P. v. Zayas

Filed 4/11/19 P. v. Zayas CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
FAVIAN EDUARDO ZAYAS,
Defendant and
Appellant.
B290897
(Los Angeles County
Super. Ct. No.
MA069954)
APPEAL from judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Conditionally
reversed and remanded.
Roberta Simon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior

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Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, Noah P. Hill and
Theresa A. Patterson, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________________
The jury found defendant and appellant Favian
Eduardo Zayas guilty of attempted murder (Pen. Code,
§§ 664/187, sub. (a) [count 1]),1 and aggravated mayhem
(§ 205 [count 4]).2 It found true the allegation that Zayas
personally inflicted great bodily injury in commission of the
attempted murder (§ 12022.7, subd. (a)), and used a deadly
or dangerous weapon in both counts (§ 12022, subd. (b)(1)).
Zayas was sentenced to life in prison in count 4, plus
one year for the weapon enhancement. The trial court
imposed the middle term of seven years in count 1, plus
three years for the great bodily injury enhancement and an
additional year for the weapon enhancement, which it stayed
pursuant to section 654.
Zayas contends that: (1) his conviction must be
conditionally reversed because he is entitled to an eligibility
hearing under recently enacted Penal Code section 1001.36,
which gives trial courts discretion to grant pretrial diversion
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The information was amended to strike counts 2 and
3.

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for mental health treatment to qualified defendants; (2) his
counsel rendered ineffective assistance because he failed to
call an expert to testify regarding the impact his mental
disorder may have had on his ability to form the specific
intents necessary to convict him of murder and aggravated
mayhem; and (3) the trial court erred by instructing the jury
that it could convict him of assault with a deadly weapon
under the invalid legal theory that a box cutter is an
inherently deadly or dangerous weapon.
We agree that the trial court has discretion to consider
granting pretrial diversion to Zayas under section 1001.36,
which may include conducting a hearing to determine his
eligibility for mental health diversion, and we conditionally
reverse the judgment, so that the trial court may consider
whether to exercise its discretion. We further hold that
defense counsel did not render ineffective assistance by
failing to present expert testimony regarding the impact of
Zayas’s mental disorder, and hold that although the trial
court erred by instructing the jury that it could convict
Zayas if it found that a box cutter is an inherently deadly or
dangerous weapon, the error was harmless.
FACTS
On November 14, 2016, Zayas and his father, Jose,
were helping Jose’s friend Victor move his belongings from

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his house to a storage unit.3 At that time, Zayas had been
staying with his father for a week while Jose found him a
place to live. Jose was looking into the Covenant House in
Hollywood to get Zayas mental health and substance abuse
treatment. Before that Zayas had been staying with his
grandparents, but he moved out after an incident in which
the police were called and Zayas was hospitalized. Zayas
was schizophrenic and had a history of hearing voices and
trying to harm himself. He had been hospitalized pursuant
to Welfare and Institutions Code section 5150 on more than
one occasion.
During the move, Jose heard Zayas tell Victor that he
heard voices. Jose told him not to talk about things like that
because he had plenty of other things to talk about. After
they moved everything to the storage unit, Jose and Zayas
waited for Jose’s friend Emiliano to come and pick up the
moving truck, which he had lent them. Emiliano got a flat
tire on his way to the storage unit, so Jose, Zayas, and Victor
and Emiliano’s wife went to help him.
Emiliano called for assistance, and AAA driver James
Lorner arrived with a tow truck. Just after Lorner arrived,
Jose saw Zayas crying inside the truck with the flat tire.
Jose told his son to calm down and said they would leave
soon. Other than that, everything seemed normal. Victor
and Emiliano and his wife left, and Jose and Zayas stayed
3 The parties stipulated that Jose was unavailable at
trial. His preliminary hearing testimony was read to the
jury.

