P. v. Spate CA5 — Fear Not Law

Filed 7/8/26 P. v. Spate CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F088897
Plaintiff and Respondent,
(Super. Ct. No. F24904573)
v.

MARIAH LYN SPATE, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary R.
Orozco, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Kari Ricci Mueller, and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Detjen, Acting P. J., Meehan, J. and DeSantos, J.
Defendant Mariah Lyn Spate contends on appeal that the sentence must be vacated
and the matter remanded for resentencing because defense counsel provided ineffective
assistance by failing to object when the trial court relied on an unproven aggravating
factor and failed to consider mitigating factors when it imposed the midterm for count 6
and the upper term for the firearm enhancements. The People disagree. We affirm.
PROCEDURAL SUMMARY
On August 8, 2024, the Fresno County District Attorney filed an amended
consolidated information charging defendant with assault with a deadly weapon
(Pen. Code, § 245, subd. (b);1 count 1); assault with a firearm (§ 245, subd. (a)(2);
count 2); two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 3
& 4); discharging of a firearm with gross negligence (§ 246.3, subd. (a); count 5); and
resisting an executive officer (§ 69, subd. (a); count 6). As to counts 1 and 2, it was
further alleged that defendant personally inflicted great bodily injury (§ 12022.7,
subd. (a)). As to counts 1, 2, and 6, it was further alleged that defendant personally used
a firearm (§ 12022.5, subd. (a)). As to count 5, it was further alleged that defendant
personally used a handgun (§ 969f). As an aggravating factor, it was alleged that
defendant’s prior convictions were numerous or of increasing seriousness (Cal. Rules of
Court,2 rule 4.421(b)(2)).
On August 8, 2024, defendant pled not guilty to all counts and denied the
allegations.
On August 21, 2024, the jury found defendant not guilty of counts 1 and 2 and
guilty on counts 3 through 6. As to count 5, the jury found true the firearm enhancement
(§ 969f). As to count 6, the jury found true the firearm enhancement (§ 12022.5,
subd. (a)). Defendant waived her right to a jury trial on the aggravating factor.

1 All further statutory references are to the Penal Code.
2 All further rules references are to the California Rules of Court.

2.
On August 22, 2024, the trial court found true the aggravated sentencing factor
that her prior convictions were of numerous or increasing seriousness (rule 4.421(b)(2)).
On October 24, 2024, the trial court sentenced defendant to a total term of
12 years eight months, as follows: on count 6 (§ 69; resisting an executive officer),
two years (the mid-term), plus 10 years (the upper term) for the firearm enhancement
(§ 12022.5, subd. (a)), and on count 3 (§ 29800, subd. (a)(1); possession of a firearm by a
felon), eight months (one-third the mid-term), consecutive. The court stayed two-year
terms for counts 4 and 5 pursuant to section 654. The court awarded defendant with
926 days of credit.
On November 4, 2024, defendant filed a timely notice of appeal.
FACTUAL SUMMARY3
On August 11, 2022, Fresno County Sheriff’s deputies stopped defendant’s car
because she had an active warrant for her arrest. Deputies took her into custody, patting
her down and placing her in the backseat of a patrol vehicle. Defendant told them she
was a “cop,” that they were “f[***]ed,” that she was going to sue them, and that the arrest
warrant was probably for her mother and not her.
A minute or two after the deputies put her in the patrol vehicle, defendant
discharged a firearm three to four times, shooting out of the back window of the patrol
vehicle. At least two deputies returned fire. Defendant threw a handgun out of the patrol
car, then deputies pulled her out of the car and re-handcuffed her. Deputies searching the
patrol car found a .380-caliber shell casing inside.
DISCUSSION
Defendant contends defense counsel provided ineffective assistance by failing to
object when the trial court improperly relied on the unproven aggravating factor of the

3 Only the facts underlying count 6 and the section 12022.5, subdivision (a)
enhancement are relevant to defendant’s appeal. Accordingly, we omit the facts
underlying defendant’s other offenses.

