People v. Godoy CA2/5

Filed 12/22/20 P. v. Godoy CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B297521

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BA454904)

v.

SAUL GODOY,

Defendant and
Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, William N. Sterling and Ray G. Jurado,
Judges. Affirmed as modified.
Emma Gunderson and Michael Tetreault, under
appointments by the Court of Appeal, for Defendant and
Appellant.
 Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, Heidi Salerno,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________

The jury found defendant and appellant Saul Godoy
guilty of second degree robbery (Pen. Code, § 211)1 and
attempted carjacking (Pen. Code, §§ 664, 215, subd. (a)). In
a separate proceeding, the trial court found true the
allegations that Godoy had two prior strikes under the three
strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), a
prior serious felony conviction under section 667, subdivision
(a)(1), and two prison priors under section 667.5, subdivision
(b). The court sentenced Godoy to ten years in prison, plus a
five-year enhancement for the prior serious felony and a one-
year enhancement for a prison prior under section 667.5,
subdivision (b).2
Godoy contends that (1) the trial court erroneously
denied his motion to represent himself without counsel
under Faretta v. California (1975) 422 U.S. 806 (Faretta); (2)

1 All further statutory references are to the Penal Code
unless otherwise stated.

2 The trial court struck one of Godoy’s strikes, and
stayed one prison prior and the sentence for count two under
section 654.

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a conditional remand is warranted for the trial court to
determine his eligibility for a mental health diversion
program under section 1001.36; and (3) this court should
strike his one-year prior felony conviction enhancement
under section 667.5, subdivision (b).
We order that the abstract of judgment be modified to
strike Godoy’s one-year prior prison term sentencing
enhancement. As modified, the trial court’s judgment is
affirmed.

FACTS

The offense conduct

Around 7:30 p.m. on February 23, 2017, as Carmen R.
returned home and was getting ready to lock her car, Godoy
came up to her and tried to grab her keys out of her hand. A
physical struggle ensued, and Godoy took a set of keys from
Carmen, but the set did not include the key to her car. He
entered the driver’s side of the car. When Carmen saw
Godoy in her car, trying to start the car with the wrong key,
she pushed the car door closed to trap him inside “so that
somebody might come and get him.” Some neighbors came
to assist, and they dragged Godoy out of the car. He ran
across the street. Carmen called the police.
A police officer located Godoy in a transitional living
residence across the street from where the incident took
place. Godoy was detained by law enforcement, and after

3
Carmen identified him as the person who took her keys, he
was arrested and booked. The arresting officer did not drug
test Godoy, but described Godoy’s demeanor as consistent
with someone on methamphetamine.

The criminal case – pretrial proceedings

Godoy was charged with second degree robbery (§ 211
[count 1]) and attempted carjacking (§§ 664, 215, subd. (a)
[count 2]). Additional allegations stated that Godoy had
prior serious felony convictions as defined by section 667,
subdivision (a)(1), and section 667.5, subdivision (b).
At the arraignment hearing on April 24, 2017, the trial
court granted Godoy’s first request to represent himself
under Faretta. The court appointed stand-by counsel in case
questions about Godoy’s competency arose. Godoy later filed
a motion for discovery and a motion to dismiss.
On August 30, 2017, after Godoy announced he was
ready for trial, the prosecution sought a competency
evaluation, based on information about Godoy’s past mental
health treatment and his history of using psychiatric
medication. After hearing testimony from the investigator,
the court (Judge C.H. Rehm, Jr.) declared a doubt as to
Godoy’s competency and ordered a competency evaluation,
appointing Dr. Jack Rothberg as the evaluating psychiatrist.
Dr. Rothberg conducted a psychiatric evaluation on
September 13, 2017, under Evidence Code section 730 and
Penal Code section 1368, to assess Godoy’s competency to