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with Lorner to change the flat tire. Nothing appeared out of
the ordinary. There was no interaction between Zayas and
Lorner. No one argued or got into a physical altercation.
Lorner was sitting on the spare tire loosening the lug nuts
and talking with Jose when Zayas appeared out of nowhere,
pulled back Lorner’s head, and slit his throat with a box
cutter.
Jose was shocked. He asked Zayas why he did it and
Zayas responded that he thought Jose told him to. Zayas
looked scared. Jose yelled at him to leave and then called
911 for help.
Lorner testified that prior to the attack he had no
interaction with Zayas. When Zayas cut his throat open it
felt “[j]ust like cutting open fish, and just a knife pain going
on in my whole neck area.” He “almost went into shock.” He
held his neck to try to slow the bleeding. Zayas stood over
him, smirking. Lorner asked Zayas why he had cut him.
Zayas gave him an “evil look” and smirked at him again.
Zayas was holding a box cutter.
Sergeant Daniel Welle of the Los Angeles County
Sheriff’s Department responded to the scene. When he
arrived, Lorner was laying on the ground bleeding with his
head propped up on a tire. Sergeant Welle pushed the tire
out of the way, causing the wound on Lorner’s neck to open
up. His esophagus and muscular and venous structures
were exposed, and he was bleeding profusely. Sergeant
Welle tore off part of Lorner’s shirt and wrapped it around

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his neck to control the bleeding. Fire personnel arrived soon
afterwards and Lorner was taken to the hospital.
Lorner underwent surgery. He suffered long-term
effects from the attack, including scarring, pain, impaired
neck movement, and changes in his voice.
Jose spoke with law enforcement on the day of the
incident. At that time, Jose told the officer that Zayas had
told him, “This is the last time you’re going to see me.” Jose
later testified that Zayas had not made that statement to
him. Jose explained he had attributed the statement to
Zayas because he was worried Zayas was going to harm
himself and he wanted the officers to look for him.
Zayas was apprehended by the police later that night
and interviewed by Detectives Christopher Dimmitt and
Rick Manes of the Los Angeles County Sheriff’s Department.
Zayas said the voices told him to cut Lorner, but he was not
going to do it until he thought he heard Lorner say “I’m
gonna blow your head off and some shit.” He “snapped” and
slit Lorner’s throat. Afterwards he took a bus to his
grandparent’s house. The box cutter was still in his pocket,
so he threw it out the bus window somewhere on the
freeway.
Zayas said he had been diagnosed with schizophrenia,
bipolar disorder, and PTSD. He had been to the “psych
hospital” after he tried to hang himself “a few times” when
he was fifteen. He used methamphetamine “a lot.” He did
two “lines” on the day of the attack, and had been “doin it for

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like a week straight.” He had stopped taking his medication
and he had not slept in about three days.
Defense
Jose testified that Zayas has never been a violent
person. About five months prior to the attack, Zayas heard
voices and cut himself deeply enough to cause bleeding. A
week before the attack Zayas was involuntarily hospitalized
under a Welfare and Institutions Code section 5150 hold.
During one episode, Jose was on the phone with Zayas for
five hours urging Zayas not to believe the voices that said
they had weapons and were going to get him.
Deputy Sheriff Jesus Valenzuela testified that on July
5, 2016, after responding to a call that Zayas was suicidal, he
put Zayas on a Welfare and Institutions Code section 5150
hold, because he believed Zayas was mentally ill and needed
treatment.
Zayas introduced medical records reflecting that he
had been placed on a Welfare and Institutions Code section
5150 hold July 5, 2016; undergone treatment at Antelope
Valley Hospital on November 7, 2016, for mental illness,
visual and auditory hallucinations; and had a history of
methamphetamine use.

