Filed 10/19/20 P. v. Oberdiear CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B287387 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA087410) v. STEVE CLARK OBERDIEAR, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Upinder Kalra, Judge. Conditionally reversed with directions. Robert Booher, 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, and Yun K. Lee and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ INTRODUCTION Steve Clark Oberdiear appeals from a judgment after a jury convicted him of stalking (Pen. Code, § 646.9, subd. (a)),1 two counts of making a criminal threat (§ 422, subd. (a)), and sending a writing with intent to extort (§ 523). Oberdiear argues that the trial court erred: (1) in allowing him to revoke his self- represented status and having standby counsel appointed to represent him on the condition that there would be no further continuances; (2) in denying his motion to reopen the case prior to the reading of the jury’s verdict; (3) in excluding evidence of alleged witness bias; and (4) in failing to give the jury a unanimity instruction on the section 523 intent to extort count. Oberdiear further argues that the prosecutor committed prejudicial misconduct during closing argument and that the case should be remanded to determine Oberdiear’s eligibility for mental health diversion under section 1001.36. Finally, Oberdiear asserts the trial court violated his right to due process by imposing assessments and a fine absent evidence of his ability to pay. Because the trial court prejudicially erred in failing to give the unanimity instruction on the section 523 count, we reverse Oberdiear’s conviction on that count. In addition, as required by the Supreme Court’s recent decision in People v. Frahs (2020) 9 Cal.5th 618, 624 (Frahs), we conditionally reverse the remaining convictions and the sentence and direct the trial court to conduct a hearing on Oberdiear’s eligibility for mental health diversion under section 1001.36. If the court does not grant diversion, or if Oberdiear does not successfully complete diversion, the trial 1 Undesignated statutory references are to the Penal Code. 2 court shall reinstate the conviction on the stalking and making criminal threat counts, and the People shall have 60 days to determine whether to retry Oberdiear on the section 523 count. If the People decide not to retry him on that count, or after the retrial of the section 523 count, the court shall resentence Oberdiear. In the event the trial court resentences Oberdiear, ...
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