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stand trial and his ability to represent himself. Dr. Rothberg
concluded that Godoy was not competent to represent
himself; Dr. Rothberg also had serious doubts about Godoy’s
competency to stand trial even if represented. According to
Godoy, he developed post-traumatic stress disorder (PTSD)
when he was 30 years old, attributing it to his time in the
military. Godoy reported that he did not receive treatment
for PTSD, but he had been treated with four different
psychiatric drugs in the past, and in jail he was receiving
three psychiatric drugs, and indicated he had been hearing
voices and was paranoid. Godoy admitted to two different
psychiatric hospitalizations, one at Stockton State Hospital
and the other at Patton State Hospital; he also admitted that
when he was hospitalized at Patton State in 2002, he was
found incompetent. Godoy also admitted to using cocaine,
methamphetamine, and marijuana. Dr. Rothberg’s report
expressed skepticism about Godoy’s claims that he went to
Loyola Law School, passed the bar exam, and worked for
four years at a law firm. Godoy claimed he was a criminal
defense attorney, and that he was disbarred after his
felonies. Dr. Rothberg’s summary of Godoy’s mental status
exam stated that while Godoy was pleasant and superficially
cooperative, “[h]e admit[ted] to auditory hallucinations and
described numerous ideas which appeared to be grandiose
delusions. . . . His fund of knowledge, ability to abstract and
general intellectual functioning seem to be impaired, as does
his judgment.” In the final portion of the report, Dr.
Rothberg summarized, “Taking into consideration the fact

5
that a good deal of what [Godoy] told me is delusional, and
even if much of what he said is accurate, it is logically
incoherent and makes little sense. He acknowledges that he
has been found incompetent in the past and, moreover,
admits that he hears voices and has had delusions. It is
quite apparent that Mr. Godoy is not competent to represent
himself. Moreover, his lack of judgment due to delusional
thinking raises some serious doubt of whether he is even
competent if represented.”
On October 6, 2017, at the request of Godoy’s attorney
(Madeline Chang), the court (Judge Rehm) appointed Dr.
Risa Grand to conduct a second evaluation. Dr. Grand’s
report gave her conclusion that Godoy met the diagnostic
criteria for PTSD, but that he was competent to stand trial.
Dr. Grand also concluded that Godoy was rationally able to
assist in his own defense so long as he continued to take
psychotropic medications. She gave no opinion on whether
Godoy was competent to represent himself.3 Godoy reported
graduating college and Loyola Law School, and said he
practiced criminal law for two to three years until he was
convicted of a felony and disbarred. Regarding his

3 The trial court’s letter of appointment for Dr. Grand
included a request for evaluation of both Godoy’s competency
to stand trial with the assistance of counsel and his
competency to present a defense without the benefit of
counsel; however, Dr. Grand’s report did not identify the
latter issue among those for evaluation. The record on
appeal contains no information as to why Dr. Grand did not
address the issue of self-representation.

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psychiatric history, Godoy reported he was treated at Patton
State Hospital in 2002 for three months after being found
incompetent to stand trial. He received treatment at the
Westwood VA (U.S. Department of Veterans Affairs) for
psychiatric illness, and had previously and was currently
taking prescribed psychiatric medications. He denied any
substance abuse history, but several of his prior convictions
involved possession or sale of controlled substances. Dr.
Grand reported that during Godoy’s mental status exam, his
speech was clear and he had appropriate eye contact. “He
demonstrated good insight into the fact that he needs
medication and highlighted that he suffers from [PTSD].”
While he may have had more serious symptoms from his
PTSD in the past, he reported his current psychiatric
medications have alleviated his symptoms [“He reports good
benefit of his symptoms . . . .”]. Godoy understood the
charges against him and the roles of courtroom personnel.
Godoy “indicated that he understands each of the plea
options available and would consider a plea bargain if it
would involve ongoing treatment at the VA and possible
short sentence of two years or less.” Dr. Grand found Godoy
to be “psychiatrically quite stable with his psychotropic
medication” and encouraged him to remain medication
compliant. She expressed concern that he might destabilize
if he discontinued his medication.
On December 12, 2017, the court held a competency
hearing. Godoy appeared with counsel. The parties
submitted on the reports of Dr. Grand and Dr. Rothberg.

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The court (Judge Ray G. Jurado) found appellant mentally
competent to stand trial under section 1368.
On March 5, 2018, appellant submitted a new Faretta
waiver form and requested to represent himself. After
reviewing Godoy’s waiver form, the court (Judge Jurado)
noted that Dr. Rothberg had found Godoy was not competent
to represent himself, and that Dr. Grand found him
competent to stand trial, but did not give an opinion on
Godoy’s competence to represent himself. The court
indicated that it was denying Godoy’s request to represent
himself, finding Godoy was not competent to represent
himself, based on Dr. Rothberg’s opinion, and on the ground
that the request was untimely, coming only 20 days before
the scheduled jury trial. Defense counsel offered that Godoy
was willing to submit to another examination on his
competency for self-representation, but the court was not
willing to put the case over for yet another doctor’s opinion
on competency. On the issue of timeliness, defense counsel
stated that if the court permitted Godoy to represent
himself, he would not need additional time, because he was
already familiar with the case. The court repeated that it
had found Godoy not competent to represent himself, and
moved on to the possibility of a plea offer.
Ultimately, after a series of continuances, some
stipulated and others requested by the defense, the trial
commenced on September 12, 2018.

