Monthly Archives: September 2026

Discretion, Standard of review, Statutory interpretation

Case 000981

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion after finding that the defendant is NOT likely to commit a super strike offense.

We reverse the judgment and direct the court to vacate its order denying mental health diversion and enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion.

First Holding:

The defendant obtained a certificate of probable cause and appealed the denial of his motion for mental health diversion. Appeal lies from the judgment.

Authority:

PEN 1237.5 [appeal may be taken after a no contest plea if the court issues a certificate of probable cause]

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

Second Holding:

We review the diversion denial order for abuse of discretion, meaning the decision is arbitrary or capricious, applied the wrong legal standard, or is unsupported by substantial evidence.

Authority:

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

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

The diversion law promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. The potentially ameliorative benefit for criminal defendants who suffer from a qualifying mental disorder is balanced against protecting public safety. The law is intended to apply as broadly as possible.

Authority:

PEN 1001.35(a)

People v. Frahs (2020) 9 Cal.5th 618, 630-631

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Fourth Holding:

A defendant charged with a felony may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for up to two years. If the defendant performed satisfactorily in diversion, 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.

In other words, the arrest upon which the diversion was based shall be deemed never to have occurred. If the defendant performs unsatisfactorily in a treatment program or engages in criminal conduct, the court may reinstate criminal proceedings.

Authority:

PEN 1001.36(f)(1)(A)(ii) and (C)(i), (g), and (h)

People v. Frahs (2020) 9 Cal.5th 618, 631

Fifth Holding:

A defendant is eligible for diversion if a mental health expert diagnoses the defendant with a qualifying mental disorder that was a significant factor in commission of the charged offense. A defendant is suitable for diversion if

(1) the expert opines that the defendant would respond to treatment;

(2) the defendant consents to diversion and waives the right to a speedy trial;

(3) the defendant agrees to comply with treatment; and

(4) the defendant will not pose an unreasonable risk of danger to public safety.

Authority:

PEN 1001.36(b) and (c)

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Sixth Holding:

The only disputed issue in this appeal is public safety. The Legislature defined “unreasonable risk of danger to public safety” by incorporating section 1170.18. Section 1170.18(c) defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony listed in section 667. The relevant violent felonies in section 667 are super strikes. Burglary–the charge the defendant faced–is not a super strike.

Courts limit discretion to deny diversion on “public safety” grounds to instances where a defendant is likely to commit a super strike.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1151

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

People v. Brown (2024) 101 Cal.App.5th 113, 121

People v. Graham (2024) 102 Cal.App.5th 787, 798–799

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690–691

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83, 87–88

People v. Tourville (2026) 120 Cal.App.5th 439, 454–455

Seventh Holding:

The Legislature is presumed to know about existing case law when it amends a statute. The Legislature amended section 1001.36 seven times between 2022 and 2026 without eliminating the reference to section 1170.18, despite the decisions cited above, which require a finding that the defendant poses a risk of committing super strikes.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

People v. Mitchell (2026) 19 Cal.5th 729, 743

People v. Frahs (2020) 9 Cal.5th 618, 634

Eighth Holding:

Beginning in 2027, courts applying section 1001.36 will no longer use the old definition of “unreasonable risk of danger to public safety” from section 1170.18. Instead, they will apply a new standard: “substantial and undue risk to the physical safety of another person.” Regardless of the forthcoming changes to section 1001.36, the version of the law applying to this defendant required a super strike finding.

The trial court found he did not pose a risk of committing super strikes, only that he poses an unreasonable risk of committing further residential burglaries. The court could not deny diversion based on a risk the defendfant will commit burglaries, thereby discounting the need to find public safety is imperiled by likely super strike offenses. The Legislature has specifically defined what constitutes ‘an unreasonable risk of danger to public safety’ under the statute, limiting it to the danger the defendant will commit a super strike.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 455

Ninth Holding:

Courts recognize “residual discretion” to deny diversion. However, while it is clear a trial court retains residual discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of public safety inconsistent with the specific statutory definition in section 1001.36(c)(4). In the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Tenth Holding:

Reasons the court might exercise discretion to deny diversion include lack of a treatment program; a defendant’s history of failed treatment or misconduct in prior programs; or the availability of a better program for the defendant’s needs.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 457

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 889–890

Abstracts and Minutes

Case 000980

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment reflects the wrong section for what the defendant was convicted of, and must be corrected.

Holding:

There are clerical errors in the abstract of judgment. Section 1 incorrectly indicates that for count 3, the defendant was convicted under section 451b) for the crime of arson of an inhabited structure or property. For that count, the jury actually convicted the defendant of arson of property of another pursuant to section 451(d). We will direct the superior court to correct both the code section and the description of the crime.

