Monthly Archives: August 2026

Amelioration, Fines and fees, Sentencing

Case 000620

Posted on by Gary McCurdy

Error and/or relief

At a full resentencing conducted while vacating the defendant’s one-year prior prison sentence enhancements pursuant to Penal Code section 1172.75, the trial court declined to consider whether two of defendant’s prior “strike” convictions were still valid under the Three Strikes Reform Act of 2012, denied his request to dismiss those strikes under section 1385, imposed a new 10-year criminal protective order, and re-imposed a $5,000 restitution fine.

The matter is reversed for the court to hold a full resentencing hearing and exercise its discretion on whether or not to strike the prior convictions. Further, the court had no jurisdiction to reimpose a restitution fine because it had been ordered more than 10 years earlier and was rendered expired.

First Holding:

Under section 1172.75, a defendant who is eligible to have a prior prison sentence enhancement stricken is entitled to a full resentencing, at which time the trial court is to apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

PEN 1172.75

People v. Espino (2024) 104 Cal.App.5th 188, 193, 195, review granted* Oct. 23, 2024, S286987

[*Gary note: The Supreme Court issued its opinion in Espino on July 2, 2026, and affirmed the result in the Court of Appeal Espino decision–that a person is entitled to relief under section 1172.75 even if the punishment for the now-invalid prior prison term enhancement was stricken–resolving a question that was left unanswered in People v. Rhodius (2025) 17 Cal.5th 1050)]

People v. Green (2024) 104 Cal.App.5th 365, 373

Second Holding:

In Guevara, our Supreme Court held that a trial court engaged in a full resentencing under section 1172.75 of a person serving a life sentence under the Three Strikes Law must apply the Three Strikes Reform Act of 2012, including its provision according trial courts a discretionary override—as to defendants who would otherwise be eligible for relief—not to grant relief if the court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850

Third Holding:

Reversal and remand are necessary so that the trial court may consider whether the Reform Act would apply to the third-strike sentences imposed in this case and, if so, whether exercise of the court’s discretionary override is warranted. On remand, the court may also entertain any further requests to dismiss the prior strike convictions under section 1385(a)—but not under section 1385(c).

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 243-244

Fourth Holding:

However, the court may not impose a restitution fine pursuant to section 1202.4(b) because the 2025 amendment to section 1465.9 provides that a restitution fine expires 10 years after the date of imposition. Because the restitution fine in this case was imposed over 25 years ago, it expired and may not be reimposed.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another point)

Abstracts and Minutes

Case 000619

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be modified to reflect a four-year arson enhancement under section 451.1, subdivision (a)(5)—instead of subdivision (a)(1).

Holding:

The abstract reflects that the four-year arson enhancement was imposed under section 451.1(a)(1). The record demonstrates, however, that this enhancement was charged and proven based on appellant’s use of a device designed to accelerate the fire. That enhancement falls within subdivision (a)(5) of that statute. As such, we agree with appellant’s counsel that it is appropriate to order the abstract of judgment amended to reflect the proper subdivision.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time]

Discretion, Standard of review

Case 000618

Posted on by Gary McCurdy

Error and/or relief

We will reverse the conviction and remand for the trial court to reconsider defendant’s suitability for mental health diversion according to the factors in section 1001.36(c) and defendant’s current circumstances. To the extent the court exercises its residual discretion under section 1001.36(a), it must take into account the Legislature’s intent and the statute’s underlying purposes.

Although we express no opinion as to how the court should decide the matter on remand, we note that the suitability inquiry must be informed not only by defendant’s past performance but also by his present circumstances and prospects for diversion compliance.

First Holding:

Since 2018, section 1001.36 has afforded trial courts discretion to grant criminal defendants suffering from certain recognized mental disorders pretrial diversion to receive mental health treatment. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The express purpose of the legislation was to increase diversion of eligible individuals, and legislative amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

People v. Brown (2024) 101 Cal.App.5th 113, 119

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890-891

Second Holding:

As currently enacted, a defendant accused of a qualifying offense is eligible for mental health diversion if the defendant has been diagnosed with a qualifying mental health disorder which was a significant factor in the commission of the charged offense. If a defendant is found eligible for mental health diversion, a trial court must also consider whether the defendant is suitable for diversion.

According to the statute, a defendant is suitable for diversion if, in the opinion of a mental health expert, the defendant’s symptoms would respond to treatment; the defendant consents to diversion and waives his right to a speedy trial; the defendant agrees to comply with treatment; and the defendant will not pose an “unreasonable risk of danger to public safety” as defined in section 1170.18.