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 Conviction and sentencing

After a three-day jury trial at which Godoy was
represented by counsel, a jury found Godoy guilty of second
degree robbery (count 1) and attempted carjacking (count 2),
on September 18, 2018. In a bifurcated proceeding, Godoy
admitted to two prior strikes under the three strikes law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), a prior
serious felony conviction under section 667, subdivision
(a)(1), and two prison priors under section 667.5, subdivision
(b).
On March 15, 2019, Godoy was sentenced to 16 years
in state prison. The court imposed the upper term of 5 years
for count 1, doubled to 10 years as a second strike.4 The
court added a five-year sentencing enhancement under
section 667, subdivision (a)(1) and a one-year sentencing
enhancement under section 667.5, subdivision (b). For count
2, the court imposed the upper term of 54 months, plus an
additional 54 months, for a total of 108 months, stayed
pursuant to section 654. The court also struck the second
prison prior enhancement (§ 667.5, subd. (b)).

4 Although Godoy had previously admitted to two
strikes, at sentencing, the trial court struck one of the
strikes.

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 DISCUSSION

Denial of Godoy’s March 2018 Faretta Motion

Godoy contends that the trial court erroneously denied
his Faretta motion. We find no error, because there was
substantial evidence to support the court’s determination
that based on Godoy’s mental illness, he was incompetent to
represent himself.5

Relevant law

Pursuant to the Sixth and Fourteenth Amendments to
the United States Constitution, a criminal defendant has a
“‘constitutional right to proceed without counsel when’ [the]
defendant ‘voluntarily and intelligently elects to do so.’
[Citation.]” (Indiana v. Edwards (2008) 554 U.S. 164, 170
(Edwards); see also Faretta, supra, 422 U.S. at pp. 818–832.)
The “autonomy and dignity interests” that underlie this
right are not defeated by “the fact or likelihood that an
unskilled, self-represented defendant will perform poorly in
conducting his or her own defense . . . .” (People v. Mickel
(2016) 2 Cal.5th 181, 206 (Mickel).)

5 Godoy’s opening brief explains why his Faretta
motion was timely. We need not consider the question of
timeliness because we find the trial court’s denial was
supported by substantial evidence that Godoy was not
competent to represent himself at trial.

10
 A self-represented defendant need not meet the
standards of an attorney or even be capable of conducting an
“effective defense.” (Mickel, supra, 2 Cal.5th at p. 206.)
Indeed, a defendant’s right to control his defense includes
the right to decide to present no defense, or a defense that
has little or no chance of success. (Id. at p. 209.)
“[R]ecognizing a criminal defendant’s right to self-
representation may result ‘“in detriment to the defendant, if
not outright unfairness.”’ [Citation.] But that is a cost that
we allow defendants the choice of paying, if they can do so
knowingly and voluntarily.” (Id. at p. 206.)
The right of self-representation, however, is not
absolute. (Mickel, supra, 2 Cal.5th at p. 206; Edwards,
supra, 554 U.S. at p. 171.) Most pertinent here, state courts
have discretion to deny self-representation to individuals
who are sometimes called “gray-area defendants”—those
who fall in the “gray area” between being competent to stand
trial if represented by counsel and yet “suffer from severe
mental illness to the point where they are not competent to
conduct trial proceedings by themselves.” (Edwards, supra,
at pp. 172, 174, 178; see also People v. Johnson (2012) 53
Cal.4th 519, 528 (Johnson) [confirming trial courts may deny
self-representation where Edwards permits such a denial].)
Competence to represent oneself at trial is defined as
“the ability ‘to carry out the basic tasks needed to present
[one’s] own defense without the help of counsel.’ [Citation.]”
(Johnson, supra, 53 Cal.4th at p. 530.) Both the United
States Supreme Court and our Supreme Court have declined