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Rebuttal
The prosecution introduced medical records
documenting Zayas’s violent tendencies.
DISCUSSION
Pretrial Diversion for Mental Health Disorders
In supplemental briefing to this court, Zayas contends
that his conviction must be conditionally reversed because
he is entitled to a hearing under recently enacted Penal Code
section 1001.36, which allows qualifying defendants to
participate in pretrial diversion and receive mental health
treatment in lieu of prosecution. (§ 1001.36, subd. (c).)
Relying on People v. Frahs (2018) 27 Cal.App.5th 784
(Frahs), review granted Dec. 27, 2018, S252220,4 Zayas
argues that the Legislature intended for the statute, which
provides “ameliorating benefits” to defendants, to apply
retroactively in cases like his, in which the judgment was not
final at the time the statute was enacted. The Attorney
General counters that the language of subdivision (c) of
4 See California Rules of Court, rule 8.1115(e)(1)
[“Pending review and filing of the Supreme Court’s opinion,
unless otherwise ordered by the Supreme Court . . . , a
published opinion of a Court of Appeal in the matter has no
binding or precedential effect, and may be cited for
potentially persuasive value only”].

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section 1001.36 demonstrates that the Legislature intended
the enactment to operate prospectively, i.e., the enactment
would not apply to cases such as this one in which there has
already been an adjudication.
We recognize that the Supreme Court will have the
final say on this question. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) However, we
must address the issue while it is pending in the Supreme
Court. We hold that section 1001.36 is applicable under the
reasoning set forth in In re Estrada (1965) 63 Cal.2d 740
(Estrada), and People v. Superior Court (Lara) (2018) 4
Cal.5th 299. We conditionally reverse Zayas’s convictions
and sentence, and remand to allow the trial court to exercise
its discretion to grant diversion or to conduct an eligibility
hearing for pretrial diversion, if it deems a hearing is
appropriate.
Section 1001.36
Section 1001.36, which became effective on June 27,
2018, provides for pretrial diversion for defendants
diagnosed with certain mental disorders, including, but not
limited to, bipolar disorder, schizophrenia, schizoaffective
disorder, or post-traumatic stress disorder, in lieu of trial.
(§ 1001.36, subds. (a) & (c).) Defendants who are diagnosed
with antisocial personality disorder, borderline personality
disorder, or pedophilia, are excluded from participation in
pretrial diversion (§ 1001.36, subd. (b)(1)(A)), as are

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defendants charged with certain enumerated offenses
(§ 1001.36, subd. (b)(2)).
“On an accusatory pleading alleging the commission of
a misdemeanor or felony offense, the court may, after
considering the positions of the defense and prosecution,
grant pretrial diversion . . . .” (§ 1001.36, subd. (a).)
“‘[P]retrial diversion’ means 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).)
To qualify, the defendant must meet six criteria: (1)
the defendant must demonstrate he or she suffers from a
qualifying mental disorder “as identified in the most recent
edition of the Diagnostic and Statistical Manual of Mental
Disorders,” the evidence of which must include “a recent
diagnosis by a qualified mental health expert;” (2) the court
must be “satisfied that the defendant’s mental disorder was
a significant factor in the commission of the charged
offense;” (3) “[i]n the opinion of a qualified mental health
expert, the defendant’s symptoms of the mental disorder
motivating the criminal behavior would respond to mental
health treatment;” (4) with certain exceptions, the defendant
must consent to diversion and waive his or her right to a
speedy trial; (5) the defendant must agree to comply with
treatment; (6) the court must be “satisfied that the
defendant will not pose an unreasonable risk of danger to

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public safety . . . if treated in the community.” (§ 1001.36,
subds. (b)(1)(A)–(F)).
“At any stage of the proceedings, the court may require
the defendant to make a prima facie showing that the
defendant will meet the minimum requirements of eligibility
for diversion and that the defendant and the offense are
suitable for diversion. The hearing on the prima facie
showing shall be informal and may proceed on offers of proof,
reliable hearsay, and argument of counsel. If a prima facie
showing is not made, the court may summarily deny the
request for diversion or grant any other relief as may be
deemed appropriate.” (§ 1001.36, subd. (b)(3).)
If a trial court determines that a defendant otherwise
qualifies for diversion, it must then determine whether “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 period during which criminal proceedings
against the defendant may be diverted shall be no longer
than two years.” (§ 1001.36, subd. (c)(3).) Criminal
proceedings may be reinstated under certain circumstances,
including when the defendant is charged with a crime, has
engaged in criminal activity, or is not performing adequately
in the mental health treatment program. (§ 1001.36, subd.
(d).)
Once a defendant successfully completes the diversion
program, the charges will be dismissed and neither the
records of his or her arrest or diversion may be used to deny