3.
“gravity of the case” and failed to consider mitigating factors when it imposed the middle
term for count 6 and the upper term for the section 12022.5, subdivision (a) enhancement.
The People disagree. We agree with the People.
A. Background
The parties filed written sentencing briefs. Defendant’s sentencing brief requested
the lower term and discussed her history of mental health issues and trauma as a victim of
domestic violence, child abuse, and sexual abuse.
Two psychological evaluations were also admitted to the record: one by
Dr. Tamar Kenworthy in an unrelated criminal matter, and the second by Dr. Alanna
Newton in the instant case, pursuant to section 1001.36. Both evaluations concluded
defendant suffered from mental illness. Kenworthy’s report stated defendant was
incompetent to stand trial, concluding she suffered from “Unspecified Bipolar Disorder,”
“Bipolar 1 Disorder,” and “Delusional Disorder.” Newton’s report stated defendant
suffered from “Unspecified Schizophrenia and Other Psychotic Disorder.”
At the sentencing hearing, the trial court heard argument from both parties.
Defense counsel requested that the court impose the lower term of 16 months on
count 6 and the lower term of three years for the section 12022.5, subdivision (a)
enhancement. Defense counsel discussed the increasing seriousness of defendant’s
criminal history, emphasizing her mental health diagnosis and childhood abuse, stating,

“This is [defendant’s] first violent offense. We are not denying her
criminal history, however this is her first violent offense.… [Defendant]
was a victim growing up of child abuse[,] sexual abuse and domestic
violence. At the time of this incident she was suffering from a mental
health diagnosis, a severe mental health diagnosis that [is] detailed in
[Kenworthy’s] report.”
The prosecution emphasized defendant’s lengthy criminal history, current
offenses, and refusal to recognize her mental illness, stating,

“[Defendant’s] criminal record indicates a significant history of
noncompliance with the rules of the court, and the—what is addressed in

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[our] moving papers is that [defendant] essentially is refusing to recognize
the issues that may be, at least in part, a culprit of what has led her to this
point. So with that record I don’t believe that the [c]ourt has any reason to
think that a lesser sentence would result in a better outcome in the future.
[Defendant] is simply refusing to recognize her own issues, refusing to deal
with them adequately. She’s been provided ample opportunity to do so,
and her actions that led her to this point are exceptionally violent. So with
that said I would submit with the recommendation [in the moving papers],
which appears to match the recommendation by [p]robation.”
The trial court denied defendant’s request to place her in mental health diversion,
on probation and to strike the section 12022.5, subdivision (a) enhancement and imposed
the midterm for count 6, noting the offense involved defendant firing a gun in public. It
stated,

“The [c]ourt heard the testimony in this case, understood the
procedural history of the case, and now after verdict understands the prior
criminal history and attempts at treatment of [defendant]. And I would
only repeat those things that [the prosecution] says in his papers, that
[were] just echoed here, is that [defendant] refuses to address those issues.
She’s been given opportunities. She was on probation at the time—or on
diversion out of Lake County here in Northern California on two separate
grants of mental health diversion in 2022, and she failed to appear and
bench warrants were issued. Those diversions—I looked up the dates. I
can’t recall if they were on or around the time or shortly before these
incidents arose that was the subject of the charges in this case. So there
was no excuse not to appear in those matters.… I can’t help [but] to take
into consideration, give the weight to the statements of [Newton], who
states that, ‘[Defendant]’s diagnosed conditions are known to respond [to]
treatment. She reported a desire to participate in treatment, however it
should be noted … that [defendant] displays no insight into her mental
health symptoms, her need for medication, and refuses offered services in
jail. She was also previously on mental health diversion in another county
at the time of the current charges.’ [Newton] then, at page 12, concludes
that ‘based on the information gained in the present evaluation, [defendant]
appears to pose a high risk for danger to public safety if treated in the
community.’ … The [c]ourt would find by a preponderance of the
evidence, the [c]ourt would find by clear and convincing evidence, that she
poses an extreme danger to public safety that outweighs any consideration
of any probation in this case. I find that it would not serve the interest of
justice to grant probation nor mental health diversion. She is just too
dangerous. The two incidents that were the subject of this trial was a