11
to adopt a more specific competence standard for a defendant
acting as his or her own attorney. (Ibid.) The high court
has, however, noted the basic tasks needed to present a
defense may include “organization of defense, making
motions, arguing points of law, participating in voir dire,
questioning witnesses, and addressing the court and jury.”
(Edwards, supra, 554 U.S. at p. 176, italics omitted.) “In
other words, California courts have discretion to deny self-
representation to so-called gray-area defendants—those who
are mentally competent to stand trial if represented by
counsel but not mentally competent to conduct the trial
themselves—‘in those cases where Edwards permits such
denial.’ (Johnson, supra, 53 Cal.4th at p. 528; see Edwards,
supra, 554 U.S. at pp. 172–174 [discussing gray-area
defendants].) Nevertheless, our Supreme Court has
cautioned that ‘[s]elf-representation by defendants who wish
it and validly waive counsel remains the norm and may not
be denied lightly.’ (Johnson, supra, at p. 531.)” (People v.
Gardner (2014) 231 Cal.App.4th 945, 956 (Gardner).)

Standard of review

“‘“Erroneous denial of a Faretta motion is reversible
per se. [Citation.]” [Citation.]’ . . . [Citation.]” (People v.
Becerra (2016) 63 Cal.4th 511, 520.) The decision to deny a
defendant’s Faretta motion must be based on substantial
evidence of defendant’s competence; keeping in mind that
determinations regarding self-representation are left largely

12
to the trial court’s discretion. (Johnson, supra, 53 Cal.4th at
pp. 531–532 [finding no abuse of discretion where trial
court’s decision to revoke self-representation was based on
substantial evidence]; Gardner, supra, 231 Cal.App.4th at
pp. 959–960 [no abuse of discretion when there is substantial
evidence to support trial court’s denial of defendant’s Faretta
motion].)

Analysis

The trial court did not abuse its discretion when it
denied Godoy’s request for self-representation after the court
had already inquired into Godoy’s competence and found him
competent to stand trial. The court’s decision was supported
by substantial evidence because the court relied upon the
expert opinion of Dr. Rothberg that Godoy lacked the
necessary competence to represent himself at trial. On the
question of Godoy’s competency to stand trial, Dr. Rothberg
was more equivocal, stating that there were “serious doubts”
about Godoy’s competency, but stopping short of concluding
that Godoy was incompetent to stand trial.
Godoy questions the evidentiary value of Dr.
Rothberg’s opinion, arguing that Dr. Rothberg “failed to
rationalize [the] conclusory opinion” that Godoy was not
competent to represent himself. Godoy argues that because
Dr. Rothberg acknowledged Godoy’s ability to understand
the nature of the proceedings against him, any concerns Dr.
Rothberg had regarding his ability to conduct his own

13
defense were irrelevant to the question of his competency to
invoke his right of self-representation.
Godoy’s argument rests on a fundamental
disagreement with Dr. Rothberg’s conclusion that he is
incompetent to represent himself, based on evidence he
suffers from delusional thinking and his own admission that
he hears voices, has had delusions, and has previously been
found incompetent. But Godoy’s disagreement with Dr.
Rothberg’s medical expert opinion does not diminish the
evidentiary value of that opinion, nor does it persuade us
that the trial court erroneously relied on Dr. Rothberg’s
opinion as the basis for denying Godoy’s Faretta request in
March 2018. Dr. Rothberg reported that Godoy was aware
that the charges against him were serious and that he was
facing a third strike. He understood the roles of different
people involved with the trial, such as the judge, the jury,
the prosecutor, and defense counsel. While Godoy presented
as cooperative and pleasant during Dr. Rothberg’s mental
status exam, the exam also revealed that Godoy’s general
intellectual functioning and ability to abstract was impaired.
In addition, Godoy admitted to auditory hallucinations and
many of his ideas appeared to be grandiose delusions. Based
on this evidence, Dr. Rothberg reached the conclusion that
Godoy was not competent to represent himself at trial.
Godoy tries to distinguish Gardner, supra, 231
Cal.App.4th at page 960, arguing that the record here lacked
evidence that he suffered from a severe mental illness that
would impair his ability to participate in the trial process

