People v. Meyers CA1/5

Filed 9/25/20 P. v. Meyers CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A157866 v. EMIL ZACHARY MEYERS, (Napa County Super. Ct. No. CR185347) Defendant and Appellant.

In February 2018, a jury convicted appellant Emil Zachary Meyers (Appellant) of assault with a deadly weapon (Pen. Code, § 245, sub. (a)(1))1 and corporal injury to a dating partner (§ 273.5, subd. (a)), and found true great bodily injury enhancements (§ 12022.7, subd. (e)). The charges were based on an October 2017 incident during which Appellant threw a beer bottle at his girlfriend and hit her in the head. Appellant claimed he threw the bottle at the ground and the victim was hit by accident. In April 2018, defense counsel declared doubt as to Appellant’s competency, and Appellant was ordered committed to Napa State Hospital in July. In March 2019, criminal proceedings were reinstated; in June, the trial court sentenced Appellant to seven years in prison.

1 All undesignated statutory references are to the Penal Code.

1

On appeal, Appellant contends this matter should be remanded for a hearing to determine his eligibility for mental health diversion under section 1001.36. Enacted in June 2018, section 1001.36 (along with section 1001.35) “created a pretrial diversion program for certain defendants with mental health disorders. (Stats. 2018, ch. 34, § 24.)” (People v. Frahs (2020) 9 Cal.5th 618, 624 (Frahs).) Section 1001.36 sets forth six findings required before a court may grant pretrial diversion: (1) the defendant suffers from a mental disorder recognized in the Diagnostic and Statistical Manual of Mental Disorders; (2) the mental disorder “was a significant factor in the commission of the charged offense;” (3) “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 speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) “the defendant will not pose an unreasonable risk of danger to public safety . . . if treated in the community.” (§ 1001.36, subd. (b)(l)(A)-(F).) If the defendant “perform[s] satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.” (§ 1001.36, subd. (e).) In Frahs, the California Supreme Court held section 1001.36 is retroactive to cases in which the judgment is not yet final. (Frahs, supra, 9 Cal. 5th at pp. 624, 630–631.) Appellant points out he has been diagnosed with bipolar and substance abuse disorders and was found not competent after trial. Appellant effectively concedes defense counsel below forfeited his right to seek diversion under section 1001.36 by failing to file a motion for diversion at or before his sentencing hearing in June 2019. But Appellant argues this court should