People v. Graham
| Decision Date | 27 May 2021 |
| Docket Number | B300167 |
| Citation | 64 Cal.App.5th 827,279 Cal.Rptr.3d 255 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jessalyn Kendy GRAHAM, Defendant and Appellant. |
Certified for Partial Publication.*
Carlo Andreani, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Stacy Schwartz and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
After a woman's on-again, off-again boyfriend broke off their relationship for good, she stabbed him in the back and the heart. Literally. He survived the attack, and a jury convicted her of attempted premeditated murder with enhancements for personal use of a deadly weapon and personal infliction of great bodily injury. On appeal, she argues that the trial court got the jury instructions wrong, erred in not granting a midtrial continuance, erred in not referring her for a second competency hearing, and erred in not considering her for a pretrial diversion program she never requested. The final issue presents a question of statutory interpretation—namely, whether a request for pretrial diversion under Penal Code section 1001.36 is timely if not made prior to a jury's adjudication of guilt. We conclude that the statute requires a request to be made prior to the return of a verdict and, in so holding, part ways with People v. Curry (2021) 62 Cal.App.5th 314, 276 Cal.Rptr.3d 406 ( Curry )), but have no occasion to go as far as People v. Braden (2021) 63 Cal.App.5th 330, 333, 277 Cal.Rptr.3d 563 ( Braden ) []).
We conclude that her conviction should not be disturbed, and affirm.
From 2003 through 2013, Jessalyn Kendy Graham (defendant) and Luke Hardman (Hardman) were in an on-again, off-again dating relationship. When Hardman broke it off in 2013, they remained cordial: Defendant moved from the house she shared with him to the studio unit behind the house, and they continued to have sex on a monthly basis.
In early April 2017, Hardman told defendant he had started dating someone else. Defendant did not take the news well. In mid-April 2017, defendant and Hardman got into a verbal argument that ended when defendant grabbed Hardman's phone, locked herself in his car, and proceeded to send text messages from Hardman's phone to the woman he was now dating; in those messages, defendant—while posing as Hardman—told his girlfriend that he "missed" defendant and that he and the new girlfriend needed to break up because he could not "do this anymore," and signed off with
Upset at her intrusive conduct, Hardman told defendant she had to "pack her things and move out" of the studio. He also disinvited her from his upcoming graduation ceremony for his master's degree.
On May 6, 2017, defendant had yet to move out of the studio unit and asked Hardman to come by that night to care for her two cats because she said she was feeling suicidal.
When Hardman went to defendant's studio unit to bring the cats to the main house, defendant asked him to come back 30 minutes later. Toward the end of that period, she called the nonemergency line for the local police. She told the answering officer that she was "looking to file a domestic violence report" because her ex-boyfriend had become "crazy" and "unstable" after she broke up with him, and had on a previous occasion "held [her] hostage," "choked" her, and "injured" her. She reported being "scared" because she had "no idea what he's capable of."
As Hardman returned per defendant's request, she told the police that he was "right outside [her] door" and hung up.
Because defendant had asked Hardman to return and left her front door unlocked, Hardman entered to retrieve the cats. After he did, defendant locked all three locks on the front door. She then started in on him about how it "wasn't fair" that he had asked her not to attend his graduation.
Uninterested in retreading the issue, Hardman decided to leave. Defendant prevented him. She blocked his exit by blocking her front door. He "gently" pushed her aside, but she "jumped" back into his path. He pushed her aside a second time, and she "jumped" back into his path a second time. Then Hardman shoved her "a lot harder," causing her to stumble backward but not fall, and he "bolt[ed]" for the door.
Before he could unlock the locks and leave, defendant stabbed him in the back with an Ikea kitchen knife. They got into a "scuffle," where she proceeded to stab him through the heart and slice him open along his rib cage.
