Filed 9/25/20 P. v. Meyers CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A157866
v.
EMIL ZACHARY MEYERS, (Napa County Super. Ct.
No. CR185347)
Defendant and Appellant.
In February 2018, a jury convicted appellant Emil Zachary Meyers
(Appellant) of assault with a deadly weapon (Pen. Code, § 245, sub. (a)(1))1
and corporal injury to a dating partner (§ 273.5, subd. (a)), and found true
great bodily injury enhancements (§ 12022.7, subd. (e)). The charges were
based on an October 2017 incident during which Appellant threw a beer
bottle at his girlfriend and hit her in the head. Appellant claimed he threw
the bottle at the ground and the victim was hit by accident.
In April 2018, defense counsel declared doubt as to Appellant’s
competency, and Appellant was ordered committed to Napa State Hospital in
July. In March 2019, criminal proceedings were reinstated; in June, the trial
court sentenced Appellant to seven years in prison.
1 All undesignated statutory references are to the Penal Code.
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On appeal, Appellant contends this matter should be remanded for a
hearing to determine his eligibility for mental health diversion under section
1001.36. Enacted in June 2018, section 1001.36 (along with section 1001.35)
“created a pretrial diversion program for certain defendants with mental
health disorders. (Stats. 2018, ch. 34, § 24.)” (People v. Frahs (2020) 9
Cal.5th 618, 624 (Frahs).) Section 1001.36 sets forth six findings required
before a court may grant pretrial diversion: (1) the defendant suffers from a
mental disorder recognized in the Diagnostic and Statistical Manual of
Mental Disorders; (2) the mental disorder “was a significant factor in the
commission of the charged offense;” (3) “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 speedy
trial rights; (5) the defendant agrees to comply with treatment; and (6) “the
defendant will not pose an unreasonable risk of danger to public safety . . . if
treated in the community.” (§ 1001.36, subd. (b)(l)(A)-(F).)
If the defendant “perform[s] 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.” (§ 1001.36, subd. (e).) In Frahs, the California Supreme Court
held section 1001.36 is retroactive to cases in which the judgment is not yet
final. (Frahs, supra, 9 Cal. 5th at pp. 624, 630–631.)
Appellant points out he has been diagnosed with bipolar and substance
abuse disorders and was found not competent after trial. Appellant
effectively concedes defense counsel below forfeited his right to seek diversion
under section 1001.36 by failing to file a motion for diversion at or before his
sentencing hearing in June 2019. But Appellant argues this court should
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nevertheless remand for consideration of diversion because his counsel’s
failure to move for diversion was ineffective assistance of counsel.
To establish ineffective assistance of counsel, “the defendant must first
show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice, i.e., a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceeding would
have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) “It is
[Appellant’s] burden to demonstrate the inadequacy of trial counsel.” (People
v. Lucas (1995) 12 Cal.4th 415, 436.) “It 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.” (Mai, at p. 1009.)
Appellant argues “a reasonably competent attorney would have
requested a hearing to determine [A]ppellant’s eligibility for mental health
diversion” because there was evidence Appellant suffered from a qualifying
condition and because, had Appellant been found eligible for diversion, “he
would have had the opportunity to avoid being sentenced to prison for seven
years.” Appellant also points out, “At sentencing, defense counsel requested
probation be granted so that [A]ppellant ‘could be set up in our mental health
court system,’ noting that ‘mental health treatment is far more available
than it has ever been before.’ ” Appellant relies on the proposition that “a
defense attorney who fails to adequately understand the available sentencing
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alternatives, promote their proper application, or pursue the most
advantageous disposition for his client may be found incompetent.” (People v.
Scott (1994) 9 Cal.4th 331, 351.)
Nevertheless, as respondent argues, “the record is silent as to why
defense counsel did not pursue pretrial diversion before the trial court.” We
agree with Appellant that the record shows counsel believed Appellant would
benefit from mental health treatment. But the record does not show there
“could be no satisfactory explanation” for counsel not to seek diversion under
section 1001.36. (Mai, supra, 57 Cal.4th at p. 1009.) It is certainly possible
(and may even be probable) that defense counsel was unaware of the recent
enactment and failed to discuss the option with Appellant. But it is also
possible that counsel conferred with Appellant and that Appellant hoped to
receive probation and did not want to pursue diversion. (See Strickland v.
Washington (1984) 466 U.S. 668, 691 [“Counsel’s actions are usually based,
quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant.”]; cf. People v. Cotton (1991) 230
Cal.App.3d 1072, 1085 [declarations supported habeas corpus petition
contending trial counsel was ineffective for failing to assist in obtaining
admission to a residential drug treatment program].)
Appellant has not shown ineffective assistance of counsel.
DISPOSITION
The trial court’s judgment is affirmed.
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SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
(A157866)
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