Opinion
B296611
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. LARHEA SHAVONNE SAIDY-POWELL, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. MA060557 APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.
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Larhea Shavonne Saidy-Powell appeals from a trial court judgment sentencing her to two years in the county jail after she failed to appear for sentencing. Saidy-Powell contends she should have been granted pretrial mental health diversion under Penal Code section 1001.36, enacted after Saidy-Powell entered her no-contest plea to a forgery charge but before she was apprehended on a bench warrant. In her appeal, Saidy-Powell contends her counsel was ineffective for failing to request mental health diversion at her sentencing hearing. We find no trial court error, and we conclude Saidy-Powell has not shown her counsel's representation was deficient. Accordingly, we affirm Saidy-Powell's conviction.
References to statutes are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
In August 2013 the People charged Saidy-Powell with forgery in violation of section 476. Apparently, Saidy-Powell did not appear for arraignment and the court issued a warrant. The record reflects Saidy-Powell was arrested on the warrant and appeared in court in custody on April 27, 2016. The court appointed counsel for Saidy-Powell and arraigned her. The parties reached a negotiated disposition.
The clerk's transcript contains a copy of the felony complaint, filed on August 28, 2013, but no minute order or docket entry reflecting a failure to appear or the issuance of a warrant. The minute order for April 27, 2016, states Saidy-Powell was present in court in custody on that date, the "matter [came] on calendar as an arrest warrant pick up," and the court recalled the warrant.
Saidy-Powell completed and signed a Tahl waiver plea form. The plea form reflects an agreement that Saidy-Powell would plead no contest to the charge, be placed on probation for three years, receive credit for her days in the county jail, and perform 60 days of "community labor."
In re Tahl (1969) 1 Cal.3d 122.
The prosecutor noted no victim restitution was due, as the check at issue had not been cashed.
The court (Judge Steven D. Ogden) asked Saidy-Powell if she had read and understood the form, and had initialed the boxes containing initials. She confirmed she had. The court told Saidy-Powell it was going to release her that day on her own recognizance and she would have to return to court for sentencing. When the court asked where she lived, Saidy-Powell replied she lived in Gardena but that returning to the Antelope Valley for sentencing would be "fine," that she had family there. The court warned Saidy-Powell she was "to have no new involvement with law enforcement over the next three weeks." Saidy-Powell said she understood. The court then stated, "Okay. Now, if you follow all of those orders, when you come back on the day I give you, you will be sentenced, but you will walk out of court. If you fail to follow my orders, you could conceivably go into custody for three years." Saidy-Powell said she understood and agreed. The court ordered Saidy-Powell to return for sentencing on May 19, 2016.
We question whether Saidy-Powell entered a valid waiver under People v. Cruz (1988) 44 Cal.3d 1247 and People v. Vargas (1990) 223 Cal.App.3d 1107. Box 10a on the plea form was crossed out and Saidy-Powell did not initial it. That box read, "I agree that if I fail to appear on the date for surrender or sentencing without a legal excuse, my plea will become an 'open plea' to the court, I will not be allowed to withdraw my plea, and I may be sentenced up to the maximum allowed by law." It is unclear from the record whether the parties agreed that Saidy-Powell could be sentenced to up to three years if she failed to appear for sentencing. (See People v. Jensen (1992) 4 Cal.App.4th 978, 981-982 [court's imposition of prison sentence after defendant failed to appear, when parties had agreed to plea bargain for probation, impermissible; "return provision" was not freely-bargained for element of plea agreement but term added by court's "policy"]; People v. Casillas (1997) 60 Cal.App.4th 445, 452 [distinguishing "return provision result[ing] from the give-and-take of plea bargaining" from "a judicially imposed afterthought"]; People v. Carr (2006) 143 Cal.App.4th 786, 790 [written plea agreement contained Cruz waiver].) However, Saidy-Powell did not move to withdraw her plea in the trial court nor has she raised this issue on appeal. We therefore do not address it further.
Saidy-Powell did not appear on May 19, 2016, as ordered, and the court (Judge Kathleen Blanchard) issued a "no bail" warrant. Some two years and seven months later, Saidy-Powell was arrested on the warrant. She appeared in court on January 4, 2019. The court recalled the warrant and ordered a supplemental probation report.
The supplemental probation report recommended that Saidy-Powell be granted probation, as had the original probation report in 2016. The original report stated Saidy-Powell had one prior misdemeanor conviction—also for forgery—and no felony convictions. The supplemental report in 2019 stated Saidy-Powell had told the probation officer that her car had been repossessed "days before she was to return to court" and "she had no way to get to [the] Palmdale/Lancaster area." Saidy-Powell "became homeless living next to the 405 freeway in Van Nuys." A San Fernando Valley organization "found her federal subsidized housing" in North Hollywood. Probation reported that Saidy-Powell was "currently go[ing] to me[n]tal health treatment" and named her case worker. Saidy-Powell had been attending college, majoring in social science, but "was unable to go back to school this winter semester due to her being arrested for the outstanding bench warrant in this case."
