People v. Vidana CA2/4

Filed 2/2/21 P. v. Vidana CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B302677

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA093228) v.

AUGUSTIN MAXIMILLIAN VIDANA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, David Walgren, Judge. Affirmed. Law Offices of Rauol J. Severo, Rauol J. Severo and Rhyzan Croomes for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Appellant Augustin Vidana pled no contest to one count of felony vandalism. He contends his trial counsel rendered ineffective assistance by failing to raise the issue of his mental health at sentencing and to request mental health diversion. He seeks remand for resentencing on that basis. We conclude that appellant has failed to establish that his counsel was ineffective and therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND The Los Angeles County District Attorney charged appellant by information on August 7, 2019, with felony vandalism (Pen. Code, § 594, subd. (a); count one),1 misdemeanor possession of smoking device (Health & Saf. Code, § 11364; count two), and misdemeanor possession of tools to commit vandalism or graffiti (§ 594.2, subd. (a); count three). The information further alleged that appellant suffered a prior strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)), and served three prior prison terms (§ 667.5, subd. (b)). On September 18, 2019, appellant entered a plea of no contest to count one and admitted the prior strike. Following appellant’s advisement and waiver of rights, defense counsel informed the court that “just for the record, an [Evidence Code section] 730 [expert evaluation of appellant’s mental health] was conducted. [Appellant] was found competent at this time, provided he is still on his medication.” The trial court accepted appellant’s plea and convicted him on count one. The remaining counts were dismissed. The court accepted the parties’