People v. Hill

Filed 1/21/21
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent, A157339
v.
JASON DAVID HILL, (Lake County
Defendant and Appellant. Super. Ct. Nos. CR953084,
CR940896)

INTRODUCTION
After pleading no contest to concealing a dirk or dagger and admitting
this offense violated probation in another matter, the trial court sentenced
Jason David Hill to an aggregate term of two years eight months in prison
and revoked his probation. On appeal, Hill contends that his conviction and
probation revocation should be conditionally reversed and the matter
remanded because his attorney was ineffective for failing to request a hearing
on his eligibility for mental health diversion under Penal Code section
1001.36.1
The Attorney General argues that Hill’s claim is barred for failure to
obtain a certificate of probable cause and, in any event, the claim fails on the

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*

opinion is certified for publication with the exception of part B of the
discussion.
1 All further statutory references are to the Penal Code.

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merits because Hill has not established that his counsel was deficient in
failing to request an eligibility hearing or that he was prejudiced by counsel’s
failure to request such a hearing. As to the first contention, we disagree with
the Attorney General that a certificate of probable cause was required to
raise the mental health diversion issue. However, the second contention is
well taken because Hill failed to establish either deficient performance or
prejudice. Accordingly, we affirm the judgments sentencing Hill to state
prison and revoking his probation.
BACKGROUND
A. Possession of Firearm (CR940896)
On June 1, 2016, pursuant to a negotiated disposition, Hill pleaded
no contest to felony possession of a firearm by a convicted felon (§ 29800,
subd. (a)) in case No. CR940896. The court suspended imposition of sentence
and placed Hill on felony probation for three years.
B. Concealed Dirk or Dagger (CR953084)2
On January 19, 2019, a Clearlake police officer noticed Hill outside of a
liquor store. The officer went up to Hill, obtained his name, and walked away
to conduct a records check. The records check revealed that Hill was on
postrelease community supervision (PRCS).3 As the officer returned, Hill
“produced” a knife and placed it on a pole in front of him. Hill said he needed
the knife “for protection because he walks around in Clearlake at night.”
When asked where the knife came from, Hill “said he had it shoved down his
sleeve.”

2We take the facts of the offense from the preliminary hearing, which
formed the stipulated basis for Hill’s plea.
3 Hill was actually on probation, not PRCS, at the time of the incident.

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C. Plea and Sentencing
On April 10, 2019, Hill pleaded no contest to concealing a dirk or
dagger (§ 21310) in case No. CR953084. As part of the plea, Hill admitted a
probation violation in case No. CR940896. The plea was open with a
maximum possible sentence of two years eight months. The trial court
accepted Hill’s admission and revoked his probation in case No. CR940896.
On May 13, 2019, the trial court sentenced Hill in case Nos. CR953084
and CR940896 to an aggregate term of two years eight months in prison.
Hill filed timely notices of appeal in both cases.
DISCUSSION
A. No Certificate of Probable Cause Required
The Attorney General contends Hill’s appeal is barred for failure to
obtain a certificate of probable cause. In response, Hill asserts that if a
certificate of probable cause was required, it is a further example of
ineffective assistance of counsel.
Section 1237.5 provides, “No appeal shall be taken by the defendant
from a judgment of conviction upon a plea of guilty or nolo contendere,”
except where defendant has obtained from the trial court a certificate of
probable cause. “ ‘The purpose for requiring a certificate of probable cause is
to discourage and weed out frivolous or vexatious appeals challenging
convictions following guilty and nolo contendere pleas. [Citations.] The
objective is to promote judicial economy “by screening out wholly frivolous
guilty [and nolo contendere] plea appeals before time and money is spent
preparing the record and the briefs for consideration by the reviewing court.”
[Citations.]
“ ‘It has long been established that issues going to the validity of a plea
require compliance with section 1237.5. [Citation.] Thus, for example, a

