Filed 1/21/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMONTE SHERMALE BANNER,

Defendant and Appellant.

F079770

(Super. Ct. No. BF169096A)

OPINION

In Re

LAMONTE SHERMALE BANNER,

On Habeas Corpus.

F081144

(Super. Ct. No. BF169096A)

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, 

Judge.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of sections III, IV and V.
2.

Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOooLamonte Shermale Banner was convicted by jury of two attempted robberies for a 

single act involving two restaurant employees. He raises four claims on appeal

challenging one conviction and the judgment.

One, did the court err in not considering mental health diversion? (See Pen. 

Code,1 § 1001.36.) Two, was Banner’s counsel ineffective in failing to request mental 

health diversion? Three, is the second attempted robbery conviction sufficiently proven? 

Four, did the court err in ordering certain fines and fees as part of the judgment? We find

no merit in these claims and will affirm.

In a separately filed habeas petition,2 Banner adds to the ineffective counsel claim. 

For reasons explained below, we will deny the petition.

BACKGROUND

Charges

The Kern County District Attorney charged Banner with two counts of attempted 

robbery (§ 212.5). The charges included allegations of prior strike and prior serious 

felony convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667, subd. (a).) 

Trial Evidence

The facts are simple. Banner entered a restaurant and waited in line several 

minutes behind multiple customers.3 Two employees helped each customer. When 

1 Statutory references are to the Penal Code unless otherwise stated.

2 We ordered the appeal and petition consolidated for decision.

3 These specific facts are based on a video surveillance exhibit. 
3.

Banner reached the cash register at the front of the line, he produced a toy4 firearm and 

demanded money from the employee operating the register. That employee did not 

believe the firearm was real and refused to comply. 

A second employee, standing near the register and across from Banner,5 ran away 

in fear. Banner subsequently left emptyhanded and was arrested nearby a short time 

later. He denied committing the crime. 

Verdict and Sentence

Banner was convicted as charged.6 He was sentenced to serve nine years in state 

prison. 

DISCUSSION

We first address Banner’s appellate claims and then turn to the habeas petition. 

Finding no prejudicial error, we affirm the judgment and deny the petition.

I. No Sua Sponte Duty to Consider Mental Health Diversion

Banner argues “[t]he trial court erroneously violated its duty to consider [his] 

eligibility for pretrial mental health diversion under section 1001.36.” He asserts “[t]he 

trial court had a sua sponte duty to consider ... eligibility for mental health diversion ....” 

The People maintain “[s]ection 1001.36 contains no language mandating the court 

to entertain diversion in any case.” They also claim Banner did not otherwise meet all 

criteria for diversion. 

We agree with the People. Section 1001.36 does not confer a sua sponte duty on 

trial courts to consider mental health diversion. Nonetheless, the record reveals the trial

4 It is unclear whether the firearm was real because it was never recovered. The 

district attorney did not charge a firearm enhancement and one victim did not believe it 

was real. For simplicity, we will assume it was a toy.

5 The employee’s proximity to Banner and the cash register is based on video 

evidence. 

6 The court found the prior conviction allegations true in a bifurcated trial.
4.

court was mindful of section 1001.36 and did not believe Banner’s mental health played a 

role in this crime.

A. Additional Background

At the sentencing hearing, the court announced it had reviewed “several hundred 

pages” of “mental health records ....” It found Banner’s prior “participation in 

[treatment] was inconsistent ....” The court noted Banner’s prior “support plan[s] ... 

failed,” “believe[d] [he did] have mental health issues,” and expressed appreciation for 

the Legislature’s enactment of section 1001.36. Finally, the court concluded “the fact 

[Banner] was able to conduct the crime in the way he did does not mean that he does not 

suffer from a mental health issue. It may just mean that it was somewhat in abeyance at 

the time ....” 

B. Relevant Statutory Language

Section 1001.36 provides, in part, a “court may, after considering the positions of 

the defense and prosecution, grant pretrial diversion to a defendant,” if, among other 

factors, “[t]he court is satisfied that the defendant’s mental disorder was a significant 

factor in the commission of the charged offense ....” Another factor involves the 

“defendant[’s] consent[] to diversion and waive[r]” of his or her constitutional “right to a 

speedy trial ....” (See § 1001.36, subd. (b)(1) [listing factors].)

C. Analysis

Based on section 1001.36, Banner presents three statutory-construction arguments 

in concluding trial courts have a “sua sponte duty” to consider mental health diversion. 

We consider each in turn.