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firearm that was basically hidden. It was not brandished until moments
before the shooting started on each of the allegations.… [S]he can and
knows [how] to, you know, hide or secret the firearm so as to have that
element of surprise, which the deputies certainly had [when she committed
the offenses]. And then she has no qualms in pulling the trigger of that
firearm either. So for those reasons and based on the—and likewise, the
crimes increasing in their seriousness and severity of the crime, the [c]ourt
finds that she is not suitable for probation.… Therefore the [c]ourt will
deny probation, and for the violation of [c]ount 6 … [t]he [c]ourt will
impose the [midterm] of two years, understanding the only mitigating thing
that arguably is mitigating, but not … the opposing side would be, Hey,
yeah, she didn’t fire in the direction of the peace officers that were—that
were to her right in the patrol car, but there—there was an apartment
complex 50 yards away, across the street in the direction that she did fire
in.… Having been convicted of the enhancement under … section
12022.5[, subdivision] (a) the [c]ourt understands its discretion likewise to
stay—strike the punishment, strike the enhancement. The [c]ourt is not
choosing to do any of those things, in that the gravity of the crime and the
status of the—of the defendant at the time while on grants of mental health
diversion, two other felony cases out of Lake County, declines to do so.
And the number of shots that were fired as well. It wasn’t that she broke
out the back window of the patrol car with a firearm using the butt of it. It
wasn’t that she fired the firearm only one time out of the window. She
fired and pulled that trigger and had to engage in separate thoughts and
actions for each pull of that trigger, and she fired a number of times outside
of the back of that window, endangering anyone nearby and in the zone of
that shooting. So the [c]ourt will impose the aggravated term of [10] years
for a violation of [section] 12022.5[, subdivision] (a) .…”
B. Law
A criminal defendant has a constitutional right to effective assistance of counsel.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466
U.S. 668, 684–685 (Strickland).) To prove ineffective assistance, the appellant first must
show that their attorney performed below the standard of reasonableness under prevailing
professional norms; and second, there is a reasonable probability that but for this
substandard performance, the result of the proceeding would have been more favorable to
appellant. (Strickland, at pp. 686–688; People v. Mai (2013) 57 Cal.4th 986, 1009;
People v. Brand (2021) 59 Cal.App.5th 861, 871–872.) “It is defendant’s burden to

6.
demonstrate the inadequacy of trial counsel.” (People v. Lucas (1995) 12 Cal.4th 415,
436.) An insufficient showing on either component is fatal to an ineffective assistance
claim. (Strickland, at p. 687; accord, Brand, at pp. 871–872 [we concluded an ineffective
assistance claim fails if the defendant makes an insufficient showing on either one of the
two Strickland prongs].)
Claims of ineffective assistance are often not cognizable on appeal, as we give
deference to trial counsel’s tactical choices, and the record rarely provides information
regarding counsel’s strategy. (Strickland, supra, 466 U.S. at pp. 690–691; accord, People
v. Silvey (1997) 58 Cal.App.4th 1320, 1329 [“Ineffective assistance of counsel claims are
rarely cognizable on appeal.”].) In evaluating a defendant’s claim of incompetence,
“ ‘ “[a] fair assessment of attorney performance requires that every effort be made … to
evaluate the conduct from counsel’s perspective at the time.” ’ ” (People v. Mayfield
(1993) 5 Cal.4th 142, 199.)
We must reject claims of ineffective assistance if the record “does not
affirmatively show why counsel failed to object and the circumstances suggest counsel
could have had a valid tactical reason for not objecting.” (People v. Jones (2009) 178
Cal.App.4th 853, 860, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)
We must similarly reject claims of ineffective assistance “unless counsel was asked for
and failed to provide a satisfactory explanation, or there simply can be no satisfactory
explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
C. Analysis
Here, defense counsel did not provide ineffective assistance by failing to object to
the court’s imposition of the middle term on count 6 and upper term on the
section 12022.5, subdivision (a) enhancement by relying on the unproven aggravating
factor of the “gravity of the crime” pursuant to section 1170, subdivision (b)(2) and by
failing to consider the mitigating factors of defendant’s psychological, physical, and
childhood trauma pursuant to section 1170, subdivision (b)(6) and her mental illness

