People v. Bull CA2/7 ( 2021 )

Filed 1/28/21 P. v. Bull CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B295558
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA114447)
v.
JOSHUA J. BULL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ruben N. Garcia, Judge. Affirmed.
Shannon Chase, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Idan Ivri and Nancy Lii
Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Joshua Jelani Bull appeals from a judgment after a jury
convicted him of two counts of battery with serious bodily injury
(Pen. Code, § 243, subd. (d)),1 one count of misdemeanor battery
of a police officer (§§ 242, 243, subd. (b)), and one count of second
degree murder (§ 187, subd. (a)). Bull argues that he was denied
effective assistance of counsel because his counsel failed to
request pretrial mental health diversion under section 1001.36.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In an information filed on November 15, 2017, the Los
Angeles County District Attorney charged Bull with two counts of
battery with serious bodily injury (§ 243, subd. (d); counts 1 and
2), one count of misdemeanor battery of a police officer (§§ 242,
243, subd. (b); count 3), one count of misdemeanor battery (§ 242;
count 4), and one count of murder (§ 187, subd. (a); count 5). On
November 26, 2018, the District Attorney filed an amended
information adding a hate-crime allegation as to counts 1, 2, and
5 (§ 422.75, subd. (a)). On November 27, 2018, the trial court
dismissed count 4 in the furtherance of justice (§ 1385).
A. Evidence at Trial
1. The January 26, 2017 Incidents
On the morning of January 26, 2017, without warning, Bull
punched Jose Mendoza in the face while Mendoza was walking
down the street. Bull walked away leaving Mendoza dizzy and
bleeding from a cut to his nose. After taking a few steps and
sitting down, Mendoza observed Bull continue to walk down the
1 Undesignated statutory references are to the Penal Code.
2
street. According to Mendoza, moments after punching him, Bull
encountered Jessie Ayala on the street and began punching him.
Mendoza testified: “[Bull] was swinging at [Ayala] rapidly, like,
not stopping. [Ayala] was standing, not going to fight him, and
[Bull] was, like, just swinging at [Ayala]. [Bull] just couldn’t
stop; so [Ayala], like, backed away, and then [Bull] started
chasing after [Ayala].” After tripping, Ayala “landed on his face
or head” in the street. According to Mendoza, “[Ayala] was on the
floor, cold. That’s when [Bull] was punching him, socking him,
hitting him, stomping on him, saying, “Fuck Mexicans.” [Bull]
spit on him. . . . [Ayala] was out cold.” Mendoza testified that
Bull stomped on Ayala’s head “two times” and punched him
“seven or eight times,” while Ayala was unconscious on the
ground. Bull walked away leaving Ayala unconscious and
bleeding from his head. Police officer Tim Ugarte found Ayala
unconscious and bleeding profusely from his head injuries.
Bull encountered another unidentified man nearby. Police
officer Jesus Garcia, while on patrol, observed Bull “swinging at”
the unidentified man and the unidentified man defensively
swinging at Bull. After Garcia “honked an air horn on the police
car,” Bull “started running across the street.” After Garcia
chased Bull, Bull surrendered. Because “[Bull] had a hard time
breathing,” Garcia called an ambulance to transport Bull to a
hospital for evaluation.
Later in the afternoon, after a physician medically cleared
Bull for discharge from the hospital, while in a police car and
with hands cuffed behind his back, Bull spit on a police officer
and tried to kick him. Bull appeared to cry and laugh while
being transported from the hospital to the police station. At the
3
police station, Bull kicked a police officer when the police
attempted to remove Bull from the police vehicle.
Ayala suffered “traumatic brain injury,” “multiple facial
fractures,” “several brain injuries, several different types of
bleeds, and several strokes.” Ayala “had injury upon injury upon
injury on his brain.” Ayala remained hospitalized until he died
on May 19, 2017. The Los Angeles County Department of
Medical Examiner-Coroner determined that Ayala’s “cause of
death [was] the effect of blunt force trauma to the head.”
Mendoza received seven or more stiches to his face from his
injury. Bull did not know Mendoza or Ayala.
