People v. Frizzell CA3

Filed 2/26/21 P. v. Frizzell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C091871

Plaintiff and Respondent, (Super. Ct. No. 19F4243)

v.

RODNEY KEITH FRIZZELL,

Defendant and Appellant.

Defendant appeals a judgment entered following his no contest plea to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); statutory section references that follow are to the Penal Code) and his three-year prison sentence. He complains his counsel was ineffective in failing to move for mental health diversion under section 1001.36 and requests remand for that purpose. We find the record insufficient to establish defendant’s ineffective assistance of counsel claim. Accordingly, we will affirm the judgment.

FACTS AND PROCEDURAL HISTORY The People’s July 11, 2019, complaint charged defendant with a single count of assault with a deadly weapon (§ 245, subd. (a)(1)). On July 24, 2019, defendant waived

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his right to a preliminary hearing, stipulated to the complaint becoming the information, and pleaded not guilty. The parties resolved the matter on August 12, 2019, through defendant’s no contest plea in exchange for a sentencing lid of three years. The stipulated factual basis for this plea was Redding Police Report No. 19R043417, which indicated defendant had struck the victim, B.C., with a miniature baseball bat on her ribs and wrist as witnessed by another neighbor. Defendant fled after the victim fired an empty pellet gun she had in her waistband. The probation department submitted a presentencing report that stated defendant suffered from complications associated with a traumatic brain injury (TBI) and posttraumatic stress disorder (PTSD) for which he had received medication from North American Mental Health. The report also stated defendant used alcohol and marijuana on a daily basis, had used methamphetamine in the past, and had participated in four different inpatient drug treatment programs. Defendant told the probation officer that the victim had invaded his apartment, was waiving what he believed to be a real gun, and that he reacted to defend himself by striking the gun out of her hand. The report recommended a suspended sentence of three years and a grant of formal probation with substance abuse treatment and anger management. At the sentencing hearing on September 10, 2019, the victim requested defendant get the maximum prison sentence because of his bullying and terrorizing of her, including his attack on the day in question. Defendant’s attorney argued for a grant of probation, acknowledging defendant’s TBI and PTSD, although counsel conceded she did not have proof to show the court. Ultimately, the trial court denied defendant’s request for probation and sentenced him to a prison term of three years. The court ordered defendant pay a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation restitution fine (§ 1202.45), a $30 criminal conviction assessment fee (Gov. Code,