7.
pursuant to rule 4.423. First, section 1170, subdivision (b)(2) is inapplicable to the
middle term imposed on count 6. Second, the court did not rely on the unproven
aggravated term of the “gravity of the crime” when imposing the upper term on the
section 12022.5, subdivision (a) enhancement. Third, the record shows the court properly
considered the mitigating factors of her psychological, physical, and childhood trauma
pursuant to section 1170, subdivision (b)(6), and fourth, the record also shows the court
properly considered her mental illness as a mitigating factor pursuant to rule 4.423.
Accordingly, defense counsel did not provide ineffective assistance of counsel by failing
to object on those grounds, as any objection would have been futile. Last, we also
conclude that even if the court improperly weighed the mitigating factors against the
single, proven aggravating factor that defendant’s convictions were numerous or of
increasing seriousness, defendant was not prejudiced because there is not a reasonable
probability pursuant to Strickland that the trial court would have imposed the lower
terms, had defense counsel objected.
Middle Term on Count 6
Defendant first argues defense counsel provided ineffective assistance by failing to
object to the trial court’s reliance on the “ ‘gravity of the case’ ” as an aggravating factor
when imposing the middle term for count 6.
Effective January 1, 2022, a sentencing court may not impose a determinate upper
term sentence unless (1) “there are circumstances in aggravation of the crime that justify
[its] imposition,” and (2) the aggravating circumstances “have been stipulated to by the
defendant or … found true beyond a reasonable doubt at trial.” (§ 1170, subd. (b)(1),
(2).) Pursuant to subdivision (d)(2) of section 1170.1, the same principles apply for
selecting a term for an enhancement. (§ 1170.1, subd. (d)(2).)
Other than stipulated facts or the fact of a prior conviction, “aggravating facts
relied upon to justify an upper term must be resolved by the jury beyond a reasonable
doubt.” (People v. Lynch (2024) 16 Cal.5th 730, 755.) “[T]his jury trial right is not

8.
merely a state law entitlement, but is constitutionally required for all aggravating facts,
other than a prior conviction.” (People v. Wiley (2025) 17 Cal.5th 1069, 1078.) “A
Sixth Amendment violation occurs when the trial court relies on unproven aggravating
facts to impose an upper term sentence, even if some other aggravating facts relied on
have been properly established.” (Lynch, at p. 768.)
Section 1170, subdivision (b) only applies to imposition of the upper term, but
here, the trial court imposed the middle term on count 6. (See § 1170, subd. (b)(2);
Wiley, supra, 17 Cal.5th at p. 1078.) Accordingly, because the court did not impose the
upper term on count 6, section 1170, subdivision (b) is inapplicable to that term and
defense counsel had no grounds to lodge an objection to the court’s imposition of the
middle term on that basis. Thus, defense counsel did not provide ineffective assistance of
counsel by failing to object to the court’s imposition of the middle term on count 6 based
on its supposed reliance on the “ ‘gravity of the case’ ” as an unproven aggravating
factor.
Upper Term on Section 12022.5, Subdivision (a) Enhancement
Defendant next argues that defense counsel provided ineffective assistance by
failing to object to the trial court’s imposition of the upper term of 10 years for the
section 12022.5, subdivision (a) enhancement to count 6 because it relied on the
unproven aggravating factor of the “ ‘gravity of the case.’ ”
The People argue as a threshold issue that defendant forfeited this claim because
she did not identify the claim in her opening brief with a separate heading, supporting
authorities, or meaningful analysis. (People v. Flores (2024) 101 Cal.App.5th 438, 451,
fn. 3.)
However, regardless of whether defendant forfeited the claim, defense counsel did
not provide ineffective assistance by failing to object to the court’s imposition of the
upper term for the section 12022.5, subdivision (a) enhancement by relying on the
unproven aggravating factor of the gravity of the crime.

9.
We disagree with defendant’s contention that the trial court relied on the “gravity
of the case” as an unproven aggravating factor when imposing the upper term for the
section 12022.5, subdivision (a) enhancement. Defendant mischaracterizes the court’s
statement and takes out of context its use of the words “gravity of the crime” when it was
discussing the proven aggravating factor of her offenses being numerous or of increasing
seriousness.
Here, the court stated in pertinent part:

“The [c]ourt is not choosing to do any of those things, in that the
gravity of the crime and the status of the—of [defendant] at the time while
on grants of mental health diversion, two other felony cases out of Lake
County, declines to do so. And the number of shots that were fired as well.
It wasn’t that she broke out the back window of the patrol car with a
firearm using the butt of it. It wasn’t that she fired the firearm only
one time out of the window. She fired and pulled that trigger and had to
engage in separate thoughts and actions for each pull of that trigger, and she
fired a number of times outside of the back of that window, endangering
anyone nearby and in the zone of that shooting. So the [c]ourt will impose
the aggravated term of [10] years for a violation of [section] 12022.5[,
subdivision] (a) .…”
Although the trial court used the words “gravity of the crime” when discussing the
sentence for the section 12022.5, subdivision (a) enhancement, the court’s statement
when read as a whole shows that the term was only used in the vernacular as part of its
discussion of the proven aggravating factor of the increasing seriousness of defendant’s
offenses, as it first noted her prior felonies in which she had already been granted mental
health diversion, then discussed the instant offense, where she shot out of a patrol car
numerous times while under arrest, and after slipping out of her handcuffs. The court’s
use of the common word “gravity” to convey seriousness when discussing the instant
offense does not in and of itself mean that the court relied separately on the “gravity of
the crime” as an unproven aggravating factor.
As the trial court stated, when it found the aggravating factor that defendant’s
offenses were numerous or of increasing seriousness true beyond a reasonable doubt, it

10.
did so with an “understanding [of] this current case from which she was convicted in the
[c]ounts 3, 4, 5, and 6.” The nature and so-called “gravity” of count 6 (resisting an
executive officer) were essential to the court’s factual finding that her offenses were
numerous and of increasing seriousness, which it found true beyond a reasonable doubt.
Accordingly, the context of the court’s use of the common word “gravity” to discuss the
seriousness of the instant offense shows the court did not rely on the “gravity of the
crime” as a separate, unproven aggravating factor, but rather, only relied on the properly
proven aggravating factor that her offenses were numerous or of increasing seriousness,
since the instant offense was her most violent and serious offense to date.
Accordingly, as the trial court did not improperly rely on the “gravity of the
crime” as a separate, unproven aggravating factor, defense counsel did not provide
ineffective assistance to defendant by failing to object to the court’s imposition of the
sentence on this basis.
Defendant’s Psychological, Physical, and Childhood Trauma as
Mitigating Factors (§ 1170, Subdivision (b)(6))
Defendant next contends that defense counsel provided ineffective assistance by
failing to object when the trial court improperly failed to consider her psychological,
physical, and childhood trauma as mitigating factors requiring the imposition of the lower
terms pursuant to section 1170, subdivision (b)(6)(A).
Section 1170, subdivision (b)(6) provides an exception to subdivision (b)(2) of
that section, stating in pertinent part:

“Notwithstanding paragraph (1), and unless the court finds that the
aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice,
the court shall order imposition of the lower term if any of the following
was a contributing factor in the commission of the offense: [¶] (A) The
person has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual
violence.” (§ 1170, subd. (b)(6), (6)(a).)

11.
Accordingly, subdivision (b)(6)(A) of section 1170 requires the trial court to
consider whether the psychological, physical, or childhood trauma was a “contributing
factor” in the commission of the alleged offense, unless the aggravating factors outweigh
the mitigating factors such that a lower term would be contrary to the interest of justice.
(§ 1170, subd. (b)(6).)
Here, the record shows the trial court was aware of and considered defendant’s
psychological, physical, and childhood trauma during sentencing. In addition to the
parties’ oral arguments at the sentencing hearing, defendant’s sentencing memorandum
was read and considered by the court. It outlined defendant’s chaotic upbringing
involving emotional abuse and drug abuse, including her mother leaving her when
defendant was seven years old, never knowing her father, often being left to survive on
her own, and later in life being in a long-term relationship with a “violent alcoholic” who
subjected her to domestic violence. The court also considered the two psychological
evaluations submitted to the court at the time of sentencing, which both stated defendant
suffered from mental illness. The court also heard testimony at trial about her behavior
when she was committing the offense, including Fresno County Sheriff’s detective Larry
Waldrop’s testimony that defendant’s language was “outlandish” at the time of her arrest,
stating she was a police officer and that the arrest warrant was probably for her mother.
Here, the record shows the trial court was well aware of defendant’s history of
psychological, physical, and childhood trauma when it found the aggravating factor that
defendant’s convictions were numerous or of increasing seriousness outweighed those
mitigating factors. Even though the court did not expressly state it was applying
section 1170, subdivision (b)(6), “[a]bsent evidence to the contrary, we presume that the
trial court knew and applied the governing law.” (People v. Gutierrez (2014) 58 Cal.4th
1354, 1390.) Accordingly, defense counsel’s performance was objectively reasonable
pursuant to Strickland and any objection by defense counsel on this ground would have
been futile, as defense counsel’s arguments and sentencing memorandums were sufficient