First, Banner claims a defendant’s consent to diversion is irrelevant if the statute 

requires a request for diversion. In other words, why would the statute require consent if 

the defendant is required to invoke diversion? He bases his claim on the canon “a statute 

should not be interpreted in a way that would render other provisions of the statute” 

surplusage. (E.g., Ennabe v. Manosa (2014) 58 Cal.4th 697, 719 [“ ‘Courts should give 
5.

meaning to every word of a statute if possible, and should avoid a construction making 

any word surplusage.’ ”].) His interpretation, however, renders other parts of the statute

surplusage.

For example, section 1001.36, subdivision (b)(3), states:

“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.” (Emphasis added.)

This section undoubtedly contemplates a “request for diversion” originating in the 

defendant. 

Banner’s interpretation would also call into question the Legislature’s mandate

that “[e]vidence of the defendant’s mental disorder shall be provided by the defense ....” 

(§ 1001.36, subd. (b)(1)(A).) For this reason, “ ‘like all ... interpretive canons, the canon 

against surplusage is a guide to statutory interpretation and is not invariably 

controlling.’ ” (People v. Raybon (2021) 11 Cal.5th 1056, 1070, fn. 10.)

Next, Banner argues “[t]he only way to harmonize the phrases ‘the court may, 

after considering the positions of the defense and prosecution’ [citation] and ‘[t]he 

defendant consents to diversion’ [citation] is to interpret the statute as imposing a sua 

sponte duty on the trial court to consider the defendant’s eligibility for pretrial 

diversion.”7 We discern no disharmony in these phrases. Indeed, Banner’s interpretation

injects disharmony into the statute by ignoring the paragraph describing a “request for 

7 This point is based on the canon courts “ ‘ “must harmonize ‘the various parts of 

a statutory enactment ... by considering the particular clause or section in the context of 

the statutory framework as a whole.’ ” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 961.)
6.

diversion” and requiring the defendant to prove eligibility for diversion. (See § 1001.36, 

subd. (b)(3).) If the court is required to unilaterally consider diversion, then a “request 

for diversion” is without substance.

Finally, Banner states, “[I]f the Legislature intended for the defendant to make a 

request for pretrial diversion, the Legislature would have included such a requirement in 

the statute.”8 But the Legislature clearly did not mandate courts to sua sponte consider 

mental health diversion in every case. It could have simply included such a requirement 

in the statute if that was its intent; it did not.

In our view, the Legislature crafted a scheme wherein the diversionary interest 

originates in the defendant or someone other than the defendant, e.g., counsel,9 the 

prosecutor,10 or the judge.11 In those situations, a defendant justifiably professing his or 

her innocence might well decline diversion and choose instead to put the People to their 

burden of proof. Nowhere, however, does the scheme mandate a sua sponte duty for trial 

courts to consider mental health diversion. After all, a defendant (or his or her counsel) is 

often best positioned to know whether mental health diversion is an appropriate outcome. 

(See People v. Graham (2021) 64 Cal.App.5th 827, 835, review granted Sept. 1, 2021, 

S269509 [“the onus is placed on the defendant to raise the issue of diversion”].)

8 This argument is based on a commonsense maxim. (See, e.g., People v. 

Hillhouse (2003) 109 Cal.App.4th 1612, 1619 [“ ‘Had the Legislature intended 

otherwise, it plainly knew how to do so.’ ” ].)

9 In an ideal world, counsel and defendant’s views on diversion would perfectly 

align. In reality, those views might differ even when counsel believes he or she is acting 

in the client’s best interests.

10 A prosecutor might, for example, believe diversion is a suitable resolution after 

garnering further information not readily available when the charges were filed.

11 A scenario in which this could occur is where the defendant is mentally 

incompetent to stand trial. Section 1001.36 addresses this possibility. (See § 1001.36, 

subd. (b)(1)(D) [consent requirement dispensed with when defendant mentally 

incompetent].)
7.

Even if we assume trial courts had a sua sponte duty to consider mental health 

diversion, Banner would still not prevail. “The California Constitution prohibits a court 

from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ ” 

(In re Celine R. (2003) 31 Cal.4th 45, 59—60.) This means reversal is appropriate “only 

if the reviewing court finds it reasonably probable the result would have been more 

favorable to the appealing party but for the error.” (Ibid.) We do not.

We reach this conclusion because the trial court here did not believe Banner’s 

mental health was a significant factor in this crime. Such belief is required to grant 

diversion. (§ 1001.36, subd. (b)(1)(B).) The limited remedy described in People v. 