14
and communicate with a jury. The appellate court in
Gardner affirmed the denial of defendant’s Faretta motion
based on a doctor’s determination that while defendant
demonstrated an understanding of legal terminology and the
evidence against him, he lacked competence to represent
himself at trial because his expressive language disorder
prevented him from communicating coherently with the
court or a jury. (Id. at p. 954.) While the expert opinion in
Gardner focused on defendant’s language deficits, it also
noted that defendant lacked “‘the higher cognitive abilities
necessary to litigate his case in court.’” (Id. at p. 960.) Dr.
Rothberg’s expert opinion here was that even though Godoy
presented as superficially pleasant and cooperative, deficits
in his judgment, knowledge, ability to abstract, and general
intellectual functioning were sufficiently significant to
render him incompetent to represent himself. Such an
opinion is sufficient to support denying Godoy’s Faretta
motion.
Godoy also compares the facts of the current case to
those at issue in People v. Robinson (1997) 56 Cal.App.4th
363, 367–368, where the trial court erroneously denied self-
representation based on a belief that the defendant’s
minimal education and work experience were inadequate for
him to represent himself on serious charges. But Godoy
acknowledges the Robinson case did not involve any question
regarding the defendant’s mental competence. In addition,
Robinson predated Edwards by more than 10 years,
meaning that the U.S. Supreme Court had not yet even

15
recognized the state courts’ discretion to deny a Faretta
request brought by a defendant affected by mental illness,
even where the defendant had been found competent to
stand trial. (Edwards, supra, 554 U.S. at pp. 177–179.)
In his reply brief, Godoy disputes the People’s assertion
that he fell within the “gray area” discussed in Edwards,
where he was competent to stand trial but not competent to
represent himself. He asks this court to accept his
characterization of his mental health as having improved as
he resumed his medication regimen between Dr. Rothberg’s
examination in September 2017 and Dr. Grand’s
examination in December 2017, arguing that by the time he
made his Faretta request in March 2018, he was no longer
exhibiting any of the “common symptoms of severe mental
illness” described in Edwards, supra, 554 U.S. at page 176.
There are several problems with Godoy’s argument on
this point. First, the evidence contradicts Godoy’s assertion
that his mental health had improved because he started
taking medications. At the time of Dr. Rothberg’s evaluation
in September 2017, Godoy was already taking the same
three medications that Dr. Grand noted in her report:
Trazodone, Prozac, and Risperdal. Second, Dr. Grand’s
December 2017 report never gave an opinion on Godoy’s
competency to represent himself. Third, the record lacks any
contemporaneous evidence of any changes in Godoy’s mental
status or competency between Dr. Rothberg’s September
2017 report, and March 2018, when Godoy made his Faretta
request. Notably, Godoy does not contend that the court

16
erred in declining his offer to submit to a new psychiatric
evaluation.
On this record, we conclude that the court’s reliance on
Dr. Rothberg’s September 2017 opinion to find Godoy lacked
competence to represent himself at trial was not an abuse of
discretion. Godoy’s argument about his improved mental
status is speculative at best, and nothing in the record here
undermines the trial court’s reliance on Dr. Rothberg’s
medical opinion that Godoy’s mental illness precludes self-
representation.

Mental Health Diversion

Godoy seeks a conditional reversal, arguing the trial
court abused its discretion by failing to consider whether he
was eligible for a pre-trial mental health diversion program.
Godoy argues the trial court had a sua sponte duty to
consider his eligibility for mental health diversion under
section 1001.36, in the absence of any request from the
prosecution or the defense. The People respond that Godoy
forfeited any claim of error by failing to request diversion or
object to his sentence, and that Godoy has not shown an
abuse of discretion. Godoy alternatively contends that his
counsel’s failure to request diversion constitutes ineffective
assistance of counsel.

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Relevant law

Section 1001.36, which initially took effect June 27,
2018, “gives trial courts the discretion to grant pretrial
diversion for individuals suffering from certain mental
health disorders. (§ 1001.36, subd. (a).)” (People v. Frahs
(2020) 9 Cal.5th 618, 626 (Frahs); Stats. 2018, ch. 34, § 24.)6
“If the defendant makes a prima facie showing that he
or she meets all of the threshold eligibility requirements and
the defendant and the offense are suitable for diversion, and
the trial court is satisfied that the recommended program of
mental health treatment will meet the specialized mental
health treatment needs of the defendant, then the court may
grant pretrial diversion. (§ 1001.36, subds. (a), (b)(3) &
(c)(1).) The maximum period of diversion is two years. (Id.,
subd. (c)(3).) If the defendant is subsequently charged with
an additional crime, or otherwise performs unsatisfactorily
in the assigned program, then the court may reinstate
criminal proceedings. (Id., subd. (d).) ‘If the defendant has
performed 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’ and ‘the arrest upon which
the diversion was based shall be deemed never to have

6 Effective January 1, 2019, the Legislature amended
section 1001.36 to specify that defendants charged with
certain crimes, such as murder and rape, are ineligible for
diversion. (Frahs, supra, 9 Cal.5th at p. 627.)