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the defendant “any employment, benefit, license, or
certificate.” (§ 1001.36, subds. (e) & (f).) Additionally, with
few exceptions, no records relating to the defendant’s mental
health in connection with participation in the diversion
program may be used in any other proceeding without the
defendant’s consent. (§ 1001.36, subd. (h).)
Retroactivity
In general, there is a presumption that statutes apply
prospectively, unless the Legislature has expressed an intent
for a statute to apply retroactively. (Lara, supra, 4 Cal.5th
at p. 307.) If the language of a statute is ambiguous, it is
construed to apply prospectively. (Ibid.; § 3.) In Estrada,
the Supreme Court created an exception to this general rule,
holding that when a new statute reduces the punishment for
criminal conduct and its language is ambiguous with respect
to whether it is to have retroactive effect, the fact that the
statute lessens punishment becomes “one consideration of
paramount importance” in its interpretation, and leads to
“an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter
penalty now deemed to be sufficient should apply to every
case to which it constitutionally could apply.” (Estrada,
supra, 63 Cal.2d at pp. 744–745.) Estrada has been applied
in numerous situations in which a new statute lessened or
potentially lessened the penalty for a specific crime, but

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until recently it had not been held applicable in other
contexts. (Lara, supra, at p. 303.)
Last year, in Lara, supra, 4 Cal.5th 299, the Supreme
Court expanded Estrada’s reasoning and held that
Proposition 57 applies to all cases in which judgment is not
yet final. Proposition 57 amended the Welfare and
Institutions Code to require that all cases against juveniles
be filed in juvenile court rather than in criminal court.
(Welf. & Inst. Code, § 602, subd. (a).) Although prosecutors
can request that a hearing be held to determine whether a
case is appropriate for transfer to criminal court under
certain circumstances, prosecutorial discretion with respect
to filing has been eliminated. (Id., § 707, subd. (a).) Lara
explained that when the Legislature or electorate is silent
regarding retroactivity, courts must look to rules of statutory
construction to discern whether legislation was intended to
be retroactive. (Lara, supra, at p. 307.) Because nothing in
Proposition 57 supported the conclusion that the electorate
intended it to apply prospectively only, the Supreme Court
looked to other sources of information, specifically the stated
purpose of the statute. (Id. at p. 309.) It concluded that the
statute’s stated purpose supported the conclusion that
Proposition 57 was intended to be retroactive, but was not
itself decisive. (Ibid.)
The Lara court then considered whether Estrada’s
inference of retroactivity was applicable. It reasoned:
“Estrada is not directly on point; Proposition 57 does not
reduce the punishment for a crime. But its rationale does

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apply. The possibility of being treated as a juvenile in
juvenile court—where rehabilitation is the goal—rather than
being tried and sentenced as an adult can result in
dramatically different and more lenient treatment.
Therefore, Proposition 57 reduces the possible punishment
for a class of persons, namely juveniles. For this reason,
Estrada’s inference of retroactivity applies. As nothing in
Proposition 57’s text or ballot materials rebuts this inference,
we conclude this part of Proposition 57 applies to all
juveniles charged directly in adult court whose judgment
was not final at the time it was enacted.” (Lara, supra, 4
Cal.5th at pp. 303–304, italics added.)
Analysis
In his supplemental opening brief, Zayas contends that
he is entitled to conditional reversal to afford him a
diversion hearing under section 1001.36. Citing Lara, and
the retroactivity rule set forth in Estrada, Zayas reasons
that section 1001.36 provides an ameliorative benefit to a
class of defendants whose mental illness contributed to the
commission of their offenses. Zayas therefore concludes that
the Estrada rule requires application of section 1001.36 to
his case because the judgment against him is not yet final.
The Attorney General disagrees, arguing that
subdivision (c) expressly limits the application of section
1001.36 to cases in which there can be a postponement of
prosecution prior to “adjudication.” Once a criminal

