Monthly Archives: August 2026

Due process, Equal protection, Fines and fees, Sentencing

Case 000580

Posted on by Gary McCurdy

Error and/or relief

Judgment is reversed and remanded for the court to consider the fines and fees imposed with regard to ability to pay and under the excessive fines doctrine.

First Holding:

In Kopp, the Supreme Court addressed how court-ordered payments should be analyzed when a defendant claims inability to pay. There are three categories: fines, ancillary costs, and victim restitution. “Fines” refers to penalties inflicted by the sovereign for commission of offenses. I.e., “fine” refers to a legislatively provided punishment following a criminal conviction.

By contrast, “ancillary costs” refers to payments that are generally not intended to punish for the commission of a crime but instead are funding mechanisms, created by the Legislature to reimburse a government agencies for expenditures or to otherwise fund a broad assortment of services. “Restitution” refers to payments made to compensate crime victims for economic loss caused by an offense.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 9, 11-12

Second Holding:

Restitution fines under section 1202.4 constitute punishment and therefore fines rather than true restitution and that parole revocation restitution fines under section 1202.45—which are in the same amount as restitution fines—are likewise punitive and therefore fines. Such fines do not need to be structured to reflect each person’s ability and avoid disproportionate burdens. Accordingly, due process does not require courts to consider the ability of defendants to pay fines before imposing them. Instead, excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14, 22-23

Bearden v. Georgia (1983) 461 U.S. 660, 666, fn. 8

San Antonio Independent School Dist. v. Rodriguez (1973) 411 U.S. 1, 22

Third Holding:

Ancillary costs or assessments should be imposed on criminal defendants only if they have the ability to pay the costs, on equal protection grounds. Kopp noted that the Legislature has enacted a robust fee waiver system in civil cases. In addition, because both the civil operations and facilities assessments imposed on the defendant in Kopp were enacted to raise money for the courts and were ultimately deposited into the same fund, the Supreme Court concluded that there appears no rational basis to deny only indigent criminal defendants the ability to avoid those costs.

Accordingly, the court in Kopp directed the trial court on remand to consider the defendant’s ability to pay before imposing a court operations assessment under section 1465.8 or a court facilities assessment under Government Code section 70373.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 24-30

Racial Justice Act

Case 000579

Posted on by Gary McCurdy

Error and/or relief

The defendant challenges the trial court’s summary denial of his motion for relief pursuant to the California Racial Justice Act of 2020. We agree he made a prima facie showing of an RJA violation. We conditionally reverse and remand for an evidentiary hearing.

First Holding:

The Racial Justice Act (RJA) provides: The state shall not seek or obtain a criminal conviction on the basis of race, ethnicity, or national origin. One way to show an RJA violation is by proving a law enforcement officer involved in the case exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin. If the defendant makes a prima facie showing of a violation, the trial court must hold an evidentiary hearing.

Authority:

PEN 745

Second Holding:

The trial court erred in concluding that an officer whose comments may have indicated improper racial consideration was not involved in the case. The statute does not require the officer to be integral to the investigation, just somehow involved. The officer’s action in interviewing the victim constitutes involvement. A prima facie showing means that the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of subdivision (a) occurred. A substantial likelihood requires more than a mere possibility, but less than a standard of more likely than not.

Authority:

PEN 745

Third Holding:

The trial court acted too soon by concluding that the officer was just “chatting about child molesters” and not directing his statements against the defendant’s heritage. The proper construction of the officer’s comments needed to be resolved at an evidentiary hearing. That is where the court can determine, as the trial court here aptly phrased it, whether a statement that may have some race or culturally related context actually showed bias or animus. A conditional reversal is warranted for the court to hold an evidentiary hearing.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23

People v. Howard (2024) 104 Cal.App.5th 625, 656

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000578

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the trial court’s finding that placing the defendant on mental health diversion would present an unreasonable risk of danger to public safety. The denial of the request for diversion under section 1001.36 is reversed and remanded for further proceedings.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The statute defines pretrial diversion as the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.

The maximum period of diversion is two years. If the defendant performs satisfactorily in diversion, then at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion, and the arrest upon which the diversion was based shall be deemed never to have occurred.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626

Second Holding:

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 specified 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).