18
occurred.’ (Id., subd. (e).)” (Frahs, supra, 9 Cal.5th at
p. 627.)
A trial court has discretion to grant pretrial diversion if
it finds all of the following: (1) the defendant has been
diagnosed with a qualifying mental disorder as identified in
the most recent edition of the Diagnostic and Statistical
Manual of Mental Disorders, including, but not limited to,
bipolar disorder, schizophrenia, schizoaffective disorder, or
PTSD, but excluding antisocial personality disorder,
borderline personality disorder, and pedophilia; (2) the
disorder was a significant factor in the commission of the
charged offense; (3) in the opinion of a qualified mental
health expert, defendant’s symptoms of the mental disorder
motivating the criminal behavior would respond to mental
health treatment; (4) subject to certain exceptions related to
incompetence, the defendant consents to diversion and
waives his or her speedy trial rights; (5) the defendant
agrees to comply with treatment as a condition of diversion;
and (6) the court is satisfied that the defendant will not pose
an unreasonable risk of danger to public safety if treated in
the community, as defined in section 1170.18. (§ 1001.36,
subd. (b); Frahs, supra, 9 Cal.5th at pp. 626–627.)

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Analysis

A. Facts and procedure

Godoy’s trial started on September 12, 2018, more than
two months after section 1001.36 took effect on June 27,
2018.7 Nevertheless, there is no evidence in the record that
Godoy or his counsel ever sought diversion under the newly-
enacted statute, before or during his trial or sentencing.
Other than the evidence pertaining to Godoy’s competency to
stand trial and to represent himself, the record contains very
limited evidence about Godoy’s mental health at the time of
the offense.
Carmen’s son, Jeffrey, testified that on the same day
his mother had her altercation with Godoy, Jeffrey and his
grandmother had earlier observed Godoy on the sidewalk

7 In Frahs, the California Supreme Court held that
section 1001.36 applies retroactively to cases in which the
judgment is not yet final. (Frahs, supra, 9 Cal.5th at
pp. 630–637 & fn. 2.) Specifically, in cases where section
1001.36 was enacted after the defendant’s conviction, a
conditional limited remand for a diversion eligibility hearing
is warranted when the record “affirmatively discloses that
the defendant appears to meet at least the first threshold
eligibility requirement for mental health diversion—the
defendant suffers from a qualifying mental disorder
[citation].” (Frahs, at p. 640.) Because section 1001.36 was
enacted before Godoy’s trial date, the question of
retroactivity does not arise in this appeal.

20
and the parkway in front of the transitional living home,
acting erratically and making angry gestures for more than
20 minutes.
Gary Willis, an assistant manager at Godoy’s
transitional living facility, testified that Godoy’s behavior
started to change a month or so before the offense. Willis
was a mental health patient, and he observed that Godoy
was not acting like his normal upbeat self. Willis suspected
Godoy had stopped taking his medications and had asked
Godoy about that. Godoy had stopped interacting with the
other residents and was exhibiting hoarding behavior,
keeping trash and broken electronics in his room. Out of
concern for Godoy’s safety, Willis and the owner of the
transitional living facility removed the door to Godoy’s
bedroom.
Rocio Ballesteros-Molina, Godoy’s parole officer,
testified that outpatient mental health counseling was a
condition of Godoy’s parole. She made a routine visit and
saw Godoy around 6:30 p.m. on the day the offense took
place. While he was normally calm during her visits, on this
occasion he seemed agitated, and did not know why she was
there to see him. She asked him to drug test; he was
unwilling to do so, but he agreed to come to her office the
next day to drug test.
Outside the presence of the jury, the court heard
limited testimony from the county psychiatrist who was
treating Godoy while he was in jail before and during trial.
She testified she had diagnosed Godoy with adjustment

21
disorder with depression and major depressive disorder with
psychotic features. Because her testimony was not relevant
to the element of specific intent, the court did not permit her
testimony before the jury.