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proceeding has been adjudicated, however, the Attorney
General reasons that postponement for diversion is no longer
available under the plain language of the enactment.
Zayas cites the recent decision in Frahs in support of
his position.5 In Frahs, the Fourth District, Division Three,
was faced with the question of whether newly enacted
section 1001.36 applies retroactively to all defendants whose
appeals are not yet final. (Frahs, supra, 27 Cal.App.5th at p.
787.) A jury found Frahs guilty of two counts of robbery.
(Id. at p. 786.) While Frahs’s case was pending on appeal,
the Legislature enacted section 1001.36. (Id. at p. 787.) On
appeal, Frahs contended, among other things, that the
mental health diversion program available under section
1001.36 should apply retroactively. (Id. at p. 788.) The
Court of Appeal agreed. Citing Lara, the Frahs court
likened section 1001.36 to Proposition 57 with respect to
retroactivity, because section 1001.36 does not lessen the
5 On December 27, 2018, the Supreme Court ordered
review of Frahs on its own motion to address the following
questions: “(1) Does Penal Code section 1001.36 apply
retroactively to all cases in which the judgment is not yet
final? (2) Did the Court of Appeal err by remanding for a
determination of defendant’s eligibility under Penal Code
section 1001.36?” (Issues Pending Before the California
Supreme Court in Criminal Cases (Apr. 5, 2019) California
Courts
<https://www.courts.ca.gov/documents/APR0519crimpend.pd
f> (as of Apr. 5, 2019), citing People v. Frahs, review granted
Dec. 27, 2018, S52220.)

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punishment for a specific crime, but has the effect of
reducing the possible punishment for a class of persons. (Id.
at p. 791.) It held that the Legislature intended for section
1001.36 to apply retroactively to cases that were not final on
appeal before the statute’s effective date. (Ibid.)
In reaching this conclusion, the Frahs court rejected
the Attorney General’s textual argument that the
Legislature’s intent in enacting section 1001.36 was more
limited: “The Attorney General argues that: ‘Subdivision (c)
of the statute defines “pretrial diversion” as the
“postponement or [sic] prosecution, either temporarily or
permanently, at any point in the judicial process from the
point at which the accused is charged until adjudication.”
This language indicates the Legislature did not intend to
extend the potential benefits of . . . section 1001.36’ as
broadly as possible. We disagree. The fact that mental
health diversion is available only up until the time that a
defendant’s case is ‘adjudicated’ is simply how this particular
diversion program is ordinarily designed to operate.” (Frahs,
supra, 27 Cal.App.5th at p. 791.) It held that “although
Frahs’[s] case has technically been ‘adjudicated’ in the trial
court, his case is not yet final on appeal. Thus, we will
instruct the trial court—as nearly as possible—to
retroactively apply the provisions of section 1001.36, as
though the statute existed at the time Frahs was initially
charged.” (Ibid.)
We agree with Frahs’s conclusion that the rule in
Estrada, supra, 63 Cal.2d 740, strongly suggests that section

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1001.36 should apply retroactively. Like the amendments to
Welfare and Institutions Code sections 602 and 707
discussed in Lara, section 1001.36 provides a potential
ameliorative benefit to a class of persons—in this case
defendants diagnosed with certain mental disorders. And
like the amendments in Lara, section 1001.36 is silent with
respect to retroactivity. While we recognize that the
language of section 1001.36 clearly contemplates prospective
application of its provisions and does not address their
retroactive application, as was the case with Proposition 57,
this does not preclude or limit the statute’s retroactive
application in any way. As the Supreme Court
acknowledged in Lara, “the appropriate remedy can be
somewhat complex . . . [but] . . . potential complexity . . . is
no reason to deny [a hearing that may result in ameliorative
benefits to the defendant].” (Lara, supra, 4 Cal.5th at p.
313.) Under the reasoning of Estrada and Lara, we conclude
that the ameliorative benefits of a new criminal statute such
as section 1001.36 should be made available to all eligible
criminal defendants whose convictions are not yet final on
appeal.
With respect to Zayas in particular, the record
demonstrates that he was diagnosed with schizophrenia by a
mental health professional before sentencing, and that the
history the mental health professional reviewed indicated he
had been diagnosed with the disorder by other mental health
professionals prior to commission of the crimes. The offenses
of which Zayas was charged and convicted, although violent

