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Filed 7/20/21 P. v. Feinga CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

OFA KI FEINGA,

Defendant and Appellant.

C086735

(Super. Ct. No. 16FE021729)

Defendant Ofa Ki Feinga appeals from a conviction for assault with a deadly 

weapon. On appeal, he contends: (1) the trial court violated his right to due process by 

admitting the testimony of a child witness because it was inherently improbable and 

based on inadmissible hearsay, and (2) he is entitled to a remand to allow the trial court to 

determine whether to grant him a mental health diversion under Penal Code section 

1001.36 (unless otherwise stated, statutory section references that follow are found in the 

Penal Code). 
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We agree that section 1001.36 is retroactive and will remand to the trial court to 

determine whether defendant qualifies under the statute.

FACTS AND PROCEEDINGS

The Charged Incident

At the request of her granddaughter, Nancy, Erma W. went to the front door where 

she saw defendant, a former neighbor, talking to the victim, Nancy’s father. For months, 

defendant had accused the victim of having an intimate relationship with defendant’s

wife. Suddenly, defendant “sucker punched” the victim and left in his car. About 20 to 

30 minutes later, the victim was sitting in his garage with his back to the entrance. A 10-

year-old neighbor came over to visit the victim’s son when he saw defendant pull up in a 

maroon sports utility vehicle (SUV) and walk into the garage. Without saying anything, 

defendant raised his hand and hit the victim on the head with an object. The victim felt 

two hits to the back of his head, tried to stand up, and collapsed to the floor. He then 

looked up and saw defendant towering over him with his hand up, holding an object with 

a long handle that the victim initially thought was his hatchet he kept in the garage.

Nancy, who was standing near the back door, initially testified that she saw 

defendant walk up with an object she described as a sledgehammer and hit her father. 

However, on cross-examination, Nancy grew confused and made inconsistent statements 

about whether she saw the blow. On redirect examination, Nancy said she “saw 

[defendant] hitting my dad” and she saw her “dad put his arms up” across his face, and 

then she went to her grandmother’s room. Erma W. testified that Nancy came to her

bedroom and was “very upset.” Erma W. went to the door and saw defendant getting into 

his maroon SUV with a bloody hammer in his hand and speed away. She then went to 

the garage and found the victim was bleeding from his head. He was hospitalized and 

treated for severe injuries.
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The responding police officer went to defendant’s home, and his family directed 

the officer to an outbuilding where he lived. There was a broken sledgehammer with a 

splatter of red substance on it outside of the building, but the officer could not tell 

whether the substance was blood. Erma W. identified the sledgehammer as the weapon 

she saw defendant carrying.

Trial Proceedings

Defendant was charged with assault with a deadly weapon. (§ 245, subd. (a)(1).) 

The information further alleged that he personally inflicted great bodily injury upon the 

victim. (§ 12022.7, subd. (a).)

The case was tried by a jury. After Nancy’s inconsistent testimony, defense

counsel moved to strike “some or all of Nancy’s testimony” on hearsay grounds. 

Specifically, he asked the court to strike “a lot of her testimony that wasn’t directly to 

observation [sic]” because he did not believe Nancy saw defendant hit her dad but likely 

saw defendant come into the garage and then ran to her grandmother. He conceded that 

Nancy, who was eight years old at the time of the trial, might have struggled with 

distinguishing what she saw as opposed to what she knew. The prosecutor countered that 

the issues raised by trial counsel went to the weight of the evidence, not its admissibility. 

The prosecutor agreed that her testimony was “a little bit all over the place” but one of 

the issues for the jury to consider in evaluating her testimony was her “obvious fear” on 

the witness stand. The prosecutor described how Nancy presented the second part of her 

testimony “dominantly hunched over where [one] could barely see her head above the 

witness table, her back to the defendant.” The prosecutor further noted that after she was 

asked to look at defendant during her testimony, she testified with her hand up, blocking 

her eye.

The court denied the motion to strike, explaining: “[Nancy] appeared to be 

extremely frightened. She would essentially turn her back to me, put the microphone 

down almost underneath the witness stand to testify. She did appear to be frightened. [¶] 
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She’s extremely young.” The court further reasoned: “[S]ometimes it did seem like she 

answered depending on who was asking her the question. So the Court’s of the opinion 

that it’s either prior consistent or inconsistent statements. [¶] I thought defense counsel 

did a good job -- or an excellent job in terms of bringing out the possibility that she never 

actually saw the blow, but it’s hard for this Court to say when she was relying on 

something that she was told, because multiple times she would say, yes, I was told some 

things, but then when pressed what she was told about, she couldn’t come up with 

anything specific. [¶] So I do think it goes to the weight, not the admissibility, and I’m 

sure defense counsel will bring that out clearly on closing argument.”