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certificate must be obtained when a defendant claims that a plea was induced
by misrepresentations of a fundamental nature [citation] or that the plea was
entered at a time when the defendant was mentally incompetent [citation].
Similarly, a certificate is required when a defendant claims that warnings
regarding the effect of a guilty plea on the right to appeal were inadequate.
[Citation.]’ [Citation.]
“ ‘In determining whether section 1237.5 applies to a challenge of a
sentence imposed after a plea of guilty or no contest, courts must look to the
substance of the appeal: “the crucial issue is what the defendant is
challenging, not the time or manner in which the challenge is made.”
[Citation.] Hence, the critical inquiry is whether a challenge to the sentence
is in substance a challenge to the validity of the plea, thus rendering the
appeal subject to the requirements of section 1237.5.’ ” (People v. Buttram
(2003) 30 Cal.4th 773, 781–782.)
Our Supreme Court has explained that a plea in which the parties
agree to a maximum sentence does not require a certificate of probable cause
unless the defendant challenges the legal validity of the maximum sentence
itself. (People v. Buttram, supra, 30 Cal.4th at pp. 790–791.) “When the
parties negotiate a maximum sentence, they obviously mean something
different than if they had bargained for a specific or recommended sentence.
By agreeing only to a maximum sentence, the parties leave unresolved
between themselves the appropriate sentence within the maximum. That
issue is left to the normal sentencing discretion of the trial court, to be
exercised in a separate proceeding.” (Id. at p. 785.)
“[A] certificate of probable cause is not required to challenge the
exercise of individualized sentencing discretion within an agreed maximum
sentence. Such an agreement, by its nature, contemplates that the court will

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choose from among a range of permissible sentences within the maximum,
and that abuses of this discretionary sentencing authority will be reviewable
on appeal, as they would otherwise be. Accordingly, such appellate claims do
not constitute an attack on the validity of the plea, for which a certificate is
necessary.” (People v. Buttram, supra, 30 Cal.4th at pp. 790–791; see id. at p.
777 [“Unless it specifies otherwise, a plea agreement providing for a
maximum sentence inherently reserves the parties’ right to a sentencing
proceeding in which (1) . . . they may litigate the appropriate individualized
sentence choice within the constraints of the bargain and the court’s lawful
discretion, and (2) appellate challenges otherwise available against the
court’s exercise of that discretion are retained”].)
Here, in case No. CR953084, Hill pleaded no contest to one count of
carrying a concealed dirk or dagger (§ 21310), which carried a minimum
sentence of 16 months and a maximum sentence of three years, and he
admitted a violation of probation in case No. CR940896. Pursuant to the plea
agreement, the parties agreed to a maximum, aggregate sentence of two
years eight months. Exercising its discretion, the trial court denied probation
and imposed the midterm sentence of two years for carrying a concealed dirk
or dagger (CR953084) and the midterm sentence of eight months for being a
felon in possession of a firearm (CR940896). Because Hill’s appeal does not
attack the validity of his plea and instead challenges the trial court’s
sentencing discretion relating to the application of section 1001.36, no
certificate of probable cause was required. Accordingly, Hill’s counsel did not
render ineffective assistance by failing to request one.

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B. Trial Counsel Did Not Render Ineffective Assistance
Hill claims his trial counsel was ineffective for failing to request a
hearing to determine his eligibility for mental health diversion under section
1001.36. We disagree.
1. Additional Background
In a statement to the probation department, Hill said he suffered from
bipolar disorder and posttraumatic stress disorder (PTSD). Hill reported that
he suffered a “mental breakdown” after the Valley Fire of 2015 destroyed his
home. Hill further reported he “had been attending behavioral health
treatment for his mental health issues” but nevertheless attempted suicide
on two occasions. Hill explained he was in a “disfunctional [sic] mindset” on
the day of his arrest and believed he needed to carry the knife to protect
himself from “any unnecessary violence . . . .” In conclusion, Hill expressed,
“Incarceration is not the answer nor beneficial to me where as [sic] counseling
[and] treatment for mental health . . .would better serve justice [and]
rehabilitation.”
At sentencing, Hill’s counsel requested that the court grant Hill
probation. Counsel argued that imprisonment would harm Hill because he
“has bipolar disorder and suffers PTSD” and that the court should consider
these “mental health factors not amounting to a defense but still pertaining
to the nature of the defendant.” Trial counsel unsuccessfully moved the court
to reduce the charge to a misdemeanor under section 17, subdivision (b).
Finally, counsel argued that if the court denied Hill probation it should
sentence Hill to the mitigated term.
The court denied probation and sentenced Hill to the midterm of two
years on the carrying a concealed dirk or dagger charge in case No.
CR953084. The court also sentenced Hill to the midterm of eight months for

