People v. Secrest CA3, C093745

Defendant Carlton Secrest approached a victim at a gas station, spat on him, exposed his penis, and masturbated; police found him nearby and he was "unable to communicate properly."
Charged with felony indecent exposure (with a prior indecent exposure conviction) and misdemeanor battery; admitted the prior and pleaded no contest to the felony; a prior "strike" was alleged and admitted.
Probation report documented a history of schizophrenia, prior county behavioral-health treatment, recent jail-prescribed psychotropic medication, and the defendant’s statements about mental-health and substance-use problems.
Defense counsel did not request a mental-health diversion hearing under Penal Code §1001.36; court imposed the upper term (3 years) doubled to 6 years due to the prior strike and denied probation.
On appeal, defendant argued ineffective assistance for failing to seek §1001.36 diversion; while appeal was pending, Senate Bill 567 changed sentencing law to create a middle-term presumption.
The People conceded SB 567 applies retroactively; the Court of Appeal reversed for resentencing under the new law and otherwise affirmed; the ineffective-assistance claim was left for habeas review because the record was undeveloped.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not requesting mental-health diversion under §1001.36	The record does not affirmatively show counsel had no tactical reason; factual gaps (e.g., consent, willingness to waive speedy trial) make claim undeveloped on direct appeal	Counsel was deficient because the record showed schizophrenia, mental-health problems, and facts suggesting illness significantly contributed to the offense, so a §1001.36 hearing should have been requested	Denied on direct appeal: the record is insufficient to show ineffective assistance; the issue is better decided in a habeas corpus proceeding with a developed record
Whether Senate Bill 567’s ameliorative sentencing changes apply retroactively and require resentencing	People conceded SB 567 applies retroactively to nonfinal judgments	Defendant sought application of SB 567’s presumption favoring the middle term	Granted: judgment reversed and remanded for resentencing consistent with SB 567; remainder of judgment affirmed

People v. Mai, 57 Cal.4th 986 (2013) (standard for ineffective assistance on direct appeal)
Strickland v. Washington, 466 U.S. 668 (1984) (governing ineffective-assistance standard)
People v. Curry, 62 Cal.App.5th 314 (2021) (timing for requesting mental-health diversion — this court allowed request through sentencing)
People v. Graham, 64 Cal.App.5th 827 (2021) (contrasting view on diversion timing)
People v. Braden, 63 Cal.App.5th 330 (2021) (another decision discussing diversion eligibility timing)
People v. Stamps, 9 Cal.5th 685 (2020) (ameliorative sentencing changes are retroactive under Estrada)
People v. Harvey, 25 Cal.3d 754 (1979) (Harvey waiver on dismissed counts)