The jury found defendant guilty of assault with a deadly weapon and found the 

special allegation true. The trial court sentenced defendant to the middle term of three 

years in state prison plus an additional three years for the enhancement.

DISCUSSION

I

Motion to Strike

Defendant argues the trial court prejudicially erred in refusing to strike Nancy’s 

testimony because it was inherently incredible and based on inadmissible hearsay. The

People argue that the court did not err in declining to strike the testimony and any alleged 

error was harmless in light of the extensive evidence against defendant. We conclude the 

court’s ruling was correct.

A trial court’s ruling on the admission and exclusion of evidence, including a 

ruling on a motion to strike testimony, is reviewed for abuse of discretion. (People v. 

Thompson (2010) 49 Cal.4th 79, 128, 130.) We will not disturb the trial court’s ruling on

appeal “except on a showing the trial court exercised its discretion in an arbitrary, 

capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” 

(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) “It is for the trier of the fact to resolve 
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inconsistencies and contradictions, if any, in the evidence, [citation], unless it can be 

stated the evidence is inherently improbable or incredible as a matter of law.” (People v. 

Knighton (1967) 250 Cal.App.2d 221, 231.) Evidence is inherently improbable when it is 

“unbelievable upon its face or is physically impossible.” (People v. Carpenter (1955) 

136 Cal.App.2d 726, 728.)

Here, Nancy’s testimony was neither unbelievable on its face nor physically 

impossible. While she gave inconsistent statements about whether she saw the actual 

blow, her statements that she saw defendant in the garage and went to get her 

grandmother were consistent with the other witnesses’ testimony and it was not 

inherently improbable or physically impossible that she witnessed defendant strike her 

father. The contradictions in her testimony went to its weight and were for the jury to 

resolve. “Contradictions and inconsistencies in the testimony of a witness alone will not 

constitute inherent improbability.” (People v. Amadio (1914) 25 Cal.App. 729, 730.) 

This is because it is the sole province of the trier of fact to determine the credibility of a 

witness and resolve evidentiary conflicts. (People v. Maury (2003) 30 Cal.4th 342, 403.) 

Further, defendant’s reliance on People v. Lang (1974) 11 Cal.3d 134 is not well taken. 

There, our high court concluded that the defendant’s appellate counsel was ineffective for 

failing to raise a challenge to the sufficiency of the evidence because “[a] properly 

briefed argument . . . might well have led the Court of Appeal to conclude the alleged 

assaults were physically impossible.” (Id. at p. 139.) But the court did not conclude that 

the testimony was in fact inherently improbable or physically impossible. (Ibid.) 

Accordingly, Lang is not apposite. Defendant’s reliance on U.S. v. Chancey (11th Cir. 

1983) 715 F.2d 543, a nonbinding sufficiency of the evidence case, is similarly 

unavailing. There, the incredible testimony of a single witness was insufficient to 

support the conviction. (Id. at pp. 546-547.) Here, the conviction was supported by the 

testimony of multiple witnesses and physical evidence. Thus, defendant’s citation to 

Chancey is unpersuasive.
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Further, Nancy’s testimony was not based on inadmissible hearsay. “ ‘Hearsay 

evidence’ is evidence of a statement that was made other than by a witness while 

testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. 

Code, § 1200, subd. (a).) Nancy was asked about whether adults told her who hit her 

father several times, and she repeatedly denied that anyone told her that defendant hit her 

father. While Nancy gave inconsistent statements about whether she saw defendant 

deliver the blow, she insisted that she saw defendant’s vehicle herself and that is how she 

knew who it was. As the trial court observed, “[I]t’s hard for this Court to say when she 

was relying on something that she was told, because multiple times [Nancy] would say, 

yes, I was told some things, but then when pressed what she was told about, she couldn’t 

come up with anything specific.” Defendant did not and cannot show which portions of 

Nancy’s testimony, if any, were based on inadmissible hearsay, so he instead contends 

that the entirety of her testimony should have been stricken. Not so. Where the record 

does not clearly indicate that the testimony was hearsay, the trial court may properly 

decline to strike the testimony. (See Pfingsten v. Westenhaver (1952) 39 Cal.2d 12, 19.)

II

Mental Health Diversion

Defendant argues this matter must be remanded to give the trial court the 

opportunity to consider granting him mental health diversion as authorized by section 

1001.36, which became effective June 27, 2018, after his judgment was entered. (Stats. 

2018, ch. 34, § 24.) He points to evidence in the record showing he suffers from a 

qualifying mental health disorder, schizophrenia.