Next to the probation department's recommendation that Saidy-Powell be granted probation, Judge Blanchard wrote, "No!" At the probation violation hearing on January 25, 2019, the court said it had read the supplemental probation report as well as an email that Saidy-Powell's mother had sent to defense counsel. Defense counsel asked the court to place Saidy-Powell on probation. Counsel noted that even though she had been "in the wind, so to speak, for some time," she had managed to enroll herself in a mental health program and to take college classes.
The record does not reflect that the prosecutor took any position on whether Saidy-Powell should be granted or denied probation at that juncture.
The court responded that "the most basic terms of any formal felony probation are that you obey all laws and all orders of the court and that you report for probation." The court said "it would be completely appropriate" for the court to impose the high term of three years but the court chose instead to impose the midterm of two years.
DISCUSSION
On appeal, Saidy-Powell contends we should remand the case for the court to exercise its discretion to grant her pretrial mental health diversion under section 1001.36. Saidy-Powell acknowledges her lawyer never made a request in the trial court for pretrial diversion but she argues that failure constituted ineffective assistance of counsel.
Section 1001.36 took effect in June 2018. (People v. Frahs (June 18, 2020, S252220) ___ Cal.5th ___ [2020 WL 3429139 at *1] (Frahs).) It authorizes a court to grant pretrial diversion to a defendant who suffers from certain mental disorders if the court is satisfied that specified criteria are met. (§ 1001.36, subd. (b).) 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." (Id., subd. (c).) If the defendant performs satisfactorily in diversion and completes treatment, the court must dismiss the charges. (Id., subd. (e).) But if the court determines the defendant is not performing satisfactorily in diversion, or she fails to compete it, the court may reinstate the criminal proceedings. (Id., subd. (d).) On June 18, 2020, our Supreme Court held that section 1001.36 applies retroactively to cases in which the judgment is not yet final. (Frahs, at *1.)
As noted, section 1001.36 had not yet been enacted when Saidy-Powell entered her plea in April 2016. It was in effect, however, when she was apprehended on the warrant in January 2019. But Saidy-Powell never raised mental health diversion in the trial court nor did she ask the court to permit her to withdraw her no-contest plea and participate in diversion. Saidy-Powell contends her counsel was constitutionally ineffective in failing to ask the court to grant Saidy-Powell mental health diversion. We do not agree.
Under either the federal or state Constitution, the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) To establish a claim for ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) that her lawyer's performance was deficient because it fell below an objective standard of reasonableness in all the circumstances; and (2) that absent those errors, a different outcome was reasonably probable, meaning a probability sufficient to undermine confidence in the outcome. (People v. Cunningham (2001) 25 Cal.4th 926, 1030.)
When reviewing the adequacy of counsel's performance, we presume counsel's conduct fell within the " 'wide range' " of reasonably competent assistance. (In re Lucas (2004) 33 Cal.4th 682, 722.) We are required to make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Strickland, supra, 466 U.S. at p. 689.) "Although 'a court must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance' [citation], nonetheless, counsel's alleged tactical decisions must be subjected to 'meaningful scrutiny.' [Citation.]" (Lucas, at p. 722.)
Saidy-Powell asserts "[t]here 'simply could be no satisfactory explanation' for counsel's failure to raise [the] issue [of mental health diversion] at the sentencing hearing." But we can readily imagine such a "satisfactory explanation": Saidy-Powell had never come to court voluntarily. She bench-warranted twice, was missing in action for more than five years all told, and was arrested twice on warrants. She and her counsel may have decided it would be better for her just to serve her time—less than a year in the county jail—be done with it, and get on with her life. Had Saidy-Powell pursued mental health diversion, she would have been required to complete an inpatient or outpatient program of mental health treatment. (§ 1001.36, subd. (c)(1)(A).) Her provider would have had to "provide regular reports to the court, the defense, and the prosecutor on [her] progress in treatment." (Id., subd. (c)(2).) And if Saidy-Powell performed unsatisfactorily in her assigned treatment program or committed another crime, the criminal proceedings would have been reinstated (id., subd. (d)), and she would have faced up to three years in custody. In short, Saidy-Powell and her counsel may well have believed she was unable or unwilling to comply with the rigorous terms of diversion, and it was in her best interest simply to finish her jail term. (See People v. Weaver (2001) 26 Cal.4th 876, 925 [reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel].)
On our own motion, we take judicial notice of the Los Angeles County Sheriff's Department Inmate Information Center web page, which shows Saidy-Powell was released on August 22, 2019. (Evid. Code, § 452, subds. (c), (h).)
In light of our conclusion, we need not address the Attorney General's argument that Saidy-Powell has not shown she has been diagnosed with a qualifying mental disorder, a prerequisite for mental health diversion under section 1001.36. (See § 1001.36, subd. (b)(1)(A) ["mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia"]. Cf. Frahs, supra, 2020 WL 3429139 at *12 [conditional limited remand warranted where record affirmatively disclosed defendant appeared to meet at least first threshold eligibility requirement: that he suffered from a qualifying mental disorder].) --------
In sum, because Saidy-Powell has failed to show that her counsel's decision not to request a diversion hearing under section 1001.36 was deficient, she cannot establish a claim for ineffective assistance of counsel.
DISPOSITION
We affirm Larhea Shavonne Saidy-Powell's conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.