People v. Garner
| Decision Date | 12 June 2020 |
| Docket Number | D074777 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JAMORRIO TRAVIS GARNER, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jamorrio Travis Garner (Appellant) of petty theft and possession of fentanyl for sale. In part, the trial court imposed a split sentence of four years in county custody—two years in physical custody followed by another two years on mandatory supervision.
On appeal Appellant raises three issues, none arising from the trial proceedings. He first contends that he received ineffective assistance from his trial attorney, because counsel failed to request for Appellant pretrial mental health diversion under Penal Code section 1001.36.1 Appellant argues next that, during the posttrial sentencing proceedings, the court violated his constitutional right to due process by ordering that he pay various fines, fees, and assessments without first determining whether he had the ability to pay them. Finally, Appellant argues that the terms of the electronics search condition ordered by the court posttrial as part of his mandatory supervision are unconstitutionally overbroad in violation of his due process rights.
As we explain, Appellant did not meet his burden of establishing an entitlement to relief on appeal. Accordingly, we will affirm the judgment.
In an August 2018 amended information, the People (Respondent), through the district attorney, charged Appellant with robbery (§ 211; count 1); possession of a controlled substance, viz., fentanyl, for sale (Health & Saf. Code, § 11351; count 2); and simple possession of a controlled substance, viz., fentanyl (Health & Saf. Code, § 11350,subd. (a); count 3), as a lesser-included offense of count 2. Respondent further alleged that Appellant committed count 1 while on felony probation (§ 1203, subd. (k)).
At trial, the jury returned verdicts of not guilty of robbery (count 1); guilty of petty theft (§ 484), as a lesser included offense of robbery (count 1); and guilty of possession for sale of a controlled substance (count 2).2
In September 2018, the trial court imposed the following sentence on Appellant: time served on count 1; a four-year split term on count 2—two years in county jail followed by two years of mandatory supervision; and imposition of various statutory fines, fees, and assessments. At the time of sentencing, the court also entered a written order which directed more than 30 conditions for the two years of mandatory supervision.
Appellant timely appealed in October 2018.
The parties agree that, in June 2019, the trial court revoked Appellant's mandatory supervision and remanded him to custody.
In April 2018, Appellant selected three bottles of liquor from the liquor counter of a convenience market in Chula Vista. As the store manager walked with Appellant to thecash register, Appellant pushed him aside, causing the manager to fall to the ground. Appellant left the store without paying for the liquor and was driven away in a car that was waiting for him.
Approximately six weeks later, Chula Vista police arrested Appellant. A search of Appellant's backpack revealed marijuana, fentanyl pills, tramadol pills, a digital scale, empty plastic bags, and cash.
On appeal Appellant raises three issues: (1) whether Appellant received ineffective assistance from his trial attorney, because counsel failed to request that the court order pretrial mental health diversion under section 1001.36; (2) whether the trial court erred in ordering, as part of Appellant's sentence, various fines, fees, and assessments without first determining whether Appellant had an ability to pay them; and (3) whether the terms of an electronics search condition ordered by the court as part of Appellant's mandatory supervision are unconstitutionally overbroad. Appellant has not met his burden on appeal of establishing reversible error as to any of the three issues, because, as we explain post: (1) the record in this direct appeal will not support a ruling that trial counsel's representation of Appellant was constitutionally deficient; (2) by failing to object at the time of sentencing, Appellant forfeited appellate review of potential error associated with the fines, fees, or assessments; and (3) because the trial court revoked Appellant's mandatory supervision, issues associated with the electronics search condition of the mandatory supervision are moot.
More than two months before the commencement of Appellant's trial, section 1001.36 became effective. For certain defendants, it authorizes pretrial diversion into mental health treatment programs in lieu of criminal prosecution. (See pt. III.A.2., post.)
Appellant contends that, by failing to request section 1001.36 pretrial diversion prior to trial, his trial attorney did not effectively represent him. Respondent counters by arguing that Appellant did not meet his burden of showing either that trial counsel's performance was deficient or that Appellant was prejudiced by trial counsel's performance.4
Effective June 27, 2018, the Legislature added sections 1001.35 and 1001.36, which promote and authorize trial courts to grant "pretrial diversion" to defendantsdiagnosed with qualifying mental disorders.5 (Stats. 2018, ch. 34, § 24.) In this context, " 'pretrial diversion' means 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).) Section 1001.36, subdivision (a) permits a trial court, after considering the parties' positions, to "grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in paragraph (1) of subdivision (b)."
Section 1001.36, subdivision (b)(1) sets forth six requirements that must be satisfied for a defendant to be eligible for mental health diversion. First, the trial court must be "satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders[.]" (§ 1001.36, subd. (b)(1)(A).) Second, the trial court must be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense." (§ 1001.36, subd. (b)(1)(B).) Third, "a qualified mental health expert" must provide an opinion that "defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (§ 1001.36, subd. (b)(1)(C).) Fourth, subject to certain exceptions related to the defendant's competence, the defendant must consent to diversion and waive the right to a speedy trial.(§ 1001.36, subd. (b)(1)(D).) Fifth, the defendant must "agree[] to comply with treatment as a condition of diversion." (§ 1001.36, subd. (b)(1)(E).) Finally, the court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community." (§ 1001.36, subd. (b)(1)(F).)
If a defendant meets these eligibility requirements, the trial court may order pretrial diversion into an approved treatment program. (§ 1001.36, subd. (c)(1).) The criminal proceedings against the defendant may be diverted "no longer than two years." (§ 1001.36, subd. (c)(3).) If the defendant "has performed satisfactorily in diversion," then, at the end of the diversion period, "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 occurred, and . . . access to the record of the arrest [shall be ordered] restricted[.]" (§ 1001.36, subd. (e).)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215, citing Strickland v. Washington (1984) 466 U.S. 668, 684 (Strickland).) This right entitles the defendant "not to some bare assistance but rather to effective assistance." (Ledesma, at p. 215; accord, Strickland, at p. 686.)
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 thestandard 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, supra, 466 U.S. at p. 686.) With regard to counsel's performance, to establish ineffective...
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