Filed 2/2/21 P. v. Vidana CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B302677
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA093228)
v.
AUGUSTIN MAXIMILLIAN VIDANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Walgren, Judge. Affirmed.
Law Offices of Rauol J. Severo, Rauol J. Severo and Rhyzan
Croomes for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel and Stacy S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Augustin Vidana pled no contest to one count of
felony vandalism. He contends his trial counsel rendered
ineffective assistance by failing to raise the issue of his mental
health at sentencing and to request mental health diversion. He
seeks remand for resentencing on that basis. We conclude that
appellant has failed to establish that his counsel was ineffective
and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County District Attorney charged
appellant by information on August 7, 2019, with felony
vandalism (Pen. Code, § 594, subd. (a); count one),1 misdemeanor
possession of smoking device (Health & Saf. Code, § 11364; count
two), and misdemeanor possession of tools to commit vandalism
or graffiti (§ 594.2, subd. (a); count three). The information
further alleged that appellant suffered a prior strike conviction
(§§ 667, subd. (d), 1170.12, subd. (b)), and served three prior
prison terms (§ 667.5, subd. (b)).
On September 18, 2019, appellant entered a plea of no
contest to count one and admitted the prior strike. Following
appellant’s advisement and waiver of rights, defense counsel
informed the court that “just for the record, an [Evidence Code
section] 730 [expert evaluation of appellant’s mental health] was
conducted. [Appellant] was found competent at this time,
provided he is still on his medication.” The trial court accepted
appellant’s plea and convicted him on count one. The remaining
counts were dismissed. The court accepted the parties’
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
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negotiated disposition and sentenced appellant to 32 months in
state prison, comprising the low term of 16 months on count one,
doubled due to the prior strike conviction. Appellant appealed.2
Appellant also filed a request for certificate of probable
cause, stating that he had never been advised that he could
qualify for a diversion program due to “severe mental health
problems” as an alternative to his prison sentence. The court
denied the request.
DISCUSSION
Appellant contends his trial counsel was ineffective for
failing to request mental health diversion based on appellant’s
mental health history. He further argues that he was prejudiced
as a result, because it was reasonably probable that he could
have met the criteria for diversion. We conclude that appellant
has not met the heavy burden to establish ineffective assistance
on direct appeal.
A. Legal Framework
1. Ineffective assistance
To prevail on a claim of ineffective assistance of counsel, a
defendant must establish both that counsel’s performance was
deficient and that he was prejudiced by the deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).) First, to establish deficient performance, a
defendant must show that counsel’s representation was
objectively unreasonable “under prevailing professional norms.”
2Appellant’s notice of appeal was not timely filed and we
issued an order to show cause why the appeal should not be
dismissed. After appellant filed a request for relief from default,
we ordered the appeal deemed timely filed.
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(Id. at p. 688.) Second, unless a defendant can show prejudice
where there is “a reasonable probability”—meaning “a probability
sufficient to undermine confidence in the outcome”—“that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Id. at p. 694; see also People v.
Goldman (2014) 225 Cal.App.4th 950, 957.) Unless a defendant
establishes otherwise, we 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. Carter (2003) 30 Cal.4th 1166,
1211.)
If the record “‘sheds no light on why counsel acted or failed
to act in the manner challenged,’ an appellate claim of ineffective
assistance of counsel must be rejected ‘unless counsel was asked
for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.’” (People v. Ledesma
(2006) 39 Cal.4th 641, 745-746.) “Otherwise, the claim is more
appropriately raised in a petition for writ of habeas corpus.”
(People v. Carter (2003) 30 Cal.4th 1166, 1211.)
2. Diversion under section 1001.36
Section 1001.36 authorizes a pretrial diversion program for
defendants with qualifying mental disorders. The statute defines
“pretrial diversion” as “the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process
from the point at which the accused is charged until adjudication,
to allow the defendant to undergo mental health treatment.”
(§ 1001.36, subd. (c).)
A trial court may order pretrial diversion under the statute
if it finds that the defendant meets all of the following criteria:
(1) the defendant suffers from a recognized mental disorder; (2)
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the defendant’s mental disorder was a significant factor in the
commission of the charged offense; (3) the defendant’s symptoms
would respond to mental health treatment; (4) the defendant
consents to diversion; (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)(1).)
B. Analysis
It is undisputed for the purposes of this appeal that
appellant suffers from a mental disorder, and that he was
previously evaluated and medicated as a result. The probation
department recommended incarceration for the current offense,
given appellant’s lengthy criminal history, including several
violent offenses and offenses committed while on parole.
Appellant notes that his trial counsel was aware of his mental
health history, as she informed the court of appellant’s
competency status prior to sentencing. Thus, appellant contends
that his counsel’s failure to request mental health diversion
under section 1001.36 could have no satisfactory explanation, and
she therefore was ineffective.
We disagree. Appellant has not shown that he met all of
the criteria under section 1001.36 to qualify for diversion.
Indeed, he mentions only the first two criteria in his appellate
brief and merely argues that “it cannot be said that the Court
was either satisfied or dissatisfied with Appellant’s ability to
meet the criteria.” Further, the record does not contain any
information regarding why his counsel did not request that the
court consider diversion. We cannot assume from this record that
there was no satisfactory explanation, as counsel could have
concluded that appellant did not meet one or more of the criteria.
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Nor can appellant establish prejudice, as he has not shown that if
his counsel had requested diversion, there was a reasonable
probability that the trial court would have granted it.
Appellant also argues that his counsel should have
informed the court of his mental health condition so that it could
be considered as a mitigating factor in sentencing. The record
indicates that the court was aware of appellant’s condition and
mental health history from both the statement by defense counsel
and information in the probation report. Moreover, the court
sentenced appellant to the low term in accordance with the terms
of the plea agreement. Thus, appellant cannot show that his
counsel lacked a reasonable basis not to seek additional
mitigation based on appellant’s mental health, or that it was
reasonably probable he would have obtained a more favorable
sentence as a result. Under these circumstances, appellant has
not satisfied his burden to show that his counsel was
constitutionally ineffective.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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