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being a felon in possession of a firearm in case No. CR940896. Citing section
1203, subdivision (e)(4), the court noted Hill had suffered at least three prior
felonies and thus there was a presumption against granting probation
“except in an unusual case in which the interests of justice would best be
served . . . .” The court found there were no circumstances in favor of
mitigation. The court further noted “there is no evidence that the crime was
committed because of a mental condition, and there is not a high likelihood
that the defendant would respond favorably to treatment.” Even without the
presumption against probation, the court said it would deny probation
because Hill’s “prior convictions are numerous, . . . his prior performance on
probation was poor because he was on a grant of probation at the time of the
second offense here, [and] his ability to comply with the reasonable terms of
probation is poor.” Finally, the court found that Hill posed a danger to
society and would continue to do so if not imprisoned.
2. Hill’s Claim of Ineffective Assistance of Counsel Fails
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) In asserting a claim
of ineffective assistance of counsel, an aggrieved defendant “must show both
that his counsel’s performance was deficient when measured against the
standard of a reasonably competent attorney and that counsel’s deficient
performance resulted in prejudice to defendant in the sense that it ‘so
undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.’ ” (People v. Kipp (1998)
18 Cal.4th 349, 366, italics added, quoting Strickland v. Washington (1984)
466 U.S. 668, 686 (Strickland).)
With regard to counsel’s performance, to establish ineffective
assistance based on direct appeal, “the defendant must show ‘(1) the record

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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.’ ”
(People v. Hoyt (2020) 8 Cal.5th 892, 958.)
With regard to prejudice, the defendant must show “a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” (People v. Centeno (2014) 60 Cal.4th
659, 676, quoting Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694.)
Unless a defendant establishes the contrary, “ ‘we shall presume that
“counsel’s performance fell within the wide range of professional competence
and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” ’ ” (People v. Centeno, supra, 60 Cal.4th at pp. 674–
675.)
Section 1001.36 provides pretrial diversion may be granted if the trial
court finds all of the following criteria are met: (1) the defendant suffers from
a recently diagnosed mental disorder enumerated in the statute; (2) the
disorder was a significant factor in the commission of the charged offense;
(3) “[i]n the opinion of a qualified mental health expert, 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 his right to a speedy trial; (5) the defendant agrees to comply with
treatment as a condition of diversion; and (6) the defendant will not pose an
unreasonable risk of danger to public safety if treated in the community.
(§ 1001.36, subd. (b)(1).)

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 The statute further provides: “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. The
hearing on the prima facie showing shall be informal and may proceed on
offers of proof, reliable hearsay, and argument of counsel. If a prima facie
showing is not made, the court may summarily deny the request for diversion
or grant any other relief as may be deemed appropriate.” (§ 1001.36, subd.
(b)(3).)
Section 1001.36 had been in effect for almost a year prior to Hill’s
sentencing, yet trial counsel did not request a hearing to determine Hill’s
eligibility. The record is silent as to why counsel did not pursue pretrial
diversion under section 1001.36. Although Hill contends that the record
discloses trial counsel had no rational tactical purpose for not requesting
pretrial diversion under section 1001.36 and there is no other satisfactory
explanation for failing to request pretrial diversion (see People v. Hoyt, supra,
8 Cal.5th at p. 958; People v. Centeno, supra, 60 Cal.4th at p. 675), we
disagree. Nothing in the record supports Hill’s unsubstantiated claim that
trial counsel was “[l]ikely . . . unaware of section 1001.36 or, at least, its
application” to his case. (See People v. Mai, supra, 57 Cal.4th at p. 1018
[reviewing “ ‘ “court cannot evaluate alleged deficiencies in counsel’s
representation solely on defendant’s unsubstantiated speculation” ’ ”].) Trial
counsel very well may have investigated the facts and concluded there was
insufficient evidence to support a prima facie showing that Hill was eligible
for diversion. (See § 1001.36, subd. (b)(3); see also People v. Thompson (2010)
49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to make frivolous or
futile motions”].)