Frahs (2020) 9 Cal.5th 618 (Frahs) is thus inapplicable.

In Frahs, the Supreme Court held a limited remand is appropriate “when, as here, 

the record affirmatively discloses that the defendant appears to meet at least the first 

threshold eligibility requirement for mental health diversion — the defendant suffers 

from a qualifying mental disorder ....” (Frahs, supra, 9 Cal.5th at p. 640.) But Frahs

was written in context of its application to sentencing hearings occurring before 

section 1001.36 was enacted. (Id. at p. 638 [“defendant was tried and convicted 

before section 1001.36 became effective”].) Moreover, Frahs itself recognizes the 

procedural limits of its holding. (Id. at p. 640 [not addressing questions not presented].)

To be clear, the record here contained significant evidence of Banner’s mental 

illness, which was discussed at the sentencing hearing.12 Based on the entire record, 

however, the court could reasonably conclude Banner’s mental health was not a 

significant factor underlying the crime.13

12 As discussed in detail below, Banner’s counsel advocated for a sentence 

involving nonstatutory mental health programming in lieu of incarceration.

13 To illustrate, Banner testified at the trial and claimed he was innocent. He again 

professed innocence in his posttrial statutory probation interview (§ 1203). During 

sentencing, he made no statement. His interview with a police officer at the crime scene 

was coherent. No witness believed Banner was mentally ill during the incident. Put 
8.

In sum, a trial court “may” grant mental health diversion after first broaching its 

prospects with the parties,

14 but there is no sua sponte duty to do so in the absence of a 

request by the defendant or any other person.15 Nonetheless, we join our colleagues in 

“emphasiz[ing] that our trial courts must give serious consideration to this critical 

alternative, for the good not just of mentally ill offenders but, ultimately, society at 

large.” (People v. Williams (2021) 63 Cal.App.5th 990, 1005; People v. O’Hearn (2020) 

57 Cal.App.5th 280, 300—301.) In conclusion, the trial court here did not err in 

pronouncing judgment without first explicitly contemplating diversion absent a request 

from Banner.16

II. Banner Cannot Prove Ineffective Assistance

This claim requires us to determine whether Banner received constitutionally 

ineffective counsel. He complains he did “because any constitutionally effective defense 

simply, nowhere in the record does evidence appear Banner’s mental illness played a 

significant role in these crimes. 

We point this out not to discredit or disparage Banner in any way, and certainly 

not to place upon him or any defendant a burden to testify or make any statement 

explaining why his or her mental illness culminated in a specific incident. We point it 

out only to explain how the trial court reasonably could conclude Banner’s illness was in 

“abeyance at the time ....” (People v. Oneal (2021) 64 Cal.App.5th 581, 589 [“trial 

court’s factual findings [upheld] if supported by substantial evidence”].) 

It is true Banner was found mentally incompetent prior to his trial. But the court 

did not declare a doubt as to Banner’s competency until nearly seven full months after his 

arrest. (See § 1368.)

14 The court must still comply with all statutory requirements, particularly 

“considering the positions of the defense and prosecution ....” (§ 1001.36, subd. (a).)

15 Other statutes are similarly structured. (E.g., § 1385 [court may dismiss action 

on its own or on application of prosecutor]; see People v. Lee (2008) 161 Cal.App.4th 

124, 129 [“no sua sponte duty” arises under section 1385].)

16 Whether Banner’s request for diversion at sentencing would be timely is 

currently under review by the Supreme Court in People v. Braden (2021) 

63 Cal.App.5th 330, review granted July 14, 2021, S268925. Because that question is not 

raised in this case, we neither address it nor express a view on its resolution.
9.

counsel ... would have requested mental health diversion under section 1001.36.” The 

People respond Banner “cannot establish ... ineffective assistance of counsel” “[b]ecause 

the record does not establish [he] was eligible for pretrial mental health diversion ....” 

We agree with the People.

A. Additional Background

At a pretrial hearing approximately seven months after the crime occurred, 

Banner’s counsel declared a doubt regarding Banner’s mental competency to stand trial. 

(§ 1368.) Just before trial, counsel indicated the possibility of calling an expert witness 

to describe Banner’s mental state during the incident.17 

During sentencing, counsel sought local mental health court as an alternative to 

imprisonment. Counsel also argued Banner’s testimony, i.e., disclaiming responsibility, 

was a “symptom of his mental illness.” As noted above, the court recognized Banner 

suffered from “mental health issues” but believed it “was somewhat in abeyance at the 

time of the situation for whatever purpose or whatever reason.” 

