People v. Secrest CA3

Filed 4/29/22 P. v. Secrest CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C093745

Plaintiff and Respondent, (Super. Ct. No. 21CF00187)

v.

CARLTON GORDON SECREST,

Defendant and Appellant.

Defendant Carlton Gordon Secrest pleaded no contest to charges related to felony indecent exposure, and the trial court sentenced him to the upper term in prison. On appeal, he contends he received ineffective assistance of counsel because his trial counsel did not request mental health diversion pursuant to Penal Code section 1001.36. (Statutory section citations that follow are to the Penal Code.) In supplemental briefing, defendant argues we must reverse and remand the matter so as to give him the benefit of the ameliorative changes to section 1170 enacted under

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Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) (Stats. 2021, ch. 731), which came into effect on January 1, 2022, while his appeal was pending. The People concede, and we agree. We will reverse defendant’s sentence, remand for resentencing, and otherwise affirm.

FACTS AND HISTORY OF THE PROCEEDINGS In January 2021, the victim was parked in his car at a gas station. Defendant approached the driver’s side window and spat on the victim. Defendant then walked to the front passenger side, pulled down his pants, exhibited his penis, and masturbated in front of the victim. Police arrived and found defendant sitting nearby. He was “unable to communicate properly.” Defendant said he was under the influence of marijuana. In January 2021, defendant was charged with felony indecent exposure with a prior felony indecent exposure conviction (§ 314, subd. (1)) and misdemeanor battery (§ 242). It was further alleged defendant had a prior strike. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In February 2021, defendant pleaded no contest to felony indecent exposure and admitted the prior indecent exposure conviction and the prior strike. The remaining charges were dismissed with a Harvey (People v. Harvey (1979) 25 Cal.3d 754, 758) waiver. In the March 2021 probation report, the probation officer noted that, in February 2021, defendant had been prescribed Benadryl and an unknown psychotropic medication to treat schizophrenia by the jail. He had begun receiving treatment for schizophrenia at the county behavioral health department in 2004, but he stopped participating in treatment in 2016. Defendant said the medication was “helping,” and he would continue with the medication and treatment upon release from custody. Defendant also said he had been unemployed for 10 years due to mental health issues.