We agree that the defendant deserves an additional day of presentence custody credits but otherwise affirm.
The parties miscalculated his presentence credits by a day. The defendant’s presentence credits should have included both the date of his arrest and of his sentencing hearing.
PEN sec. 2900.5(a)
People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 [Calculation of custody credit begins on the day of arrest and continues through the day of sentencing.]
The 25 years to life sentences on three counts violate constitutional prohibitions on ex post facto laws because the offenses occurred prior to the effective date of the statute under which they were imposed. The trial record does not establish beyond a reasonable doubt that the offenses in the three counts occurred after the effective date of the statutory amendment increasing the penalty for the offenses.
The federal and state constitutions proscribe ex post facto laws. Both constitutions prohibit legislatures from retroactively increasing the punishment for a crime. The federal and state ex post facto laws are interpreted the same way.
U.S. Const., art. I, sec. 10
Cal. Const., art. I, sec. 9
Collins v. Youngblood (1990) 497 U.S. 37, 42–43
People v. Grant (1999) 20 Cal.4th 150, 158
People v. Snook (1997) 16 Cal.4th 1210, 1220
Ex post facto principles have been applied to the One Strike law and its amendments. Where the ex post facto clauses apply, it is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.
People v. Canales (2024) 106 Cal.App.5th 1230, 1259–1260
People v. Hiscox (2006) 136 Cal.App.4th 253, 256–262
People v. Riskin (2006) 143 Cal.App.4th 234, 244–245
An unauthorized sentence may also be corrected on appeal despite the absence of an objection below. A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case.
People v. Scott (1994) 9 Cal.4th 331, 354
When part of a sentence is stricken on review, a remand and full resentencing is generally appropriate so the trial court can exercise its sentencing discretion following the changed circumstances. However, when the trial court imposes the maximum possible sentence, there is no need to remand the matter for resentencing. Where there are no sentencing choices to restructure, it is appropriate to modify the sentence on appeal.
PEN 1260
People v. Buycks (2018) 5 Cal.5th 857, 893, 896 fn 15
People v. Lopez (2019) 42 Cal.App.5th 337, 342
People v. Francis (2017) 16 Cal.App.5th 876, 887
The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61(c). The only crime for which the defendant was convicted is identified in section 667.61(c)(8) and therefore, defendant’s convictions do not implicate the mandatory sentencing provision in section 667.61(i). By implication, section 667.61(i) leaves the decision to impose consecutive or concurrent terms on the nonspecified offenses to the sentencing court’s discretion under section 669.
PEN 667.61(i)
People v. Lopez (2022) 76 Cal.App.5th 287, 291
People v. Valdez (2011) 193 Cal.App.4th 1515, 1524
The court erred in denying his expungement request under Penal Code section 1203.4 and in failing to consider his request to reduce the offense to a misdemeanor under Penal Code section 17(b). Because the court did not address his request under section 17(b), on remand it must do so.
An order denying relief under section 1203.4 is appealable.
People v. Chavez (2016) 5 Cal.App.5th 110, 114
Section 1203.4 provides in pertinent part that a defendant who has fulfilled the conditions of probation for the entire period of probation is entitled as a matter of right to have the plea or verdict changed to not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed. If the petitioner meets the criteria for relief under section 1203.4, the trial court is required to grant the requested relief.
PEN 1203.4
People v. Hawley (1991) 228 Cal.App.3d 247, 249-250
People v. Guillen (2013) 218 Cal.App.4th 975, 991
People v. Lewis (2006) 146 Cal.App.4th 294, 297-298
As of 2023, section 1203.4 provides that a petition for relief under this section shall not be denied due to an unfulfilled order of restitution, and an unfulfilled order of restitution shall not be grounds for finding that a defendant did not fulfill the condition of probation for the entire period of probation.