Authority:

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

Abstracts and Minutes

Case 000979

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s resentencing under section 1172.75, the amended abstracts of judgment fail to correctly capture the court’s calculation of custody credits and disposition of fines and fees. The clerk’s minutes reflect the same errors.

We will order the abstracts of judgment and minute order corrected to reflect the defendant’s [more than 10,000] additional days of actual credit and the trial court’s waiver of the restitution and parole revocation fees.

Holding:

Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

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

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing

Case 000978

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose the normal base term for several of his offenses in addition to the life terms under the Three Strikes law for those same offenses. The court failed to update the credit for time served. And the abstract of judgment misidentifies a second degree robbery as in the first degree, and must be corrected.

First Holding:

Where, as here, a defendant’s current sentence includes prison prior term enhancements rendered invalid under section 1172.75(a), the court shall recall the sentence and resentence the defendant. By its plain terms, section 1172.75 requires a full resentencing, not merely the striking of newly invalid enhancements.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

The Three Strikes law is a penalty provision, not an enhancement. It is not an enhancement because it does not add an additional term of imprisonment to the base term. Instead, it provides for an alternate sentence (25 years to life) when it is proven that the defendant has suffered the requisite number of convictions, prior and present. (At least two prior serious felony convictions, and the current offense being a qualifying offense for invocation of Third Strike sentencing.)

Authority:

People v. Williams (2014) 227 Cal.App.4th 733, 744

Third Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When a trial court pronounces an unauthorized sentence, the sentence may be set aside and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.

Authority:

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431–432

People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21

Fifth Holding:

The trial court erred in failing to update his presentence credits at the time of resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

The amended abstract of judgment incorrectly lists the defendant’s conviction in count 3 as one for first degree robbery, when in fact the conviction should be identified as one for second degree robbery. The abstract of judgment must be corrected.

(Gary note: Though the court discussed the need for amending the abstract of judgment for various reasons through the opinion, it did not cite authority for its order that it be corrected. There is plenty of authority available, of course. I have set out some cases the court could have drawn from, but there are undoubtedly many others.)

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

Appellate Principles, Jurisdiction, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000977

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the no-contact and stay-away orders imposed by the trial court as part of his prison sentence and as a condition of his parole following his conviction for petty theft and making criminal threats.

The Attorney General argues the defendant forfeited this issue by failing to object to the orders in the trial court.

We disagree and strike the no-contact and stay-away orders because the trial court lacked authority to issue them and otherwise affirm the judgment.

First Holding:

Normally, only claims properly raised and preserved by the parties are reviewable on appeal. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant.

We have, however, created a narrow exception to the waiver rule for unauthorized sentences or sentences entered in excess of jurisdiction.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Smith (2001) 24 Cal.4th 849, 852

Second Holding:

A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court. A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354

Third Holding:

The trial court did not have statutory authority to impose no-contact or stay-away orders in these circumstances. While there are statutory provisions that allow a trial court to impose no-contact and stay-away orders in other circumstances, for example, domestic violence cases, cases involving sexual assault of a minor, stalking cases, as a condition of probation, or during active criminal proceedings, there are no statutes specifically authorizing the trial court here to impose no-contact and stay-away orders as part of the defendant’s prison sentence or as a condition of his parole.

Authority:

PEN 1203.097

PEN 1202.05(a)

PEN 646.9(k)

PEN 1203.1(j)

PEN 136.2

Fourth Holding:

Ponce rejected the argument that that trial courts, independent of statutes, have inherent authority to protect trial participants, citing both California and federal cases. It held that even if the trial court had relied on inherent judicial authority to issue its order, the result would not change.

An existing body of statutory law regulates restraining orders. Inherent powers should never be exercised in such a manner as to nullify existing legislation. Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.

The trial court here should have refrained from acting because there is an existing body of statutory law regulating no-contact and stay-away orders.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 383-384

Fifth Holding:

The Legislature has adopted specific statutory provisions authorizing parole boards to impose no-contact and stay-away orders as a condition of parole. Under this statutory scheme, the victims here can request the parole board to include no-contact and stay-away orders as a condition of the defendant’s parole.

Additionally, Code of Civil Procedure section 527.6(a) authorizes trial courts to issue orders to protect against any threats or harassment after notice and hearing.

Therefore, because the Legislature already authorizes available procedures for no-contact and stay-away orders for the victims in this case, the trial court was not authorized to impose them under its inherent authority.

Authority:

PEN 3053.2(a) [the parole board must impose a no-contact order as a condition of parole if requested by the victim]

PEN 3053(a) [the parole board may also impose on the parole any conditions that it may deem proper]

CCP 527.6(a)