B. Analysis

The Sixth Amendment guarantees the “ ‘right to the effective assistance of 

counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685—686.) “ ‘[T]o establish 

a claim of ineffective assistance of counsel, [Banner] bears the burden of demonstrating, 

first, that counsel’s performance was deficient because it “fell below an objective 

standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.] 

Unless [he] 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.” [Citation.] If the record 

“sheds no light on why counsel acted or failed to act in the manner challenged,” an 

appellate claim of ineffective assistance of counsel must be rejected “unless counsel was 

17 That witness ultimately did not testify.
10.

asked for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation.” [Citations.] If [he] meets the burden of establishing that 

counsel’s performance was deficient, he ... must show that counsel’s deficiencies 

resulted in prejudice, that is, a “reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” ’ ” 

(People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).)

“The object of an ineffectiveness claim is not to grade counsel’s performance. If it 

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient 

prejudice ... that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019—

1020 (Cox); People v. Carrasco (2014) 59 Cal.4th 924, 982.) We follow that course 

here.

At first glance, the record is unfavorable to counsel. For example, requesting 

informal mental health treatment but not statutory mental health diversion appears 

inconsistent. It is possible, however, counsel believed Banner did not meet each criterion 

for eligibility, specifically the fact mental illness must significantly underlay the crime.18

More importantly, it does not appear Banner was prejudiced. Again, the trial court 

did not believe Banner’s mental illness played a significant role in this crime. Without 

believing mental illness was a “significant factor” in the crime, the court could not grant 

diversion. (§ 1001.36, subd. (b)(1)(B).) We conclude Banner has failed to discharge his 

burden to prove prejudice because he cannot prove the court would have found him 

eligible for diversion.

III. Crimes Sufficiently Proven

Banner believes the evidence insufficiently proved attempted robbery against the 

second employee. He argues the evidence “does not support the reasonable inference that 

18 This is true notwithstanding counsel’s sentencing argument Banner’s mental 

illness was the reason he denied involvement in the crime.
11.

[he] specifically intended to commit a robbery” against the second employee because he 

“never took any sort of action against her, such as demanding money ..., pointing the 

apparent gun ..., or threatening to shoot her.” 

The People state “it is reasonably inferable that [Banner] intended to rob anyone 

and everyone who had access to and control over the money when he entered the store.” 

They assert “ ‘multiple convictions of robbery are proper if force or fear is applied to 

multiple victims in joint possession of the property taken.’ ” (People v. Scott (2009) 

45 Cal.4th 743, 750 (Scott).) We agree.

“When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.] ... We presume in support of 

the judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 

45 Cal.4th 1, 27.)

“ ‘To constitute robbery the property must be removed from the possession and 

immediate presence of the victim against his will, and such removal must be by force or 

fear.’ ” (People v. Nguyen (2000) 24 Cal.4th 756, 761.) “[N]either ownership nor 

physical possession is required to establish the element of possession for the purposes of 

the robbery statute.” (Scott, supra, 45 Cal.4th at p. 749.) “Two or more persons may be 

in joint constructive possession of a single item of personal property, and multiple 

convictions of robbery are proper if force or fear is applied to multiple victims in joint 

possession of the property taken.” (Ibid.)
12.

“ ‘ “[A] store employee may be the victim of a robbery even though he is not its 

owner and not at the moment in immediate control of the stolen property.” ’ ” (Scott, 

supra, 45 Cal.4th at p. 751.) “[A]ll employees on duty have constructive possession of 

their employer’s property and may be separate victims of a robbery.”19 (People v. 

Bradford (2010) 187 Cal.App.4th 1345, 1349.)

With these principles in mind, we conclude the evidence readily supports the 

jury’s verdict. The evidence disclosed Banner entered the restaurant and stood in line for 

several minutes while observing two employees assist multiple customers. When Banner 

reached the front of the line, he produced a toy firearm and demanded money. At that 

point, both employees were in close proximity to one another and the cash register.

“As a matter of common knowledge and experience, those who commit robberies 

are likely to regard all employees as potential sources of resistance ....” (Scott, 

supra, 45 Cal.4th at p. 755.) The jury could reasonably infer Banner was acutely aware 

two employees were obstacles in his path. The jury could also reasonably conclude he 

waited for the employees to converge before attempting the robbery in an effort to 

maximize control and success. This is consistent with an intent to rob both employees. 

Accordingly, the evidence sufficiently proved both attempted robberies.

