People v. Avila CA3

Filed 3/2/22 P. v. Avila CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C093992

Plaintiff and Respondent, (Super. Ct. No. 62151717)

v.

ISABEL AVILA,

Defendant and Appellant.

This appeal arises from the trial court’s denial of defendant Isabel Avila’s Penal Code section 1001.36 postconviction request for mental health diversion.1 Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will dismiss the appeal.

1 Further undesignated statutory references are to the Penal Code.

1

I. BACKGROUND We quote from our unpublished opinion upholding defendant’s conviction in her first appeal: “Defendant . . . stabbed her live-in boyfriend as he lay sleeping. She then turned the knife on her boyfriend’s twin brother. A jury found defendant guilty of one count of attempted murder, one count of corporal injury to a cohabitant, and one count of assault with a deadly weapon−a knife. The jury found true allegations that the attempted murder was willful, deliberate, and premediated and that defendant personally used a deadly weapon and inflicted great bodily injury under circumstances involving domestic violence. The trial court sentenced defendant to seven years to life plus eight years in state prison.” (People v. Avila (Jun. 25, 2020, C087087) [nonpub. opn.].) After defendant was convicted, section 1001.36 became effective, which created a pretrial diversion program for certain defendants with mental health disorders. (Stats. 2018, ch. 34, § 24.) Following defendant’s appeal, this court conditionally reversed the judgment and remanded for the trial court to hold a diversion eligibility hearing under section 1001.36. (Avila, supra, C087087.) In all other aspects, this court affirmed the judgment. (Ibid.) On remand, the trial court conducted an eligibility hearing pursuant to defendant’s section 1001.36 motion and reviewed briefs from the parties. In a written decision, the trial court determined mental health diversion was not warranted, denied defendant’s motion, and reinstated her convictions, holding that no further sentencing proceedings were required. Defendant timely appealed. II. DISCUSSION We appointed counsel for defendant, who filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra,