Filed 4/29/22 P. v. Secrest CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C093745
Plaintiff and Respondent, (Super. Ct. No. 21CF00187)
v.
CARLTON GORDON SECREST,
Defendant and Appellant.
Defendant Carlton Gordon Secrest pleaded no contest to charges related to felony
indecent exposure, and the trial court sentenced him to the upper term in prison. On
appeal, he contends he received ineffective assistance of counsel because his trial counsel
did not request mental health diversion pursuant to Penal Code section 1001.36.
(Statutory section citations that follow are to the Penal Code.)
In supplemental briefing, defendant argues we must reverse and remand the matter
so as to give him the benefit of the ameliorative changes to section 1170 enacted under
1
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) (Stats. 2021, ch. 731),
which came into effect on January 1, 2022, while his appeal was pending. The People
concede, and we agree. We will reverse defendant’s sentence, remand for resentencing,
and otherwise affirm.
FACTS AND HISTORY OF THE PROCEEDINGS
In January 2021, the victim was parked in his car at a gas station. Defendant
approached the driver’s side window and spat on the victim. Defendant then walked to
the front passenger side, pulled down his pants, exhibited his penis, and masturbated in
front of the victim. Police arrived and found defendant sitting nearby. He was “unable to
communicate properly.” Defendant said he was under the influence of marijuana.
In January 2021, defendant was charged with felony indecent exposure with a
prior felony indecent exposure conviction (§ 314, subd. (1)) and misdemeanor battery
(§ 242). It was further alleged defendant had a prior strike. (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d).)
In February 2021, defendant pleaded no contest to felony indecent exposure and
admitted the prior indecent exposure conviction and the prior strike. The remaining
charges were dismissed with a Harvey (People v. Harvey (1979) 25 Cal.3d 754, 758)
waiver.
In the March 2021 probation report, the probation officer noted that, in February
2021, defendant had been prescribed Benadryl and an unknown psychotropic medication
to treat schizophrenia by the jail. He had begun receiving treatment for schizophrenia at
the county behavioral health department in 2004, but he stopped participating in
treatment in 2016. Defendant said the medication was “helping,” and he would continue
with the medication and treatment upon release from custody. Defendant also said he
had been unemployed for 10 years due to mental health issues.
2
Defendant told the probation officer in March 2021 that he was under the
influence of alcohol and marijuana when he committed the crimes. He expressed
remorse for his actions and felt “bad that I did it. I don’t mean to be a [jerk]. I’m having
a mental breakdown. My mom just passed. I can’t find a job and my Social Security
dropped.” Defendant said he was addicted to marijuana and alcohol. Defendant said he
would like to participate in an in-patient substance abuse program. His goal was to stay
sober.
The probation officer recommended the upper term. Although the current crimes
“may have been committed due to [defendant’s] mental health issues,” the current
offense was just as serious as other instances of the same crime, defendant was an active
participant in the offense, he had an extensive criminal history that included violence-
related crimes, and his prior probation and parole performance was unsatisfactory.
Defendant was on probation and parole when he committed the current offense.
During the March 2021 sentencing hearing, the trial court announced its tentative
decision to impose the upper term. Defense counsel acknowledged defendant’s criminal
history but asked the court to strike defendant’s prior strike pursuant to section 1385, or
to impose the middle term. Defense counsel argued there were “mental health issues in
this case,” as well as drug use.
In addition, defense counsel argued, defendant had committed the current offense
to offend, rather than in a sexual way. The prosecution responded that defendant had
committed a similar crime in 2013, and “whatever underlying issues that cause him to
engage in this kind of behavior have not been addressed, and we’re concerned that we’ll
be right back here with a similar case, should he not get the upper term and have a strike
imposed.”
The trial court denied probation and defendant’s motion to strike the strike and
imposed a six-year prison sentence (the upper term of three years doubled due to the prior
strike). The trial court also imposed various fines and fees.
3
Defendant did not obtain a certificate of probable cause on appeal.
DISCUSSION
I
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a defendant must prove
that (1) trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the deficiency
resulted in prejudice to defendant, meaning there is “a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceeding would have been
different.” (See People v. Mai (2013) 57 Cal.4th 986, 1009-1010; see also Strickland v.