19 Although not in issue here, we make clear a “long line of California cases ... 

have found evidence sufficient to establish that employees working at a business 

premises were in constructive possession of the employer’s property during a robbery, 

based upon their status as employees and without examining whether their particular 

duties involved access to or control over the property stolen.” (Scott, supra, 45 Cal.4th at 

p. 752, emphasis added.) This is so “because of their relationship to the property or its 

owner, [employees] have the right to resist the taking ....” (Id. at p. 758.) That was 

borne out in this case when the second employee resisted the taking by fleeing and 

notifying law enforcement.
13.

IV. Fines and Fees Properly Imposed

As pertinent, the trial court imposed a $300 restitution fine, an $80 operations fee, 

and a $60 conviction fee as part of the judgment.20 Banner did not object to their 

imposition.

“In general, a defendant who fails to object to the imposition of fines, fees, and 

assessments at sentencing forfeits the right to challenge those fines, fees, and assessments 

on appeal.” (People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950.) “This is 

particularly so in a case such as this one, where the sentencing occurred after the 

Dueñas court declared a constitutional right to have a court determine the defendant’s 

ability to pay before imposing statutorily mandated fines and assessments.”21 (LopezVinick, supra, at p. 950.) Because Banner did not object, we conclude he forfeited this 

claim.

Alternatively, Banner contends his counsel was ineffective for failing to object 

post-Dueñas. He bears the burden to demonstrate “ ‘ “ ‘there is a “reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different. ... ” ’ ” ... Reviewing courts defer to counsel’s reasonable tactical decisions 

in examining a claim of ineffective assistance of counsel [citation], and there is a “strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal ...: “ 

‘Reviewing courts will reverse ... [on direct appeal] on the ground of inadequate counsel 

only if the record on appeal affirmatively discloses that counsel had no rational tactical 

20 These obligations were imposed pursuant to sections 1202.4, 1465.8, and 

Government Code, section 70373, respectively. 

21 The decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 is the basis for 

Banner’s claim. It was published nearly seven full months prior to Banner’s sentencing 

hearing. 
14.

purpose for [his or her] act or omission.’ ” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 

876.)

Based on the record, counsel may well have believed an objection to these 

financial obligations was futile. The only evidence relative to ability to pay disclosed

Banner’s assets and net monthly income exceeded the total obligation imposed by the 

court.22 For these reasons we cannot find counsel ineffective nor can we find the court 

erred in its judgment.23

V. Habeas Petition

In the habeas petition, Banner asserts his trial counsel was ineffective because she 

did not request diversion due to inadequate funding “and the Public Defender’s Office 

had been unsuccessful in requesting diversion in other cases.”24 He argues “[i]t was 

incumbent upon trial counsel to request diversion and have the trial court improperly 

deny the request on the basis of inadequate funding.” He concludes, “there is a 

reasonable chance that the trial court would have granted diversion if trial counsel had 

made the request ....” We disagree.

As recited above, to prevail on an ineffective counsel claim, Banner must prove 

prejudice. (Bell, supra, 7 Cal.5th at p. 720.) We need not determine if trial counsel was 

deficient because Banner cannot prove prejudice. (See Cox, supra, 30 Cal.4th at 

22 The income statistics are contained in Banner’s postconviction probation 

interview. (§ 1203.) The fines and fees imposed reflect the statutory minimum.

23 To the extent Banner claims the fines and fees were constitutionally excessive, 

we disagree. Four hundred and forty dollars is not excessive for attempting to rob 

multiple people with a toy firearm. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. 

(2005) 37 Cal.4th 707, 728 [proportionality is the touchstone of Eighth Amendment 

analysis].)

24 This assertion is based on an asserted conversation between Banner’s appellate 

counsel and Banner’s trial counsel. Of course, we cannot pass upon the credibility of this 

assertion. Ordinarily, an evidentiary hearing is necessary to resolve credibility. Here, 

however, an evidentiary hearing is unnecessary because Banner is not entitled to relief 

even if appellate counsel’s assertion is true and accurate.
15.

pp. 1019—1020.) Were we to assume trial counsel’s rationale was deficient, it does not 

change the fact the trial court did not believe Banner’s mental illness was a significant 

factor in these attempted robberies. (See ante, Discussion, II. B., § 1001.36, 

subd. (b)(1)(B).) For that reason, there is not a reasonable probability the trial court 

would have granted diversion and the petition lacks merit.

DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus consolidated 

with this appeal (previously numbered F081144) is denied.

SNAUFFER, J.

WE CONCUR:

DETJEN, ACTING P. J.

DE SANTOS, J.