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the defendant will commit one of certain enumerated violent felonies, known colloquially as “super strikes.”

Authority:

PEN 1001.36

PEN 1170.18

Third Holding:

Even if a defendant meets the enumerated suitability criteria, a trial court retains discretion to deny diversion. But that residual discretion must be exercised consistent with the principles and purpose of the governing law. We review a decision to deny diversion for abuse of discretion.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887, 888, 891

Fourth Holding:

We see no substantial evidence in the record that would have supported an unsuitability finding as defined under the statute. Section 1001.36(c) prescribes specific suitability factors and does not expressly contemplate a finding of unsuitability based on other factors not identified in the statute. We acknowledge it is possible to construe the court’s finding of unsuitability as an exercise of its residual discretion under section 1001.36(a).

But the only reasoning articulated by the court involved defendant’s criminal history and past failures to appear (which could themselves have been connected to a mental health disorder), his past difficulties complying with treatment (notwithstanding the evaluators’ conclusions about his prospects for future treatment), and the circumstances of the charged offense. The trial court’s statement of the reasons for its decision thus did not reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893

Discretion, Standard of review

Case 000617

Posted on by Gary McCurdy

Error and/or relief

The petitioner unsuccessfully moved for mental health diversion under Penal Code section 1001.36. In petitioning this court for a writ of mandate, the petitioner contends that the trial court erred in finding him ineligible on six counts and eligible but unsuitable on the seventh count. We agree. We therefore grant the petition and direct the trial court to vacate its order denying the motion for mental health diversion and hold a new hearing on the motion.

First Holding:

In 2018, the Legislature enacted section 1001.36 to create a program of pretrial diversion for criminal defendants with diagnosed mental health disorders. Diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment.

The express purpose of this legislation was to increase diversion of such individuals based on concerns that incarceration only serves to aggravate their preexisting conditions and does little to deter future lawlessness. Successful mental health treatment, in contrast, both helps the individual and makes the community safer. More recent amendments have only confirmed the Legislature’s desire to expand mental health treatment through diversion.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890-891

Second Holding:

Effective January 1, 2023, mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specific in the statute.

Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.

They are suitable if: (1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (2) the defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

Third Holding:

A defendant’s eligibility no longer turned on findings to the court’s satisfaction. Rather, defendants are generally eligible if they have been diagnosed with a recognized mental disorder. Beyond that, the amended statute creates a presumption that the defendant’s diagnosed mental disorder was a significant factor in the commission of the charged crime.

The court is directed to find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. In practical terms, following the 2022 amendments, defendants with a proper mental health diagnosis will seldom be ineligible for diversion. The more difficult question will be determining whether they are suitable.

Authority:

PEN 1001.36

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Fourth Holding:

We review for substantial evidence a court’s finding by clear and convincing evidence that a mental disorder was not a motivating factor, causal factor, or constributing factor. We consider whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

Authority:

PEN 1001.36(b)(2)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

Fifth Holding:

Of the four factors set forth in the statute regarding suitability, only the fourth necessitates a trial court finding–that the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. But that risk is severely limited by incorporation of sections 1170.18 and 667(e)(2)(C)(iv) as the definition of unreasonable risk of danger to public safety and the list of felonies conviction of which would preclude eligibility.

Authority:

PEN 1001.36

PEN 1170.18

PEN 667(e)(2)(C)(iv)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892

Sixth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

That purpose includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892-893

Seventh Holding:

To the extent the court’s finding of unsuitability could be based on any of the four eligibility factors, it is unsupported by substantial evidence.

Authority:

Flareau v. Superior Court of Riverside County (2026) 118 Cal.App.5th 681, 690 [when reviewing the trial court’s suitability finding, we must determine whether substantial evidence supports the trial court’s findings concerning the four suitability factors]

Eighth Holding:

The People argue that the trial court’s suitability finding was instead its use of its residual discretion. If that is the case, however, the trial court abused its discretion by failing to consider the underlying purposes of section 1001.36 or explain why diversion would not meet those goals.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893

Duty of counsel, Effective assistance of counsel, Sentencing

Case 000616

Posted on by Gary McCurdy

Error and/or relief

The judgment is affirmed as to all verdicts and findings made at trial, but the sentence is vacated and the cause is remanded for a new sentencing hearing. The defendant’s attorney’s assistance was ineffective by counsel’s failure to argue a statutory mitigatory factor at the sentencing hearing.