2. Defense Case
a. Bull’s testimony
Bull testified that he has been told he has “schizophrenia”
and has “always dealt with depression.” Bull also testified that,
before the January 2017 attacks, mental health professionals
diagnosed him with a delusional disorder and paranoid
schizophrenia, and as psychotic. He stated that he first began
experiencing hallucinations and “constant” voices in his head in
2016, and was placed on two “5150 hold[s]” in 2016.2 Regarding
2 Welfare and Institutions Code section 5150, subdivision (a),
provides: “When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely
disabled, a peace officer, professional person in charge of a
facility designated by the county for evaluation and treatment . . .
may, upon probable cause, take, or cause to be taken, the person
into custody for a period of up to 72 hours for assessment,
evaluation, and crisis intervention, or placement for evaluation
and treatment in a facility designated by the county for
4
the 5150 hold in May 2016, Bull testified: “They said that I was
paranoid and I tried to lock my family in the house because I
thought some people were after us.” Regarding his second 5150
hold in July 2016, Bull explained, “They said I went to [Los
Angeles Mayor Eric Garcetti’s] house and said I was there to
meet Donald Trump and Mayor Garcetti.” As a result of each
5150 hold, physicians prescribed medications for Bull.
Bull testified that his delusions were “like people
constantly harassing [him].” In general, those voices make him
feel “depressed” or “angry.” According to Bull, at the time of his
encounters with Mendoza and Ayala, the voices told him that he
was “in danger,” although he did not recall anything specific
about what the voices told him. Bull testified that, on the day of
the incidents, he had used marijuana and “may have been” under
the influence of methamphetamine. He was not taking any
medication in January 2017. Bull testified that he had never met
Ayala or Mendoza.
According to Bull, the fight with Ayala “just felt like it was
mutual.” After they “bumped into each other” on the street, “we
kind of faced off and [Bull] thought [he] was in danger. And then
we started fighting.” Bull felt in danger because “[Ayala] just
looked angry, and [Ayala] looked like the type that would want to
fight. So that’s what happened.” Bull testified that Ayala swung
at him, but he did not recall who threw the first punch. Bull also
testified that Ayala looked like “a Hispanic gangster” because “he
was bald and he looked like one.” Bull “hit [Ayala] and he fell
and hit his head.” Bull testified that “[Ayala] was knocked out
evaluation and treatment and approved by the State Department
of Health Care Services.”
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[in the street]. And I noticed he was hurt, and I left.” Bull
understood that he caused Ayala’s death and was “sorry that that
happened.” The voices in Bull’s head did not tell him to assault
Ayala.
Although Bull testified that he had no memory problems,
Bull did not remember “anything whatsoever” about his
interaction with Mendoza. On the day of the incident, Bull’s
“drug screen was positive for methamphetamine and cannabis.”
Since he was incarcerated in January 2017, Bull had been taking
Zyprexa every day for “hearing voices and hallucinations.” Bull
testified that the medication helps “somewhat.”
b. Dr. Kojian’s testimony
Forensic psychologist, Dr. Haig Kojian, testified that, based
on his review of records and his interview with Bull, Bull “was in
. . . a mentally decompensated condition at the time of the
incident.” According to Dr. Kojian, Bull “was in an altered
mental state” while Bull was in the hospital on January 26, 2017.
Based on a review of records from the 5150 hold in July 2016, Dr.
Kojian testified that Bull “was talking to himself. Laughing to
himself. And had a very well-established delusional belief that
did he have this meeting with Mayor Garcetti and Donald
Trump, or something like that. . . . There was also information in
the record to show that he was paranoid. He mentioned
something about the Mexican mafia was after him, and that he
was trying to protect himself from them.” According to Dr.
Kojian, in July 2016 during Bull’s 5150 hold, a mental health
professional diagnosed Bull with “schizoaffective disorder and
delusional.” Dr. Kojian defined “schizoaffective [as] a
combination of schizophrenia and an affective condition, either
depression or mania. And so you’re on the schizophrenia
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spectrum. And so it’s a severe mental illness. It’s a psychosis
type of mental illness.” Dr. Kojian formed the opinion that Bull
“could have been suffering from paranoia” on January 26, 2017.
Dr. Kojian did not review the records from Bull’s first 5150 hold
in May 2016.
Bull told Dr. Kojian that he lost his temper on January 26,
2017 and that “he hadn’t taken any drugs” that day. Bull
specifically told Dr. Kojian that “he did not take”
methamphetamine. Bull also told Dr. Kojian that “he was
hearing voices” on January 26, 2017 “to attack them.” During his
interview with Bull, there was nothing to indicate that Bull was
not focused, paying attention, or listening carefully. Dr. Kojian
did not observe any evidence of psychosis, and Bull’s thinking
was clear, linear, and goal directed.