Only the public safety suitability requirement necessitates a trial court finding.

Authority:

PEN 1001.36(b) and (c)

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

Third Holding:

As used throughout the Penal Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv), which numerates particularly serious or violent felonies, known colloquially as “super strikes.”

Super strikes include any homicide offense, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony punishable by life imprisonment or death.

Authority:

PEN 1172.18

People v. Valencia (2017) 3 Cal.5th 347, 351

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892, fn. 4

Fourth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

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

Fifth 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.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

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

Wade v. Superior Court (2019) 33 Cal.App.5th 694, 710

People v. Williams (2021) 63 Cal.App.5th 990, 1001 [scope of discretion always resides in the particular law being applied]

Sixth Holding:

A trial court’s ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence. A trial court has broad discretion to determine whether a given defendant is a good candidate for mental health diversion. 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, 449

People v. Oneal (2021) 64 Cal.App.5th 581, 588

People v. Curry (2021) 62 Cal.App.5th 314, 324

People v. Bunas (2022) 79 Cal.App.5th 840, 848–849

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Seventh Holding:

Section 1001.36(e) provides that the hearing on a defendant’s eligibility and suitability shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. In general, the court will find hearsay evidence trustworthy when there are sufficient indicia of reliability. The court, however, may not rely on unsubstantiated or unreliable evidence.

Authority:

People v. Buell (2017) 16 Cal.App.5th 682, 689 [hearsay that bears a substantial guarantee of trustworthiness is admissible in probation revocation proceedings]

Elements of crime, Equal protection, Standard of review, Sufficiency of and substantial evidence

Case 000577

Posted on by Gary McCurdy

Error and/or relief

The conviction of section 270 must be reduced from a felony to a misdemeanor.

First Holding:

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.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This determination presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. In considering a sufficiency challenge, we do not reweigh evidence or reevaluate a witness’s credibility.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Oyler (2025) 17 Cal.5th 756, 820

Second Holding:

Section 270 (failure to provide necessities to a minor child) states that violation is a misdemeanor unless a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication. While felony punishment can be imposed constitutionally on persons previously found guilty of a violation of section 270, the statute violates equal protection to the extent felony punishment is grounded solely on an earlier legal determination of paternity.

Authority:

PEN 270

People v. Gregori (1983) 144 Cal.App.3d 353, 356

Abstracts and Minutes, Elements of crime, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000576

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the jury’s verdict, the abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[Gary note: there was no legal analysis presented on the probation conditions issues, because the People agreed they were improper, and the court accepted the concession without further discussion or citation to authority.]

First Holding:

The abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[GARY note: the appellate court did not cite authority for its order to correct the abstract of judgment, but there is considerable authority that the court could have relied on, which I set forth below:]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In evaluating whether the evidence was sufficient to support a guilty verdict, we consider only the evidence presented and we disregard the jury’s not guilty or not true findings on other counts or enhancements.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 319

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Price (2017) 8 Cal.App.5th 409, 452–453

People v. Miranda (2011) 192 Cal.App.4th 398, 405–406

Third Holding:

Great bodily injury under section 245 is defined as an injury that is greater than minor or moderate harm. A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Where to draw that line is for the jury to decide. Great bodily injury can include contusions, abrasions, lacerations, and bruising.

The use of hands or fist alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which force was applied.

Whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. In this context, likely to produce great bodily injury means more than a mere possibility. The evidence must prove more than a mere possibility that the force actually used would result in greater than moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Cross (2008) 45 Cal.4th 58, 64

People v. Escobar (1992) 3 Cal.4th 740, 752

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

People v. Wingo (1975) 14 Cal.3d 169, 176

People v. Medellin (2020) 45 Cal.App.5th 519, 527-528

People v. Thiel (2016) 5 Cal.App.5th 1201, 1213

In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161–1162 [rejecting defendant’s argument that one blow to the face of the victim could not have been likely to cause great bodily injury]

People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [the statute focuses on force likely to produce great bodily injury; whether the victim in fact suffers any harm is immaterial]