First Holding:

When an enhancement is pleaded and proven, the sentencing court is ordinarily presented with a binary choice: impose the additional punishment or strike/dismiss the enhancement.

Section 1385(c) provides, in pertinent part, that notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

In exercising that discretion, section 1385 lays out nine factors in mitigation for the court to consider and afford great weight to. Proof of one or more of the listed circumstances weighs greatly in favor of dismissing the enhancement, in the absence of a finding that dismissal would endanger public safety.

One of the listed circumstances (1385(c)(2)(B)) is “Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.” Rules of Court, rule 4.423(b)(1) mirrors that mitigation factor.

Authority:

PEN 1385(c)

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Second Holding:

If the sentencing court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement. This means that, absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1036

Third Holding:

A defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Fourth Holding:

To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial.

Reviewing courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.

Because the presumption of counsel’s competence can typically be rebutted only with evidence outside the record, ineffective assistance claims are normally raised in habeas corpus proceedings where such evidence can be presented. Defendants who present IAC claims on direct appeal bear a heavy burden. If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.

Put differently, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Scott (1997) 15 Cal.4th 1188, 1211

Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–692

In re Scott (2003) 29 Cal.4th 783, 811–812

People v. Arce (2014) 226 Cal.App.4th 924, 930

People v. Garcia (2022) 76 Cal.App.5th 887, 900

People v. Carter (2005) 36 Cal.4th 1114, 1189

People v. Weaver (2001) 26 Cal.4th 876, 926

Fifth Holding:

Defendant’s trial counsel did not file any sentencing memoranda. Assuming counsel was aware of the relevant sentencing laws concerning multiple enhancements, counsel nevertheless failed to promote their proper application and pursue the most advantageous disposition for his client. Counsel also failed to object to the erroneous contention in the probation report, and in the prosecutor’s argument at sentencing, that there were no mitigating circumstances. There is no conceivable strategic or tactical explanation for counsel’s omissions.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351

Sixth Holding:

When a stay of punishment is required under section 654, a trial court has discretion to choose which count will serve as the principal term without regard to the longest potential term of imprisonment. Here, the court stated its intention to use count 1 as the principal term before defense counsel presented his arguments at the sentencing hearing. The attorney was thus aware defendant’s prison term would be based on the offense that included two enhancement findings.

We are unable to conceive of a rational, tactical reason for counsel’s failure to request the dismissal of at least one enhancement pursuant to section 1385(c)(2)(B).

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 688, citing sec. 654(a), as amended by AB 518 (2021–2022 Reg. Sess.)

Seventh Holding:

Counsel alluded to the defendant’s childhood trauma, but only in a passing reference to the diagnosis mentioned in the probation report. He made no effort to link that potential mitigating circumstance to the offense. As made plain by the statutory text, the mere fact a defendant has suffered past trauma is insufficient—such trauma must be a contributing factor in the commission of the offense for the low term presumption to apply.

Authority:

People v. Knowles (2024) 105 Cal.App.5th 757, 765

Eighth Holding:

In the context of appellate representation, where appellate counsel fails to raise a significant and obvious issue, the failure will generally be considered deficient performance under Strickland if the missed issue is clearly stronger than those presented. Similar reasoning can be applied to the performance of defendant’s trial counsel at sentencing. Advocating for dismissal of an enhancement under section 1385(c)(2)(B) would have been an objectively stronger argument, by a wide margin, than the generalized request for leniency based on defendant’s educational achievements.

Authority:

In re Hampton (2020) 48 Cal.App.5th 463, 477

Ninth Holding:

Objections can be made during and even after the formal pronouncement of judgment. Once it became clear the court was imposing the middle term, defense counsel had nothing to lose by pointing out the applicability of section 1385(c)(2)(B). At the very least, doing so would have preserved the issue for appellate review.

Failure to present any objections or argument regarding section 1385 fell below the minimum standards of performance required of a defense attorney.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 755

People v. Steele (2000) 83 Cal.App.4th 212, 226 [finding forfeiture where defendant did not object either before or after pronouncement of sentence, despite the opportunity to do so]

Tenth Holding:

Prejudice flowing from ineffective assistance is established by showing there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The burden requires more than speculation as to the effect of the errors or omissions of counsel. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 694

People v. Williams (1988) 44 Cal.3d 883, 937