B. Forfeiture

Godoy seeks remand to allow him to pursue a section
1001.36 pretrial diversion program that he did not pursue
below. Despite the fact that the statute authorizing the
program was enacted before he was tried, convicted, and
sentenced, Godoy did not seek to develop a record to support
a section 1001.36 motion, focusing instead on his mental
health as it related to his competency to stand trial and
represent himself. He therefore forfeited the issue on
appeal. (People v. Carmony (2004) 33 Cal.4th 367, 375–376
(Carmony) [failure to seek dismissal pursuant to section
1385 forfeits right to raise issue for first time on appeal].)

C. Statutory text does not impose a sua sponte duty on
the trial court

Seeking to overcome forfeiture, Godoy contends that
when there is evidence to support a finding of eligibility for
mental health diversion, the court has a sua sponte duty to
determine whether the defendant is eligible, even without a
request by the defendant. According to Godoy, because the
trial court failed to hold a hearing despite evidence that he

22
was eligible for mental health diversion, he is entitled to a
conditional reversal and remand to allow the court to carry
out its statutory duty. Godoy argues that the language of
section 1001.36, subdivision (a), puts the court in the driver’s
seat: “On an accusatory pleading . . . , the court may, after
considering the positions of the defense and prosecution,
grant pretrial diversion to a defendant . . . .” (§ 1001.36,
subd. (a).) He argues that interpreting this language as
requiring a defendant to request diversion would render
superfluous one of the criteria for eligibility, that the
defendant consents to diversion. (§ 1001.36, subd. (b)(1)(B).)
“When we interpret statutes, our primary task is to
determine and give effect to the Legislature’s purpose in
enacting the law. [Citations.] We first look to the words of
the statute, as they are generally the most reliable
indicators of the legislation’s purpose. [Citations.] To
further our understanding of the intended legislative
purpose, we consider the ordinary meaning of the relevant
terms, related provisions, terms used in other parts of the
statute, and the structure of the statutory scheme.” (In re
H.W. (2019) 6 Cal.5th 1068, 1073; see also People v. Superior
Court (Zamudio) (2000) 23 Cal.4th 183, 192.) Common
principles of statutory interpretation establish that, absent
evidence to the contrary, the word “may” grants permissive
or discretionary authority, while in contrast the word “shall”
is directive or mandatory. (Zamudio, supra, at p. 194 [the
word “shall” is ordinarily construed as mandatory, unless
such a construction would imply an unreasonable legislative

23
purpose]; California Correctional Peace Officers Assn. v.
State Personnel Bd. (1995) 10 Cal.4th 1133, 1143 [the word
“‘may’” is ordinarily deemed permissive]; Ajaxo, Inc. v.
E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 165
[use of word “may” gave trial court discretion to award
royalties, but did not require such an award]; Severson &
Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 946
[when the Legislature uses both the terms “shall” and “may”
in the same statute, the word “shall” is construed as
mandatory, not permissive].)
Godoy’s argument rests on a statutory provision where
the Legislature has used the word “may,” which is
permissive, not mandatory. In the same statutory scheme,
the Legislature used the word “shall” when the court is
required to act. For example, “[u]pon request, the court shall
conduct a hearing to determine whether restitution . . . is
owed to any victim as a result of the diverted offense . . .”
(§ 1001.36, subd. (c)(4)) and upon satisfactory completion of
diversion, “the court shall dismiss” the relevant charges (id.,
subd. (e)).
We are unpersuaded by Godoy’s argument that unless
the statutory language is read as requiring the court to
exercise its sua sponte duty to consider a defendant’s
eligibility for diversion, the requirement for defendant’s
consent to diversion is superfluous. It is more likely that the
language reflects a legislative intent to permit either the
prosecution or the defense to request diversion. If the
prosecution requests diversion, the defendant still bears the

24
burden of showing he or she can meet the minimum
eligibility requirements, including consenting to diversion.
(§ 1001.36, subd. (b)(1)(B).) The following language logically
flows from such an interpretation: “At any stage of the
proceedings, the court may require the defendant to make a
prima facie showing that the defendant will meet the
minimum requirements of eligibility for diversion and that
the defendant and the offense are suitable for diversion.”
(§ 1001.36 (b)(3), italics added.)
Based on our reading of the statutory text, we reject
Godoy’s argument that the trial court has a sua sponte duty
to conduct an eligibility hearing for a defendant when there
is some evidence that the defendant may be eligible for
diversion.