B. Jury Verdict and Sentencing
The trial occurred in November 2018. On November 29,
2018, the jury found Bull guilty of two counts of battery with
serious bodily injury (§ 243, subd. (d); counts 1 and 2), one count
of misdemeanor battery of a police officer (§§ 242, 243, subd. (b);
count 3), and one count of second degree murder (§ 187, subd. (a);
count 5). The jury found not true the hate-crime allegations. On
January 25, 2019, the trial court sentenced Bull to 18 years to life
in prison. Bull timely appealed.
DISCUSSION
A. Bull’s Ineffective Assistance of Counsel Claim Should
Be Presented in a Petition for Writ of Habeas Corpus
1. Applicable Law
a. Mental health diversion
Effective June 27, 2018, “the Legislature enacted sections
7
1001.35 and 1001.36 as part of Assembly Bill No. 1810 (2017-
2018 Reg. Sess.) . . . . [Citation.] Section 1001.36 gives trial
courts the discretion to grant pretrial diversion for individuals
suffering from certain mental health disorders. (§ 1001.36, subd.
(a).)” (People v. Frahs (2020) 9 Cal. 5th 618, 626 (Frahs).) “The
stated purpose of the diversion statute ‘is to promote all of the
following: [¶] (a) Increased diversion of individuals with mental
disorders to mitigate the individuals’ entry and reentry into the
criminal justice system while protecting public safety. [¶] (b)
Allowing local discretion and flexibility for counties in the
development and implementation of diversion for individuals
with mental disorders across a continuum of care settings. [¶]
(c) Providing diversion that meets the unique mental health
treatment and support needs of individuals with mental
disorders.’ (§ 1001.35, subds. (a)-(c).)” (Frahs, at p. 626.)
Section 1001.36 defines “pretrial diversion” as “the
postponement of prosecution, either temporarily or permanently,
at any point in the judicial process from the point at which the
accused is charged until adjudication, to allow the defendant to
undergo mental health treatment . . . .” (§ 1001.36, subd. (c).) If
a defendant is charged with a qualifying offense, a trial court
may grant pretrial diversion if it finds all of the following: (a) the
defendant suffers from a qualifying mental disorder; (b) the
mental disorder was a significant factor in the commission of the
charged offense; (c) in the opinion of a qualified mental health
expert, the defendant’s symptoms will respond to mental health
treatment; (d) the defendant consents to diversion and waives his
or her right to a speedy trial; (e) the defendant agrees to comply
with treatment as a condition of diversion; and (f) the defendant
will not pose an unreasonable risk of danger to public safety if
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treated in the community. (Id., subds. (b)(1)(A)-(F).)
If the six criteria in section 1001.36, subdivision (b)(1), are
met, and if the trial court “is satisfied that the recommended
inpatient or outpatient program of mental health treatment
will meet the specialized mental health treatment needs of the
defendant” (§ 1001.36, subd. (c)(1)(A)), the court may order
diversion into an approved mental health treatment program for
up to two years (Id., subds. (c)(1) & (3)). If the defendant
commits an additional offense or otherwise performs
unsatisfactorily in the diversion program, the court may reinstate
the criminal proceedings. (Id., subd. (d).) “If the defendant has
performed satisfactorily in diversion, at the end of the period of
diversion, the court shall dismiss the defendant’s criminal
charges that were the subject of the criminal proceedings at the
time of the initial diversion,” and “the arrest upon which the
diversion was based shall be deemed never to have occurred . . . .”
(Id., subd. (e).)
As originally enacted, section 1001.36 applied to all
defendants, including those charged with murder. (Frahs, supra,
9 Cal.5th at p. 626.) However, on September 30, 2018, section
1001.36 was amended effective January 1, 2019 “to specify that
defendants charged with certain crimes, such as murder and
rape, are ineligible for diversion.” (Frahs, at pp. 627, 635; see
§ 1001.36, subd. (b)(2), stats. 2018, ch. 1005, § 1, pp. 6635-6638.)
Thus, for the period from June 27, 2018 to December 31, 2018,
section 1001.36 did not exclude a defendant charged with murder
from eligibility for mental health diversion. In Frahs, supra, 9
Cal. 5th 618, the Supreme Court held that section 1101.36
“applies retroactively to cases in which the judgment is not yet
final. . . .” (Id. at pp. 624, 637.)