Washington (1984) 466 U.S. 668, 687-688, 694.) 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.)
Under section 1001.36, a court may grant pretrial diversion to a defendant if the
court is satisfied that (1) the defendant suffers from a qualifying mental disorder
(including schizophrenia), (2) the mental disorder played a significant role in the
commission of the charged offense, (3) a qualified mental expert opines that defendant’s
symptoms would respond to mental health treatment, (4) defendant consents to the
diversion and waives his right to a speedy trial, (5) defendant agrees to comply with
treatment, and (6) defendant will not pose an unreasonable risk of danger to public safety.
(§ 1101.36, subd. (b)(1).) Although courts of appeal have differed as to when a
defendant must ask the trial court for mental health diversion, this court has held that a
defendant may do so until sentencing and entry of judgment. (People v. Curry (2021)
4
62 Cal.App.5th 314, 325, review granted July 14, 2021, S267394; but see People v.
Graham (2021) 64 Cal.App.5th 827, 832-833 [request for pretrial diversion must be
made prior to jury’s guilty verdict, review granted Sept. 1, 2021, S269509]; People v.
Braden (2021) 63 Cal.App.5th 330, 333 [defendant is ineligible for diversion after his
trial begins], review granted July 14, 2021, S268925.)
Defendant contends competent counsel would have requested the trial court
conduct a mental health diversion eligibility hearing because the record established that
he would have qualified. Defendant notes that he told the probation officer that he
suffered from schizophrenia, a qualified mental illness. Defendant also said he had been
unable to work for 10 years and was “having a mental breakdown.” According to
defendant, the facts of his offense suggest that his mental illness played a significant role
in the commission of the charged offense, especially since he was unable to communicate
properly with police just after the incident. In addition, the probation officer, defense
counsel, and the court all recognized that mental illness may have played a role in the
incident.
However, the record does not establish why defense counsel did not request a
hearing on mental health diversion. It is possible that counsel failed to consider the
possibility of making the request, or unreasonably determined that defendant was
ineligible for diversion. But it is also possible that counsel had valid reasons not to
pursue the issue. For example, defendant could have said he did not consent to diversion,
did not want to participate in mental health treatment, or did not want to waive his right
to a speedy trial. (See § 1001.36, subd. (b)(1) [listing diversion criteria including that the
defendant “consents to diversion,” “agrees to comply with treatment,” and “waives [his]
right to a speedy trial”].) Under the circumstances, the issue is better considered in a
habeas corpus proceeding with a record developed for it.
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II
Remand for Resentencing
While defendant’s appeal was pending, Senate Bill 567 came into effect and
modified the methodology employed when the court is selecting a triad term under
section 1170, creating a presumption in favor of the middle term except as provided.
(Stats. 2021, ch. 731, §§ 1.3, 2.) The parties agree it should be applied retroactively to
defendant’s nonfinal judgment. We concur that Senate Bill 567 should be applied
retroactively to this case and will reverse defendant’s sentence and remand for
resentencing so that the court may exercise its discretion in accordance with the new,
more favorable rules for selecting the appropriate triad term under amended sections
1170 and 1170.1. (See, e.g., People v. Stamps (2020) 9 Cal.5th 685, 699 [“Eliminating
the prior restriction on the court’s ability to strike a serious felony enhancement in
furtherance of justice constitutes an ameliorative change within the meaning of
Estrada”].)
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DISPOSITION
The judgment is reversed and the matter is remanded for resentencing consistent
with the changes brought about by Senate Bill 567 and related legislation.1 The
judgment is otherwise affirmed.
HULL, J.
We concur:
BLEASE, Acting P. J.
, J.
HOCH, J.
1Senate Bill 567, Assembly Bill No. 124 (2021-2022 Reg. Sess.), and Assembly Bill No.
1540 (2021-2022 Reg. Sess.) were all signed by the Governor on October 8, 2021, and
modified certain provisions related to sentencing. Because the application of Senate Bill
567 to this case requires remand, we need not address the possible applicability of the
other provisions.
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