D. Ineffective assistance of counsel argument

Alternatively, Godoy argues that his counsel’s failure
to seek pretrial diversion constituted ineffective assistance of
counsel.
“In order to establish a claim for ineffective assistance
of counsel, a defendant must show that his or her counsel’s
performance was deficient and that the defendant suffered
prejudice as a result of such deficient performance.
(Strickland v. Washington (1984) 466 U.S. 668, 687–692.) To
demonstrate deficient performance, defendant bears the
burden of showing that counsel’s performance ‘“‘“fell below
an objective standard of reasonableness . . . under prevailing

25
professional norms.”’”’ (People v. Lopez (2008) 42 Cal.4th
960, 966.) To demonstrate prejudice, defendant bears the
burden of showing a reasonable probability that, but for
counsel’s deficient performance, the outcome of the
proceeding would have been different. (Ibid.; In re Harris
(1993) 5 Cal.4th 813, 833.)” (Mickel, supra, 2 Cal.5th at
p. 198.)
“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.” (People v. Mai
(2013) 57 Cal.4th 986, 1009; accord, People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266–267 (Mendoza Tello) [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].)
As our Supreme Court has observed, “certain practical
constraints make it more difficult to address ineffective
assistance claims on direct appeal rather than in the context
of a habeas corpus proceeding. [Citations.] The record on
appeal may not explain why counsel chose to act as he or she
did. Under those circumstances, a reviewing court has no

26
basis on which to determine whether counsel had a
legitimate reason for making a particular decision, or
whether counsel’s actions or failure to take certain actions
were objectively unreasonable.” (Mickel, supra, 2 Cal.5th at
p. 198; see also People v. Snow (2003) 30 Cal.4th 43, 94–95;
Mendoza Tello, supra, 15 Cal.4th at pp. 266–267.) The
record before us poses such practical constraints and
precludes us from finding ineffective assistance of counsel.
Godoy contends that defense counsel’s performance fell
below an objective standard of reasonableness. He argues
that because section 1001.36 was an important change in the
law, creating a diversion program for a large class of
defendants with mental health issues where few diversion
programs previously existed, any reasonably competent
attorney would have investigated his or her client’s
eligibility for diversion. He also argues that because
diversion would have resulted in him avoiding a 16-year
prison sentence, the benefits were so clear there could be no
satisfactory tactical reason for his counsel’s failure to
request diversion. We disagree on both counts.
First, there is no evidence in the record that defense
counsel was unaware of section 1001.36 once it was enacted.
Second, counsel could have chosen not to request diversion
for a variety of reasons. For all we know, counsel discussed
the matter with Godoy, and he may have refused to consent
to diversion, waive his speedy trial rights, or agree to comply
with mental health treatment. (§ 1001.36, subds. (b)(1)(D) &
(E).) Even if we assume that Godoy had a recent diagnosis

27
by a qualified mental health expert that he suffered from a
qualifying disorder (id., subd. (b)(1)(A)), counsel might have
determined that there was not enough evidence to
demonstrate that the disorder “substantially contributed” to
Godoy’s commission of the offense (id., subd. (b)(1)(B)) or
that the “symptoms of the mental disorder motivating the
criminal behavior would respond to mental health
treatment” (id., subd. (b)(1)(C)).

Striking one-year prior prison term sentencing
enhancement

Godoy contends this court should strike the one-year
prior prison term enhancement imposed pursuant to section
667.5, subdivision (b), because the California Legislature
subsequently amended that section, effective January 1,
2020, to only apply to prior prison terms based on specified
sexually violent offenses. (Sen. Bill No. 136 (2019–2020 Reg.
Sess.).)
Godoy’s one-year prior prison term enhancement was
based on a conviction of unlawful taking of a vehicle (Veh.
Code, § 10851). Because that crime is not an enumerated
sexually violent offense (Welf. & Inst. Code, § 6600, subd.
(b)), we agree with the parties that the amended law applies
to him retroactively, and the one-year enhancement should
be stricken. (People v. Reneaux (2020) 50 Cal.App.5th 852,
876 [Senate Bill No. 136 applies to non-final judgments on
appeal]; see In re Estrada (1965) 63 Cal.2d 740, 744–746

28
[absent evidence of contrary legislative intent, statutory
amendments that reduce punishment apply to all defendants
whose judgments were not yet final when the law took
effect].)

DISPOSITION

The judgment is modified to strike Godoy’s one-year
prior prison term sentencing enhancement. (§ 667.5, subd.
(b).) As so modified, the judgment is affirmed. The clerk of
the superior court is directed to prepare an amended
abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

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