PEN 1203.4(c)(3)(A) & (B)
When a crime is punishable as either a felony or a misdemeanor it is commonly referred to as a “wobbler,” and the trial court may reduce the offense to a misdemeanor at the time of granting probation, or on application of the defendant or probation officer thereafter. The court has broad discretion in deciding whether to reduce a wobbler to a misdemeanor. In exercising its discretion, the court considers several factors, including “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.
PEN 17(b)(3)
People v. Tran (2015) 242 Cal.App.4th 877,
People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
People v. Park (2013) 56 Cal.4th 782, 790-791
Grand theft by embezzlement of property valued at more than $950, the offense for which the defendant was convicted, is a wobbler. The trial court should have addressed the defendant’s request to reduce his felony conviction to a misdemeanor.
People v. Selivanov (2016) 5 Cal.App.5th 726, 75
The trial court’s finding that the People provided clear and convincing evidence to rebut the statutory presumption that defendant’s mental disorder was a significant factor in his commission of the offenses was not supported by substantial evidence. We remand to the trial court for a new diversion eligibility hearing under section 1001.36. If the court determines that defendant is eligible for diversion, it may grant his application. If the court determines defendant is ineligible, defendant’s convictions and sentence shall be reinstated.
The Legislature enacted sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants with qualifying mental disorders. To be eligible for mental health diversion, a defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders and the defendant’s mental disorder must be a significant factor in the commission of the offense. There is a presumption that a defendant’s mental disorder diagnosis, if the diagnosis occurred within the past five years, was a significant factor in the commission of the offense. Once a presumption is established, it is the People’s burden to provide clear and convincing evidence that defendant’s mental disorder was not a motivating, causal, or contributing factor to overcome it.
PEN 1001.35
PEN 1001.36
Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 678
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400
We review a trial court’s ruling on an application for mental health diversion for an abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on findings that are not supported by substantial evidence. By definition, ‘substantial evidence’ requires evidence and not mere speculation.
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401
People v. Moine (2021) 62 Cal.App.5th 440, 449
People v. Ramon (2009) 175 Cal.App.4th 843, 851
In reviewing a trial court’s finding that a fact has been proven by clear and convincing evidence, the question before us is whether the record contains evidence from which a reasonable fact finder could have found it highly probable that the disputed fact was true. We view the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence. Those inferences must be drawn from evidence rather than speculation
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402
People v. Ramon (2009) 175 Cal.App.4th 843, 851
The absence of evidence proving that defendant’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that the defendant’s mental disorder was not a factor in the commission of the offenses.
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 404
The trial court prejudicially erred when it sentenced the defendant to an upper term sentence without affording him a jury trial on aggravating factors. The trial court did not obtain defendant’s personal waiver of his right to a jury trial on the aggravating factors. Defendant’s trial counsel stipulated to a court trial on defendant’s behalf, but defendant did not personally stipulate to a court trial or waive the jury trial right. The court found the pleaded aggravating circumstances to be true after a court trial, in violation of defendant’s constitutional right to a jury. We cannot conclude beyond a reasonable doubt the jury would have found true that the defendant’s prior performance on post release community supervision was unsatisfactory. Because defendant was entitled to a jury trial at a minimum on this aggravating factor, we must remand the matter for a full resentencing to afford defendant that right.
A criminal defendant has a constitutional and statutory right to have a jury determine beyond a reasonable doubt the truthfulness of every aggravating circumstance used to increase the penalty for the crime. Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.
PEN 1170
Cal. Const., art. I, sec. 16
Cunningham v. California (2007) 549 U.S. 270, 288-289
People v. Lynch (2024) 16 Cal.5th 730, 757
People v. Wiley (2025) 17 Cal.5th 1069, 1084
Erlinger v. United States (2024) 602 U.S. 821, 838-840, 842
People v. French (2008) 43 Cal.4th 36, 4
The error is prejudicial unless we can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. Lack of a jury trial is not harmless if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.
People v. Lynch (2024) 16 Cal.5th 730, 768
Chapman v. California (1967) 386 U.S. 18, 24