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and serious, do not currently exclude him from participation
in pretrial diversion, and given that the Legislature has
chosen to extend the potential ameliorative benefits of
section 1001.36 to defendants charged with attempted
murder and aggravated mayhem, we cannot say definitively
that these particular crimes were so heinous that remand
would be futile. Zayas raised the issue of his mental
disorder as a defense at trial and offered significant evidence
to support the defense. It is notable that in a hearing
outside the presence of the jury, the court stated to the
parties, “I think it is undisputed that he had mental health
issues. He had some sort of a breakdown five months prior.”
Given that Zayas was not charged with a disqualifying
offense, was diagnosed with a qualifying mental disorder
during trial, and presented significant evidence suggesting
that his mental disorder may have contributed to his
commission of the crimes, we conclude that conditional
remand for the trial court to consider whether to exercise its
discretion to grant diversion, including whether to hold an
eligibility hearing, is appropriate. In remanding the matter,
we express no opinion as to how the trial court should
exercise its discretion, only the opinion that under these
particular facts Zayas has demonstrated that there is a
possibility that an eligibility hearing and grant of diversion
may be appropriate.6
6 In light of our conclusion that remand is appropriate,
we need not address Zayas’s argument that Equal Protection
requires that he be afforded an eligibility hearing.

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Expert Testimony on Mental State
Zayas contends that counsel rendered ineffective
assistance because he failed to call an expert to testify
regarding the impact Zayas’s mental disorder may have had
on his ability to form the specific intent necessary to convict
him of attempted murder and aggravated mayhem.
Specifically, Zayas argues his counsel could have called an
expert to explain Zayas’s specific mental health issues and to
testify generally about how psychosis and hallucinations
may affect perception of reality. We reject the contention, as
Zayas has failed to show that counsel’s tactical decision fell
below an objective standard of reasonableness or that he was
prejudiced by counsel’s allegedly deficient performance.
Proceedings
Prior to trial, Zayas’s counsel had Zayas evaluated by a
clinical psychologist, Dr. Stephen Bindman, who prepared a
written report of Zayas’s mental health history and issues.
During trial, counsel discussed with the court issues relating
to potential testimony by Dr. Bindman and indicated counsel
was consulting with Dr. Bindman. However, counsel
ultimately informed the court that he would not be calling
Dr. Bindman and instead would be introducing the relevant
medical records. Neither Dr. Bindman’s testimony nor his
report were offered at trial.

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In closing argument, Zayas’s counsel argued that the
jury should acquit Zayas of the specific intent crimes,
attempted murder and aggravated mayhem, because the
People failed to prove Zayas formed the specific intent to kill
or permanently disfigure Lorner. Counsel argued that
Zayas’s medical records, the testimony of Jose and Deputy
Valenzuela established that Zayas suffers from mental
illness and that Zayas “snapped,” and attacked Lorner
because of that illness.
Legal Principles
Generally, we will not reverse a conviction on the basis
of ineffective assistance of counsel unless the defendant
establishes: (1) “‘counsel’s representation fell below an
objective standard of reasonableness;’” and (2) the defendant
was prejudiced by counsel’s actions. (People v. Foster (2003)
111 Cal.App.4th 379, 383.) “‘If the defendant makes an
insufficient showing on either one of these components, the
ineffective assistance claim fails.’ [Citations.]” (Ibid.)
“Tactical errors are generally not deemed reversible,
and counsel’s decisionmaking must be evaluated in the
context of the available facts. (Strickland v. Washington
[(1984)] 466 U.S. [668,] 690.) To the extent the record on
appeal fails to disclose why counsel acted or failed to act in
the manner challenged, we will affirm the judgment ‘unless
counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory

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explanation . . . .’ (People v. Pope [(1979)] 23 Cal.3d [412,]
426, fn. omitted.) Finally, prejudice must be affirmatively
proved; the record must demonstrate ‘a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ (Strickland v.
Washington, supra, 466 U.S. at p. 694; People v. Ledesma
[(1987)] 43 Cal.3d [171,] 217–218.)” (People v. Bolin (1998)
18 Cal.4th 297, 333.)
Analysis
In support of his contention, Zayas relies on People v.
Herrera (2016) 247 Cal.App.4th 467 (Herrera) and People v.
Cortes (2011) 192 Cal.App.4th 873 (Cortes). Both cases held
that it was prejudicial error for the trial court to exclude
expert testimony regarding the defendant’s mental
disorder—other than the expert’s testimony that the
defendant did or did not have the mental state required for
the charged offense at the time he or she committed it.
(Herrera, supra, at pp. 474–480; Cortes, supra, at pp. 902–
914.) Zayas also discusses sections 28 and 29, which
delineate the type of testimony that may be given with
respect to a defendant’s mental state or mental disorder, to

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demonstrate that it is permissible to offer testimony related
to the issue.7
But whether certain testimony would have been
admissible and whether the trial court would have erred in
excluding an area of testimony are very different questions
than those presented—i.e., could counsel have had any
reasonable basis not to present such testimony and would
the failure to present the testimony have been prejudicial?
This is not a case where counsel appears to have missed an
issue, or outright failed to consider calling an expert. To the
contrary, counsel sought and obtained a psychological
evaluation of Zayas, and discussed with the court the
possibility of offering Dr. Bindman’s testimony at trial. The
fact that counsel elected not to call Dr. Bindman, or any
7 “Evidence of mental disease, mental defect, or mental
disorder is admissible solely on the issue of whether or not
the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought,
when a specific intent crime is charged.” (§ 28, subd. (a).)
“[A]n expert may not offer an opinion regarding whether the
defendant had the capacity to form the intent required for
the crime, or whether the defendant actually did form the
requisite intent.” (People v. Smithey (1999) 20 Cal.4th 936,
960; § 29 [“In the guilt phase of a criminal action, any expert
testifying about a defendant’s mental illness, mental
disorder, or mental defect shall not testify as to whether the
defendant had or did not have the required mental states”]; §
28, subd. (a) [“Evidence of mental disease, mental defect, or
mental disorder shall not be admitted to show or negate the
capacity to form . . . intent”].)

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other expert, instead making arguments from medical
records and other trial testimony, suggests this was a
tactical decision. Counsel was not asked why he made the
tactical decision not to call an expert, and Zayas offers no
evidence that an expert’s testimony would have assisted his
defense.8 On this record, it is impossible to know what an
expert witness would or would not have said or whether the
effect would have been helpful or detrimental to Zayas’s
case. Zayas must “do more than surmise that defense
experts might have provided more favorable testimony.”
(People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5; see also
People v. Cunningham (2001) 25 Cal.4th 926, 1004–1005.)
The record does not reflect the absence of a satisfactory
explanation for counsel’s decision to forgo expert testimony,
or the probability of a more favorable result for Zayas had
such an expert testified. Accordingly, he has failed to
establish ineffective assistance.
Assault with a Deadly Weapon Instruction
Zayas contends that the jury was erroneously
instructed under CALCRIM No. 3145 that it could find true
the allegations that he used a deadly or dangerous weapon
in the commission of the crimes in counts 1 and 2 (§ 12022,
8 Counsel submitted Dr. Bindman’s report to the court
in connection with sentencing. On appeal, Zayas makes no
argument as to how any specific information in that report
would have benefitted him at trial.

