Monthly Archives: May 2026

Discretion, Standard of review

Case 000014

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant contends that the trial court abused its discretion in denying her petition for mental health diversion. We agree that the court applied an incorrect legal standard in ruling on her petition. And we disagree with the People that we can imply from the court’s ruling the missing findings required by the statute. We thus conditionally vacate her no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First Holding:

A trial court abuses its discretion when it applies the wrong legal standard. Application of an incorrect legal standard on Mental Health Diversion requires reversal.

Authority:

PEN 1001.36(c)

Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 584 [trial court applied an incorrect legal standard when it did not apply one of the essential components for deciding whether fees should be awarded under the applicable fee statute]

People v. Moine (2021) 62 Cal.App.5th 440, 449

Second Holding:

The court reviews denial of Mental Health diversion under the abuse of discretion standard. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Third Holding:

There is a presumption of correctness in court orders. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew and applied the law. When the record clearly demonstrates what the trial court did, we will not presume it did something different.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Lafayette Morehouse Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384

Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015

Sentencing

Case 000013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating defendant’s custody credits. Because he participated in the sober living program pursuant to a court order, he is entitled to custody credit for the time he spent there. The People concede this issue. We agree with the parties.

First Holding:

Credit for time served that is miscalculated must be corrected.

Authority:

PEN 2900.5(a)

Second Holding:

Involuntary time in treatment counts as credit for time served when attributable to the criminal proceedings.

Authority:

People v. Davis (2023) 87 Cal.App.5th 771, 777 [Section 2900.5 has two components: First, that the placement be custodial, and second, that the custody be attributable to the proceedings relating to the same conduct for which defendant has been convicted]

People v. Billy (2024) 107 Cal.App.5th 246, 262-264, [Defendant’s voluntary stay at a rehabilitation facility did not qualify for custody credit under section 2900.5]

Fines and fees, Sentencing

Case 000012

Posted on by Gary McCurdy

Error and/or relief

The restitution fine must be vacated because it was originally imposed more than 10 years ago. The court must calculate the actual time the defendant has already served and credit that against the subsequent sentence.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Sentencing, Sixth Amendment, Standard of review

Case 000011

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially committed constitutional and statutory error in imposing the upper term sentence based on aggravating factors not tried to the jury. The factors relied on were: the victim’s particular vulnerability; the offense was carried out with planning, sophistication, and professionalism; the defendant engaged in violent conduct which indicated a serious danger to society; the defendant had numerous prior convictions and they were of increasing seriousness.

First Holding:

The defendant is entitled to a jury trial on aggravating factors, which must be proved beyond a reasonable doubt before they can be relied on to impose the upper term (unless they are stipulated to by the defendant).

Authority:

PEN 1170

Second Holding:

The standard of review for evaluating the improper use of untried aggravating fact is whether error was harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18

Erlinger v. United States (2024) 602 U.S. 821

Apprendi v. New Jersey (2000) 530 U.S. 466

People v. Lynch (2024) 16 Cal.5th 730

Third Holding:

The parties agree the court erred in relying on those circumstances to impose the upper term on the principal count. Their disagreement centers around whether such error was prejudicial under the circumstances. On the record before us, we conclude it was.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. French (2008) 43 Cal.4th 36, 47

Appellate Principles

Case 000010

Posted on by Gary McCurdy

Error and/or relief

The defendant appealed from the denial of his second petition for resentencing pursuant to Penal Code section 1172.6. The appellate court concluded that his petition is not barred by the doctrine of collateral estoppel and corresponding public policy considerations. He had never received notice of earlier denial. He is not barred from submitting a new petition.

First Holding:

Successive petitions for resentencing are not explicitly barred by section 1172.6 but may be barred by doctrine of collaterial estoppel. Application of collateral estoppel is not automatic, but is subject to public policy considerations.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 950

Second Holding:

The court does not apply collateral estoppel with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.

Authority:

People v. Yokely (2010) 183 Cal.App.4th 1264, 1273

Third Holding:

Because of the retroactive nature and ever-evolving interpretations of the law surrounding section 1172.6, defendants may avail themselves of potential eligibility for relief under the statute that was not previously available under other judicial interpretations.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 951

People v. Lovejoy (2024) 101 Cal.App.5th 860