Defendant then proceeded to toy with Hardman as he was bleeding profusely. When he reached for his phone to call 911, defendant took his phone from him to prevent him from calling because, she told him, he was not hurt "that badly" and his call would "get [her] in trouble." Hardman then implored her to call 911, and she mocked him by pretending to call 911 without actually doing it. As Hardman slumped to the floor from weakness, defendant put her face in his and asked, When Hardman replied, "Yes, I love you," defendant instructed him to "give [her] one last kiss" to "show [her] [he] love[s her]." Hardman obliged by kissing her on the lips. Defendant then feigned a 911 call a second time.
Hardman told defendant he could feel that his bowels were about to release, and asked her to help him to the bathroom. With her help, Hardman stumbled to the bathroom, but only sat on the toilet for a moment before collapsing onto the floor. When Hardman then begged her to "please call 911," she finally did so.
On the two back-to-back 911 calls she made and in a voluntary interview with the responding officers, defendant offered conflicting accounts of what had happened. On the 911 calls, she reported that a man who was both her "ex" and her "fiancé" "came at her" and she had to "stab him" to protect herself because she was afraid he would "hurt [her] again" like he did in mid-April when he "held [her] hostage." In the subsequent interview, she reported that Hardman had shown up that night wielding a green-handled knife and proceeded to strangle her. However, police found no green-handled knife at the scene, and defendant had no injuries except a small laceration on her right bicep that was not a recent injury. Indeed, defendant reported she was not in pain at all.
On October 30, 2018, a grand jury indicted defendant for attempted premeditated murder ( Pen. Code, §§ 187, subd. (a), 664, subd. (a) ).1 The indictment further alleged that defendant had personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and had personally inflicted great bodily injury (§ 12022.7). The People proceeded by way of grand jury because defendant had repeatedly refused to come to court for the preliminary hearing.
At her second court appearance on November 26, 2018, the trial court granted defendant's request to represent herself. The court appointed standby counsel.
After the trial court continued the matter several times at defendant's request,2 the matter proceeded to a jury trial. Midway through the People's case, defendant relinquished her right of self-representation and standby counsel took over. The court instructed the jury on the crime of attempted murder as well as the special finding of premeditation, and on the lesser included offense of attempted voluntary manslaughter due to imperfect self-defense.
The jury found defendant guilty of attempted premeditated murder and found true the weapon and great bodily injury enhancements.
After the trial court denied defendant's motion for a new trial on the basis of newly discovered evidence, the trial court sentenced defendant to prison for life with the possibility of parole plus six years (calculated as five years for the weapon enhancement plus one year for the great bodily injury enhancement).
Defendant filed this timely appeal.
Defendant argues that the trial court made two instructional errors. We independently review the jury instructions. ( People v. Mitchell (2019) 7 Cal.5th 561, 579.)
Defendant argues that the trial court had a sua sponte duty to instruct the jury on the lesser included offense of attempted voluntary manslaughter due to heat of passion.
A trial court has a duty to instruct a jury on " ‘ "all general principles of law relevant to the issues raised by the evidence," ’ " including on any " ‘ "lesser included offenses." ’ " ( People v. Whalen (2013) 56 Cal.4th 1, 68.) Attempted voluntary manslaughter due to heat of passion is a lesser included offense to attempted murder ( People v. Speight (2014) 227 Cal.App.4th 1229, 1241 ( Speight )), and rests on a finding that the defendant—both subjectively and reasonably—committed her crime "while under ‘the actual influence of a strong passion’ induced by [the victim's] provocation." ( People v. Moye (2009) 47 Cal.4th 537, 550 ; accord, People v. Nelson (2016) 1 Cal.5th 513, 539.) This occurs when the defendant's "reason ‘ "was obscured or disturbed by passion" to so great a degree that an ordinary person would "act rashly and without deliberation and reflection." ’ " ( People v. Vargas (2020) 9 Cal.5th 793, 828 ( Vargas ).)
We need not decide whether the trial court erred in not instructing the jury on the lesser included offense of attempted voluntary manslaughter due to heat of passion because its omission was harmless beyond a reasonable doubt. "Error in failing to instruct the jury on a lesser included offense is harmless when...
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