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subd. (b)(1)) if it found that the box cutter was an
“inherently deadly or dangerous weapon,” which was not a
valid legal theory. Zayas argues that the error was
prejudicial and therefore requires reversal. We agree that
CALCRIM No. 3145 states an erroneous legal theory, but
conclude that the error was harmless in this case.
To consider the two allegations of using a dangerous or
deadly weapon, the jury was required to determine whether
the box cutter was a dangerous or deadly weapon. It was
instructed under CALCRIM No. 3145 that: “A deadly or
dangerous weapon is any object, instrument, or weapon that
is inherently deadly or dangerous or one that is used in such
a way that it is capable of causing and likely to cause death
or great bodily injury.”
“An ‘“inherently deadly or dangerous’” weapon is a
term of art describing objects that are deadly or dangerous
in ‘“the ordinary use for which they are designed,’” that is,
weapons that have no practical nondeadly purpose. (People
v. Perez (2018) 4 Cal.5th 1055, 1065.)” (People v. Stutelberg
(2018) 29 Cal.App.5th 314, 318–319 (Stutelberg).) The jury
was not instructed regarding this definition.
A box cutter is not an inherently deadly or dangerous
weapon as a matter of law. (People v. Aledamat (2018) 20
Cal.App.5th 1149, 1153, review granted July 5, 2018,
S248105 (Aledamat); Stutelberg, supra, 29 Cal.App.5th at p.
317.) It was therefore error to instruct the jury regarding
this invalid legal theory. (See Aledamat, supra, at p. 1153
[error to give inherently deadly weapon instruction because

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box cutter not inherently deadly as a matter of law];
Stutelberg, supra, at p. 318 [same].)
The question is whether the error was prejudicial. The
correct standard for evaluating prejudice is an issue upon
which decisions of the Courts of Appeal conflict. (Stutelberg,
supra, 29 Cal.App.5th at pp. 319–321 [applying the beyond a
reasonable doubt standard]; Aledamat, supra, 20
Cal.App.5th at p. 1154 [requiring affirmative showing that
no juror relied on invalid legal theory].) The People advocate
applying the beyond a reasonable doubt standard; Zayas
argues in support of the more stringent standard requiring
an affirmative showing that no juror relied on the invalid
theory. Our Supreme Court has granted review to resolve
the issue. (People v. Aledamat, review granted July 5, 2018,
S248105.)
Here, the error is harmless under either standard. The
jury was instructed on both a correct and incorrect legal
theory, and there can be no doubt that it actually relied on
the valid theory that Zayas used the box cutter in such a way
that it was capable of causing and likely to cause death or
great bodily injury.
At trial, the only contested issue was intent. Defense
counsel argued that Zayas had no motive to harm the AAA
driver and that he lacked the specific intent necessary to
commit either of the charged crimes because he was
mentally ill. Counsel conceded that Zayas committed the
lesser included offense of mayhem and that the weapons
allegations were true: “I’m asking you to convict him of

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mayhem, which is a general intent crime which punishes
people no matter if they have a mental illness or not. And
obviously, the weapon allegation that’s attached. That’s also
a general intent crime. There’s no defense to that, and you
can’t consider mental illness when dealing with those
particular crimes.” In addition to finding the weapons
enhancements true, the jury found true the allegation in
count 1 that Zayas personally inflicted great bodily injury.
In light of the complete lack of argument or evidence
that Zayas did not use the box cutter “in such a way that it
[wa]s capable of causing and likely to cause death or great
bodily injury” and the jury’s finding that Zayas actually
caused great bodily injury, it is inconceivable that any juror
relied on the invalid legal theory.

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DISPOSITION
The judgment is conditionally reversed and the cause
is remanded for the trial court to consider whether to
exercise its discretion to grant pretrial diversion under
section 1001.36, including whether to conduct a hearing to
determine Zayas’s eligibility. If the court grants Zayas
pretrial mental health diversion, and Zayas successfully
completes diversion, the court shall dismiss the charges in
accordance with section 1001.36, subdivision (e). If either of
these conditions is not met, the trial court shall reinstate the
judgment.
MOOR, J.
WE CONCUR:
RUBIN, P. J.
KIM, J.

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