People v. Graham
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The Court of Appeal affirmed defendant's conviction of attempted premeditated murder with enhancements for personal use of a deadly weapon and personal infliction of great bodily injury. The court 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. Although the trial court erred in instructing the jury that a knife could be an "inherently deadly or dangerous" weapon, the error was harmless. The court also concluded that the trial court did not abuse its discretion in denying defendant’s midtrial request for one-day continuance, and defendant failed to establish the requisite substantial change of circumstances or new evidence casting a serious doubt on the prior finding of competence.
The court held that a request for "pretrial diversion" under Penal Code section 1001.36 is timely only if it is made prior to the jury's guilty verdict. In so holding, the court parted ways with People v. Curry (2021) 62 Cal.App.5th 314, but have no occasion to go as far as People v. Braden (2021) 63 Cal.App.5th 330, 333. Alternatively, the onus is placed on the defendant to raise the issue of diversion. In this case, because there was no evidence offered at trial that defendant suffered from a mental illness, and it is reasonable to assume that defense counsel was aware of a statute in effect for almost an entire year before trial began, diversion was not appropriately raised.
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