Section 1001.36 authorizes a trial court to grant “pretrial diversion,” a 

postponement of prosecution to allow the defendant to undergo mental health treatment, 

if the defendant meets specified requirements. (§ 1001.36, subds. (a), (c).) Successful 

completion of diversion results in the dismissal of the original charges. (§ 1001.36, subd. 

(e).) Section 1001.36 provides pretrial diversion may be granted if the trial court finds all 
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of the following criteria are met: (1) the defendant suffers from a recently diagnosed 

mental disorder enumerated in the statute; (2) the disorder was a significant factor in the 

commission of the charged offense, and that offense is not one of the offenses 

enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental health expert, 

the defendant’s symptoms of the mental disorder motivating the criminal behavior would 

respond to mental health treatment”; (4) the defendant consents to diversion and waives 

his or her right to a speedy trial; (5) the defendant agrees to comply with treatment as a 

condition of diversion; and (6) the defendant will not pose an unreasonable risk of danger 

to public safety, as defined in section 1170.18, if treated in the community. (§ 1001.36, 

subd. (b)(1)-(2).) If the treatment under pretrial diversion is deemed successful, the 

charges shall be dismissed and the defendant’s criminal record expunged. (§ 1001.36,

subds. (b)(1)(A)-(C), (c)(3), (e).)

The statute further provides: “At any stage of the proceedings, the court may 

require the defendant to make a prima facie showing that the defendant will meet the 

minimum requirements of eligibility for diversion and that the defendant and the offense 

are suitable for diversion. The hearing on the prima facie showing shall be informal and 

may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima 

facie showing is not made, the court may summarily deny the request for diversion or 

grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)

The People argue that section 1001.36 is inapplicable to already-adjudicated 

matters. Whether a particular statute is intended to apply retroactively is a matter of 

statutory interpretation. (In re Estrada (1965) 63 Cal.2d 740 (Estrada); People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).) In general, new criminal 

legislation is presumed to apply prospectively unless the statute expressly declares a 

contrary intent. However, where the Legislature has reduced punishment for criminal 

conduct, an inference arises under Estrada “ ‘that, in the absence of contrary indications, 

a legislative body ordinarily intends for ameliorative changes to the criminal law to 
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extend as broadly as possible, distinguishing only as necessary between sentences that are 

final and sentences that are not.’ [Citations.]” (Lara, supra, at p. 308.) Subsequent to 

briefing in this case, the Supreme Court decided People v. Frahs (2020) 9 Cal.5th 618 

(Frahs). It is now clear that section 1001.36 must be given retroactive application, and 

defendant is entitled to a limited remand to the trial court for a determination of his 

eligibility for mental health diversion. (Frahs, supra, at pp. 640-641.) 

In Frahs, our Supreme Court concluded Estrada’s inference of retroactivity 

applies to section 1001.36 such that defendants with qualifying mental disorders whose 

cases are not yet final are entitled to limited remand for the trial court to determine 

whether they are eligible for mental health diversion. (Frahs, supra, 9 Cal.5th at pp. 624-

625; see Estrada, supra, 63 Cal.2d 740.) The “possibility of being granted mental health 

diversion rather than being tried and sentenced ‘can result in dramatically different and 

more lenient treatment.’ ” (Frahs, supra, at p. 631, quoting Lara, supra, 4 Cal.5th at 

p. 303.) As the court explained, “the impact of a trial court’s decision to grant diversion 

can spell the difference between, on the one hand, a defendant receiving specialized 

mental health treatment, possibly avoiding criminal prosecution altogether, and even 

maintaining a clean record, and on the other, a defendant serving a lengthy prison 

sentence.” (Frahs, supra, at p. 631.) Thus, “the ameliorative nature of the diversion 

program places it squarely within the spirit of the Estrada rule,” and the program 

retroactively applies to defendants whose cases are not yet final. (Ibid.) That is the case 

for defendant here.

Defendant appears to meet the first threshold requirement for eligibility for mental 

health diversion—he suffers from a qualifying mental disorder schizophrenia. 

(§ 1001.36, subd. (b)(1)(A); Frahs, supra, 9 Cal.5th at p. 640.) A conditional remand for 

the trial court to conduct a mental health diversion eligibility hearing is therefore 

appropriate under the circumstances.

DISPOSITION
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We conditionally reverse defendant’s judgment and remand to the trial court for an 

eligibility determination under section 1001.36. If the trial court finds that defendant 

suffers from a mental disorder, does not pose an unreasonable risk of danger to public 

safety, and otherwise meets the six statutory criteria (as nearly as possible given the 

postconviction procedural posture of this case), then the court may grant diversion. 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 section 

1001.36, or if defendant does not successfully complete diversion, then his convictions 

and sentence shall be reinstated.

 /s/

RAYE, P. J.

We concur:

 /s/

HULL, J.

 /s/

DUARTE, J.