12.
to alert the court to defendant’s traumas as a basis for its request that the court impose the
lower terms, and which the record shows the court considered, as it discussed defendant’s
mental health history and the evaluations by the psychologists.
Mental Illness as a Mitigating Factor (Rule 4.423)
Defendant likewise argues that defense counsel provided ineffective assistance by
failing to object when the trial court improperly failed to consider mental illness as a
mitigating factor pursuant to rule 4.423.
As stated above, section 1170, subdivision (b)(6) provides an exception to
subdivision (b)(2) of that section, stating that unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances, that imposition of the lower term
would be contrary to the interests of justice and the court shall order imposition of the
lower term if certain mitigating factors are found. (See § 1170, subd. (b)(6).) Rule 4.423
recognizes mental illness as a mitigating factor. (Rule 4.423, subd. (b)(2) [“The
defendant was suffering from a mental or physical condition that significantly reduced
culpability for the crime.”].)
Discussing defendant’s mental illness, the court stated in pertinent part during
sentencing:

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current charges.’ [Newton] then, at page 12, concludes that ‘based on the
information gained in the present evaluation, [defendant] appears to pose a
high risk for danger to public safety if treated in the community.’ ”
Accordingly, the record here shows the trial court was well aware of defendant’s
mental illness, and in fact expressly discussed the impact of her mental illness on her
conduct during sentencing, when it found the aggravating factor that defendant’s
convictions were numerous or of increasing seriousness outweighed that mitigating
factor. As stated above, even though the court did not expressly state it was applying
rule 4.423 or section 1170, subdivision (b)(6), absent evidence to the contrary, we
presume that the trial court knew and applied the governing law. Accordingly, we
conclude defense counsel’s performance was objectively reasonable pursuant to
Strickland because any objection by defense counsel on this ground would have been
futile. Defense counsel’s arguments and sentencing memorandums and the psychological
evaluations were sufficient to alert the court to defendant’s mental illness as a basis for its
request that the court impose the lower terms, which the record shows the court
considered, as it discussed defendant’s mental health history and the evaluations by the
psychologists during sentencing.
Prejudice
Defendant next contends that defense counsel’s ineffective performance was
prejudicial, because there is a reasonable probability that, had counsel objected to the trial
court’s errors, the low terms would have been imposed. She argues the only way the low
terms would not have been imposed would have been if the court made a finding that the
single aggravating circumstance outweighed the mitigating circumstances to the extent
that imposition of the low terms would have been contrary to the interests of justice.
As discussed above, we conclude the record shows the trial court weighed those
mitigating factors against the single proven aggravating factor and determined that
imposing the low terms would have been contrary to the interests of justice.

14.
Accordingly, there was no error by the court and no ineffective assistance by defense
counsel for failing to object on those grounds.
Further, even if the trial court did not properly weigh the alleged mitigating factors
against the aggravating factor, the record shows there is not a reasonable probability of a
better outcome for defendant, as the court’s statement shows it considered her request for
mental health diversion and probation, but denied both, explaining that it was concerned
that her mental health had caused her prior failures on mental health diversion, lack of
insight into her mental illness, and created a high risk of violence if she were released and
also stated it was concerned about the aggravating factors of the increasing seriousness of
her criminal record found true in her case.
Prejudice occurs when there is “a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” (People
v. Centeno (2014) 60 Cal.4th 659, 676; see also Strickland, supra, 466 U.S. at p. 694.)
Here, as stated above, the trial court was aware of defendant’s psychological,
physical, and childhood trauma and mental illness, especially in light of the prosecution’s
concession that her mental health issues were “likely connected to the commission of this
crime” but that “factor is negligible in terms of mitigation. As the court explained in its
statement at sentencing, it declined to grant defendant mental health diversion and
probation and declined to strike the firearm enhancement because defendant lacked
insight into her mental illness, was already on mental health diversion when committing
the offense, and Newton had concluded she was a high risk of danger if released into the
community.
Accordingly, there is not a reasonable probability the trial court would have
imposed the lower terms, had defense counsel objected, and accordingly, any ineffective
assistance by defense counsel was not prejudicial.
DISPOSITION
The judgment is affirmed.

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