People v. McNamara CA3

Filed 11/29/22 P. v. McNamara CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE, C094515

Plaintiff and Respondent, (Super. Ct. Nos. CRF19-0252, CRF19-1392, CRF19-3196) v.

CODY MICHAEL MCNAMARA,

Defendant and Appellant.

Defendant Cody Michael McNamara contends defense counsel rendered constitutionally ineffective assistance by failing to request mental health treatment for defendant after his probation was terminated. We agree with the People that defendant has failed to meet his burden on this claim. In supplemental briefing, the parties agree, as do we, that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567) warrants remand for reconsideration of defendant’s upper term sentences. Accordingly, we vacate the sentence, remand for resentencing, and otherwise affirm the judgment.

1

BACKGROUND In June 2021, the trial court terminated defendant’s three grants of probation for offenses committed in 2019: possession of a stolen vehicle (Pen. Code, § 496d, subd. (a));1 first degree burglary (§ 459), with an admitted strike; and criminal threats (§ 422, subd. (a)), with another admitted strike. One condition of probation was that defendant, who was diagnosed with bipolar, posttraumatic stress disorder, and substance abuse disorders,2 participate in mental health and substance abuse treatment. In reinstating defendant’s probation for the first time, the trial court emphasized defendant’s disorders were “inextricably intertwined and if he doesn’t follow through on one of these it’s not going to be a successful outcome.” But by defendant’s third violation of probation hearing, after he again failed to report and was found with drugs, his probation officer reported defendant “refused to acknowledge his struggles with substance use or behavioral health; therefore, he is not amenable to services.” He also had “a history of being resistant towards probation” and was “anti- social and defiant.” Defendant was removed from the prehearing conference for being “combative, talk[ing] out of turn, and us[ing] profanity,” and he refused to appear in the ensuing hearing, asserting he had been denied his right to a speedy jury trial. The trial court concluded that defendant “was extended multiple opportunities on probation,” yet had “continued violations of probation,” failed to “give any explanation as to how his actions will be different should he be reinstated on probation,” and “has decided at this point that he no longer is willing to comply with the Probation Department.” The trial court sentenced defendant to the upper term of six years in state prison for the burglary, with concurrent three-year upper terms for the stolen vehicle and