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b. Ineffective assistance of counsel
To establish ineffective assistance of counsel, a defendant
must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms,
and counsel’s deficient performance was prejudicial, that is, there
is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant. (People
v. Rices (2017) 4 Cal. 5th 49, 80; People v. Mickel (2016) 2 Cal. 5th
181, 198; People v. Sepulveda (2020) 47 Cal. App. 5th 291, 301; see
Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
“On direct appeal, if the record ‘“sheds no light on why
counsel acted or failed to act in the manner challenged,”’ we must
reject the claim ‘“unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (People v. Caro (2019) 7 Cal. 5th 463,
488; accord, People v. Bell (2019) 7 Cal. 5th 70, 125 [“‘[u]nless a
defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy”’”]; People v. Mickel,
supra, 2 Cal.5th at p. 198 [“a reviewing court will reverse a
conviction based on ineffective assistance of counsel on direct
appeal only if there is affirmative evidence that counsel had ‘“‘no
rational tactical purpose’”’ for an action or omission”].)
Accordingly, “except in those rare instances where there is no
conceivable tactical purpose for counsel’s actions, claims of
ineffective assistance of counsel should be raised on habeas
corpus, not on direct appeal.” (People v. Lopez (2008) 42 Cal. 4th
960, 972; see People v. Carrasco (2014) 59 Cal. 4th 924, 980-981
[“[u]sually, ineffective assistance of counsel claims are properly
10
decided in a habeas corpus proceeding rather than on appeal”];
People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266-267 [appellate
court should not find ineffective assistance of counsel unless all
facts relevant to that claim have been developed in the record];
People v. Avena (1996) 13 Cal. 4th 394, 419 [“‘[w]here the record
does not illuminate the basis for the challenged acts or omissions,
a claim of ineffective assistance is more appropriately made in a
petition for habeas corpus’”], italics omitted.)
2. Bull Has Not Met His Burden To Show
Ineffective Assistance of Counsel
Bull argues that he “was denied his Sixth Amendment
Constitutional Right to effective assistance of counsel due to
defense counsel’s failure to seek pretrial diversion based on
uncontradicted evidence that [Bull] was diagnosed with a
qualifying mental health condition at the time of the incident, his
actions were due to that mental health condition, and where
[Bull] appeared to be successfully treated with medication.” Bull
further argues, “[D]efense counsel’s failure to request 1001.36
pretrial mental health diversion, with the possibility of charges
being dismissed, at a time when section 1001.36 applied to
murder, was deficient performance. Could counsel make a valid
tactical decision to go to trial and present a weak voluntary
manslaughter defense to murder, where at best, the sentence for
that charge alone would be three, six, or 11 years?”
a. Deficient performance
We do not know why Bull’s counsel did not seek pretrial
mental health diversion. Certainly, “a defense attorney who fails
to adequately understand the available sentencing alternatives,
promote their proper application, or pursue the most
advantageous disposition for his client may be found
11
incompetent.” (People v. Scott (1994) 9 Cal. 4th 331, 351.)
However, while it is possible that defense counsel’s failure to
request diversion was due to ignorance of the diversion statute
enacted in June 2018, it is at least plausible that valid reasons
existed for not seeking pretrial diversion. For example, Bull may
not have consented to mental health diversion (see § 1001.36,
subd. (b)(1)(D) [“[t]he defendant consents to diversion”]) and
would have insisted on going to trial based on his belief that the
altercation with Ayala was “mutual.” (See In re Alvernaz (1992)
2 Cal. 4th 924, 936 [“a defendant possesses a constitutionally
protected right to participate in the making of certain decisions
which are fundamental to his or her defense”].) On the present
record, we do not know whether counsel discussed pretrial
diversion with Bull.
Bull’s counsel may also have determined that there was
insufficient evidence to support one or more of the requirements
for mental health diversion. There also could be other reasons
that reasonably led Bull’s counsel to conclude that the trial court
would have ruled that Bull was ineligible for mental health
diversion. “Under those circumstances, a reviewing court has no
basis on which to determine whether counsel had a legitimate
reason for making a particular decision, or whether counsel’s
actions or failure to take certain actions were objectively
unreasonable.” (People v. Mickel, supra, 2 Cal.5th at p. 198.) Nor
has Bull shown “affirmative evidence that counsel could have had
‘no rational tactical purpose’ for these decisions.” (Id. at p. 200.)
Accordingly, Bull’s claim is more appropriately decided in a
habeas corpus proceeding. (People v. Gray (2005) 37 Cal. 4th 168,
211 [rejecting claim of ineffective assistance of counsel because it
“is more appropriately raised in a petition for a writ of habeas
12
corpus”]; People v. Jones (2003) 29 Cal. 4th 1229, 1263 [issues
requiring review of matters outside the record are better raised
on habeas corpus rather than on direct appeal]; (People v.
Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 [a claim of
ineffective assistance of counsel relating to ‘““why counsel acted
or failed to act in the manner challenged’” is more appropriately
decided in a habeas corpus proceeding”].)
b. Prejudice
Even if Bull could satisfy the first prong of the test for
ineffective assistance of counsel, he cannot show that he
“‘“‘suffered prejudice to a reasonable probability.’”’” (People v.
Johnson (2016) 62 Cal. 4th 600, 653.) As the California Supreme
Court has observed, a reviewing court ‘“need not determine
whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”’ (People
v. Carrasco, supra, 59 Cal.4th at p. 982; accord, Strickland v.
Washington, supra, 466 U.S. at p. 697.) When the ineffective
assistance claim is based on the defense counsel’s failure to make
a motion, the defendant must demonstrate not only that the
motion would have been meritorious, but also that it is
reasonably probable that absent the omission, a determination
more favorable to the defendant would have resulted. (People v.
Mattson (1990) 50 Cal. 3d 826, 876-877; People v. Gonzalez (1998)
64 Cal. App. 4th 432, 438.)
On the present record, Bull has not shown that he could
have satisfied the requirements for mental health diversion. Dr.
Kojian did not offer opinions regarding the section 1001.36
13
requirements. For example, Dr. Kojian was not asked to opine
whether Bull would “not pose an unreasonable risk of danger to
public safety . . . if treated in the community.” (§ 1001.36, subd.
(b)(1)(F).) Nor was there evidence that any mental disorder was
“a significant factor” in Bull’s attacks on Ayala and Mendoza.
(Id., subd. (b)(1)(B).) Dr. Kojian testified that on the day of the
attacks Bull “was again in a mental decompensated state.”
However, as required by section 1001.36, Dr. Kojian did not
connect a “mental disorder” to the attacks on January 26, 2017.3
Further, there was no “opinion of a qualified mental health
expert” that Bull’s symptoms of mental health disorder
“motivating the criminal behavior would respond to mental
health treatment.” (Id., subd. (b)(1)(C).) Bull’s argument that
“[w]hen [Bull] receives proper care, he apparently responds
favorably and is nonviolent” is speculative. As the People point
out, Dr. Kojian testified that “delusions are difficult to treat.”
Bull has not established that he could have prevailed on a
pretrial diversion request. Therefore, Bull failed to sustain his
burden on prejudice. (In re Alvernaz, supra, 2 Cal.4th at p. 945
[“even if counsel’s performance was deficient, petitioner has
failed to sustain his burden on the issue of prejudice”]; People v.
Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 [appellate court
should not find ineffective assistance of counsel unless all facts
relevant to that claim have been developed in the record]; see
3 In Frahs, supra, 9 Cal. 5th 618, the Supreme Court held
that the defendant supported section 1001.36’s first threshold
eligibility requirement because “[a] clinical and forensic
psychologist testified that defendant suffers from a qualifying
mental disorder [citation], and opined that his behavior at the
[crime scene] was a consequence of this disorder.” (Id. at p. 640.)
14
generally People v. Caro (2019) 7 Cal. 5th 463, 489 [where
defendant “fail[ed] to establish that a motion to suppress
[evidence] would have been meritorious,” he could not show his
counsel was ineffective in failing to bring such motion]; People v.
Bell, supra, 7 Cal.5th at p. 126 [“[a] decision not to pursue futile
or frivolous motions does not make an attorney ineffective”].)
In sum, Bull’s claim of ineffective assistance of counsel is
more appropriately raised through a habeas corpus proceeding.
(People v. Carrasco, supra, 59 Cal.4th at pp. 980-981; People v.
Lopez, supra, 42 Cal.4th at p. 972; People v. Jones (2003) 30
Cal. 4th 1084, 1105.)4
DISPOSITION
The judgment is affirmed.
DILLON, J.
We concur:
PERLUSS, P. J. FEUER, J.
4 We are not suggesting that Bull is entitled to relief in a
habeas corpus proceeding. Further, although we also recognize
the People’s position that, given the amendment to section
1001.36, pretrial mental health diversion is no longer available to
Bull, we are not reaching the question whether relief potentially
available at the time of trial would still be available as a remedy
for ineffective assistance of counsel.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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