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 Hill nevertheless maintains that remand is required because he
“appears to be a good candidate for mental health diversion.” Hill suggests
his “psychiatric records” were not presented to the trial court because his
attorney failed to request a section 1001.36 hearing. In making this
argument, Hill is effectively seeking to blur the distinct line between direct
and collateral review. (See People v. Cunningham (2001) 25 Cal.4th 926,
1003 [stating that a defendant who raises ineffective assistance of counsel on
direct appeal “must establish deficient performance based upon the four
corners of the record”].) To the extent Hill maintains counsel was ineffective
for failing to present his “psychiatric records,” any expansion of the factual
record must be presented via habeas corpus petition. (People v. Snow (2003)
30 Cal.4th 43, 122.)
In order to prevail on his ineffective assistance of counsel claim on
direct appeal, Hill must “affirmatively prove[]” prejudice, meaning he must
demonstrate not merely a possibility that he would have qualified for
diversion but “ ‘a reasonable probability . . . .’ ” (People v. Maury (2003) 30
Cal.4th 342, 389, italics added.) In asserting that he is entitled to a remand
on the mere chance that he “appears to be a good candidate” for diversion,
Hill fails to appreciate this important legal distinction. (See People v.
Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10 [deeming language from older
cases suggesting that prejudice for purposes of ineffective assistance of
counsel claims may be shown by a mere “reasonable possibility” as “no longer
vital”], disapproved on another point in People v. Hill (1998) 17 Cal.4th 800,
822–823 & fn. 1.)
Diversion requires a showing that a diagnosed mental disorder as
described in section 1001.36, subdivision (b)(1)(A) was a “significant factor” in
the commission of the crime (id., subd. (b)(1)(B)), that defendant would

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respond to mental health treatment (id., subd. (b)(1)(C)), and that defendant
would not pose an unreasonable risk to public safety if treated in the
community (id., subd. (b)(1)(F)). Here, the trial court expressly stated at the
sentencing hearing that “there is no evidence that the crime was committed
because of a mental condition, and there is not a high likelihood that the
defendant would respond favorably to treatment.” The court further
determined that Hill posed a danger to society and would continue to do so if
not imprisoned. Although the trial court did not specifically reference the
diversion statute, these findings suggest that Hill did not meet the minimum
requirements for diversion and, as such, there is a reasonable probability
that the court would have summarily denied a request for diversion had one
been made. (§ 1001.36, subd. (b)(1) & (3).)
For these reasons, Hill’s claim of ineffective assistance of counsel claim
fails.
DISPOSITION
The judgment in case No. CR953084 is affirmed. The judgment in
CR940896 is affirmed.

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 _________________________
Jackson, J.

WE CONCUR:

_________________________
Fujisaki, Acting P. J.

_________________________
Petrou, J.

A157339/People v. Jason David Hill

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A157339/People v. Jason David Hill

Trial Court: Superior Court of the County of Lake

Trial Judge: Arthur H. Mann, J.

Counsel: Jonathan Soglin, Stephanie Clark and Deborah Rodriguez,
under appointment by the Court of Appeal, for
Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence,
Senior Assistant Attorney General, Donna M.
Provenzano and Roni Dina Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.

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