Opinion
A156853
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL RAY WALLS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco Super. Ct. No. SCN229836)
Defendant Gabriel Walls was found guilty of robbery and placed on probation. He seeks conditional reversal of his conviction and remand to allow the trial court to consider whether he should be granted pretrial diversion under Penal Code section 1001.36. We conclude defendant forfeited his right to request pretrial diversion by failing to seek it below. His alternative argument that defense counsel provided ineffective assistance by not pursuing pretrial diversion also fails, as the record does not foreclose the possibility that counsel had a rational reason for not seeking diversion. We thus affirm.
BACKGROUND
An information filed on September 25, 2018 charged defendant with robbery (Pen. Code, § 211) and receiving stolen property (§ 496, subd. (a)). The charges arose out of an incident that occurred August 25, 2018, when defendant ran up to a woman who was walking on a sidewalk while talking on her cell phone and forcibly took the cell phone from her hand and walked off.
All undesignated statutory references are to the Penal Code.
In January 2019, defendant was tried before a jury, which found him guilty of robbery.
On January 28, 2019, the trial court sentenced defendant to three years in state prison, suspended execution of the sentence, and placed him on three years' probation. The terms of defendant's probation were subsequently modified to include one year in county jail, which could be served in a residential treatment program.
Defendant filed a timely notice of appeal
DISCUSSION
Effective June 27, 2018, section 1001.36 created a pretrial diversion program for a defendant suffering from a "mental disorder [that] was a significant factor in the commission of the charged offense" (§ 1001.36, subd. (b)(1)(B)), provided a series of requirements are satisfied. (Id., subd. (b)(1)(A)-(b)(1)(F).) Where defendant qualifies for diversion, prosecution of the charged offense is postponed while defendant undergoes mental health treatment. (Id., subd. (c).) If a defendant performs "satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings at the time of the initial diversion." (Id., subd. (e).) Defendant urges us to remand this matter so the trial court can determine his eligibility for pretrial diversion under section 1001.36. He asserts two arguments in support of this request: (1) section 1001.36 applies retroactively, and (2) he received ineffective assistance of counsel. Neither argument has merit.
As to the retroactivity of section 1001.36, there is a split of authority. In People v. Frahs (2018) 27 Cal.App.5th 784, for example, the Fourth District held that the provisions of section 1001.36 are retroactive to all cases in which judgment is not yet final. (Frahs at p. 791.) In People v. Craine (2019) 35 Cal.App.5th 744, on the other hand, the Fifth District held that the provisions do "not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing." (Id. at p. 760.) Defendant argues that we should follow Frahs because "[i]ts holding was consistent with established case law giving retroactive effect to changes to penal statutes which lessen the punishment for a crime or have some other ameliorative effect." We need not weigh in on the issue, however, as the entire retroactivity argument is misplaced.
The Supreme Court has granted review in these and other cases deciding the issue. (See, e.g., People v. Frahs, review granted Dec. 27, 2018 S252220; People v. Craine, review granted Sept. 11, 2019, S256671; People v. Burns (2019) 38 Cal.App.5th 776, review granted Oct. 30, 2019, S257738; People v. Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049.)
We note that our colleagues in Division Five have sided with People v. Frahs, supra, 27 Cal.App.5th 784. (People v. Hughes (2019) 39 Cal.App.5th 886, 896, review granted Nov. 26, 2019, S258541.)
As noted, defendant committed the robbery on August 25, 2018, the information was filed one month later, and he was tried, convicted, and sentenced in January 2019. This all occurred after June 27, 2018, the effective date of section 1001.36. Thus, the option of seeking pretrial diversion was available to defendant from the outset of his case. For reasons not apparent from the record, however, he failed to avail himself of it.
Recognizing the flaw in his retroactivity argument, defendant urges us to nevertheless remand his case, arguing that his failure to seek pretrial diversion below should not preclude remand to allow him to now seek diversion: "This Court may review an issue on its own regardless of the forfeiture doctrine. Application of the forfeiture rule is not automatic. [Citations.] Furthermore, this Court should nevertheless address the issue on the merits to avoid a claim of ineffective assistance of counsel. [Citation.] Not applying the waiver [or] forfeiture doctrine to [defendant's] section 1001.36 claim is especially appropriate in the instant case because [defendant's] eligibility appears clear and will avoid a claim of ineffective assistance of counsel." To the contrary, the doctrine of forfeiture is wholly applicable here.
As a general rule, "a party may forfeit [the] right to present a claim of error to the appellate court if he did not do enough to 'prevent[]' or 'correct[]' the claimed error in the trial court . . . ." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) The forfeiture doctrine is not absolute, however, as we are "generally not prohibited from reaching a question that has not been preserved for review by a party." (Ibid.) But defendant does not ask us to reach a question that he failed to preserve for review or, for that matter, even ask us to correct a claimed error made by the trial court. Rather, he seeks remand to allow him to pursue a section 1001.36 pretrial diversion program that he did not pursue below, despite that the program was in place when he was charged, convicted, and sentenced. Under these circumstances, we decline to overlook the forfeiture rule. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 375-376 [where defendant failed to invite the trial court to exercise its discretion, he forfeited his right to raise the issue on appeal].)
This brings us to defendant's alternative argument, that he received ineffective assistance of counsel due to his counsel's apparent failure to seek pretrial diversion. According to defendant, "Diversion under section 1001.36 does not require the consent of the prosecution. There could have been no tactical reason for the trial defense counsel to not have requested pretrial diversion. [Defendant's] eligibility appears clear. [His] successful completion of pretrial diversion would have resulted in a disposition without a conviction. [Defendant] was deprived of effective assistance of counsel to the extent he waived or forfeited his section 1001.36 claim." Defendant has not established he received ineffective assistance of counsel.
It is well established that to prevail on a claim for ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) but for counsel's errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) It is equally well established that "[i]t is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [habeas corpus is the more appropriate procedure to address an ineffective assistance of counsel claim because it may include evidence of an attorney's reasons for making the complained-of decision, which is outside the appellate record].) These rules preclude us from finding ineffective assistance of counsel here.
The record is silent as to why defendant did not pursue pretrial diversion before the trial court. While defendant claims "[t]here could have been no tactical reason for the trial defense counsel to not have requested pretrial diversion" and that his "eligibility appears clear," the record does not foreclose the possibility that trial counsel did not seek pretrial diversion for a sound reason. For example, defense counsel may have consulted with defendant regarding the possibility of pretrial diversion, only to have defendant reject the idea because he did not believe he needed mental health treatment. Defendant may have opted to take his chance with a jury trial rather than face upwards of two years of mental health treatment. (See § 1001.36, subd. (c)(3).) Defense counsel may have obtained information regarding defendant's mental health history and determined he did not satisfy the requirements for diversion. These possibilities compel us to deny his ineffective assistance claim on direct appeal.
Finally, defendant urges us to "keep in mind the policy goals for pretrial diversion expressed by the Legislature in section 1001.35," contending, "The Legislature wanted to divert mentally ill individuals away from the criminal justice system and provide help tailored to the defendant's particular mental health needs. [Citations.] These goals should guide this Court in determining whether to exercise its discretion to resolve on the merits [defendant's] pretrial diversion claim." Defendant's policy argument is unavailing for multiple reasons. First, as already noted, defendant asks us to "resolve" his claim "on the merits" when there is no claim of error to resolve on the merits. Second, the goal of diverting mentally ill individuals away from the criminal justice system has already been defeated here by defendant proceeding to trial on the charges against him. And third, defendant is not without recourse.
DISPOSITION
The judgment of conviction is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.