and Mr. Khouri, there is a sentence stating that 

Mr. Petroff reported defendant sometimes makes threats and 

gets angry but he did not believe defendant would attack him. 

While attributed to Mr. Petroff, the statement is consistent with 

the testimony Mr. Khouri gave at trial and is not consistent with 

anything Mr. Petroff ever said. It is the statement of someone 

who had regular contact with defendant, like Mr. Khouri. In 

contrast, it is not consistent with Mr. Petroff’s trial testimony, 

pretrial interview or 911 call that Mr. Petroff had never seen 

defendant before that night—a fact which defendant does not 

dispute. Defendant nevertheless insists it was impeachment that 

should have been pursued by trial counsel to show Mr. Petroff 

was a liar. Defendant has not met his burden of demonstrating 

ineffective assistance of trial counsel in the cross-examination of 

the two main witnesses. 

The remaining claims of ineffective assistance are similarly 

without merit and do not warrant further discussion. 

9. Penal Code Section 667, Subdivision (a)(1) 

Defendant contends, and respondent concedes, that the 

trial court may exercise its newly granted discretion under 

Senate Bill No. 1393 (2017-2018 Reg. Sess.). As relevant here, 

Senate Bill No. 1393 amended provisions of Penal Code 

section 667 and section 1385, granting discretion to trial courts to 

strike a prior serious felony conviction in connection with 

imposition of the five-year enhancement set forth in section 667, 

subdivision (a)(1). (Stats 2018, ch. 1013, § 1, § 2.) The 

amendatory provisions became effective January 1, 2019, during 

the pendency of this appeal.
24

At the time defendant was sentenced in November 2017, 

imposition of a consecutive five-year term pursuant to Penal Code 

section 667, subdivision (a)(1) was mandatory. In In re Estrada,

supra, 63 Cal.2d at pages 744-745, the California Supreme Court 

held that, absent evidence of contrary legislative intent, it is an 

“inevitable inference” that the Legislature meant for new 

statutes that reduce the punishment for certain prohibited acts to 

apply retroactively to every case not yet final on appeal. It is 

undisputed that defendant’s appeal was not final at the time the 

new provision went into effect. We agree with the parties that 

defendant is therefore entitled to the benefit of the amendatory 

provision. 

At oral argument, defense counsel advised us that the trial 

court exercised its discretion while this appeal was pending to 

strike the five-year enhancement, as evidenced by an amended 

abstract of judgment filed June 6, 2019. The trial court had no 

jurisdiction to strike the enhancement while the case was 

pending appeal. We express no displeasure with the court’s 

decision to strike the enhancement while this appeal was 

pending. However, if the trial court concludes that defendant is 

not eligible for mental health diversion under Penal Code 

section 1001.36 or if defendant’s conviction is reinstated because 

he fails to complete diversion, then the court shall have the 

opportunity to exercise its discretion once again on the five-year 

prior after the remittitur has formally restored jurisdiction in the 

trial court. 

DISPOSITION

The conviction and sentence of defendant and appellant 

James Ronnie Moore is conditionally reversed for a limited 

remand with the following instructions: 
25

If the trial court finds that defendant suffers from a

qualifying mental disorder, does not pose an unreasonable risk of 

danger to public safety, and otherwise meets all of the statutory 

criteria set forth in Penal Code section 1001.36, then the court 

may grant mental health diversion in accordance with the 

statutory scheme. If defendant successfully completes

diversion, then the court shall dismiss the charges.

However, if the court determines that defendant does

not meet the criteria under Penal Code section 1001.36, or if

defendant does not successfully complete mental health 

diversion, then his conviction and sentence shall be reinstated. 

In the event defendant’s conviction is reinstated, the trial court 

shall exercise its discretion whether to strike the five-year 

enhancement pursuant to Penal Code section 667, 

subdivision (a)(1) and shall thereafter prepare and forward a new 

abstract of judgment to the Department of Corrections and 

Rehabilitation.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

WILEY, J.