Filed 4/11/22 P. v. Maytorena CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082998
Plaintiff and Respondent,
(Super. Ct. No. F16904363)
v.
BRENNEN JOSHUA MAYTORENA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Peña, J. and DeSantos, J.
Appointed counsel for defendant Brennen Joshua Maytorena asked this court to
review the record to determine whether there are any arguable issues on appeal following
our remand of this case in People v. Maytorena (July 30, 2020, F077998) [nonpub. opn.]
(Maytorena). (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his
right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant did not respond. Finding no arguable error that would result in a disposition
more favorable to defendant, we affirm.
BACKGROUND
On July 8, 2016, defendant attacked his father with a kitchen knife, lacerating a
tendon in his hand. (Maytorena, supra, F077998.)
On June 21, 2018, defendant was convicted by jury trial of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1);1 count 1). The jury found that defendant
personally inflicted great bodily injury (§ 12022.7, subd. (a)), and the trial court found
that he had suffered a prior “strike” conviction within the meaning of the “Three Strikes”
law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served two prior prison
terms (§ 667.5, subds. (a) & (b)). (Maytorena, supra, F077998.)
On August 10, 2018, the trial court sentenced defendant to the midterm of
six years (three years, doubled pursuant to the Three Strikes law), plus a consecutive
three-year bodily injury enhancement. The court struck the prior prison term
enhancements, awarded credits, and imposed various fines and fees. (Maytorena, supra,
F077998.)
On appeal, we conditionally reversed and remanded for the trial court to consider
defendant’s eligibility for mental health diversion under section 1001.36.2 (Maytorena,
supra, F077998.) Section 1001.36 authorizes a trial court to grant “pretrial diversion,” a
1 All statutory references are to the Penal Code.
2 Section 1001.36 became effective on June 27, 2018. (Stats. 2018, ch. 34, § 24.)
2.
postponement of prosecution to allow the defendant to undergo mental health treatment if
the defendant meets specified requirements. (§ 1001.36, subds. (a) & (c).) Successful
completion of diversion results in the dismissal of the original charges. (§ 1001.36,
subd. (e).) The trial court may grant diversion if 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); see People v. Frahs (2018) 27 Cal.App.5th 784,
789–790.)
On May 25, 2021, Dr. Donna Snow, the psychologist hired to assess defendant’s
mental health, reported to defense counsel that she had tried to conduct a telephonic
interview with defendant, but he refused to take her call. Prison staff tried several times,
unsuccessfully, to convince defendant to take the call.
On June 7, 2021, the trial court denied defendant’s motion for mental health
diversion on the grounds that he would not agree to comply with treatment and would not
consent to diversion. The court reinstated defendant’s conviction and sentence.
On June 29, 2021, defendant filed a notice of appeal.
DISCUSSION
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to defendant.
3.
DISPOSITION
The judgment is affirmed.
4.