Monthly Archives: September 2026

Appellate Principles, Discretion, Standard of review

Case 000851

Posted on by Gary McCurdy

Error and/or relief

We conclude the trial court erred when it denied mental health diversion under Penal Code section 1001.36, conditionally reverse the judgment, and remand the matter for the court to reconsider the defendant’s motion.

First Holding:

Diversion under section 1001.36 postpones criminal proceedings to allow the defendant to undergo mental health treatment, subject to specified conditions. It is intended to mitigate the entry and reentry of people with mental disorders into the criminal justice system by addressing their unique needs while simultaneously protecting public safety. A recognition that incarceration accomplishes little to deter lawlessness, but successful mental health treatment helps individuals and makes communities safer, led the Legislature to create and then expand this pretrial diversion.

Authority:

PEN 1001.35(a)(c)

People v. Braden (2023) 14 Cal.5th 791, 801

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

Second Holding:

To qualify for mental health diversion, defendants must meet the two eligibility criteria under section 1001.36(b), and the four suitability criteria set forth in subdivision (c) of that section.

Authority:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 685

Third Holding:

Eligible defendants are suitable for diversion where (1) in the opinion of a qualified mental health expert the defendant’s mental disorder would respond to treatment; (2) the defendant consents to diversion and agrees to waive his or her speedy trial rights; (3) the defendant agrees to comply with treatment requirements; and (4) if treated in the community, the defendant will not pose an unreasonable risk of danger to public safety’ as defined in section 1170.18, which concerns the risk the defendant will commit violent felonies colloquially referred to as super strikes.

Authority:

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

Fourth Holding:

Even when the defendant makes a prima facie showing of meeting the statutory eligibility and suitability criteria, the court may nonetheless exercise its discretion to deny diversion.

But this residual discretion must be exercised consistent with the principles and purpose of the governing law, including the strong legislative preference for treatment of mental health disorders given the resulting benefits 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 679

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

Fifth Holding:

We review a trial court’s ruling on a request for mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary 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:

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687

People v. Tourville (2026) 120 Cal.App.5th 439, 453

Sixth Holding:

A ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.

Authority:

People v. Turner (2020) 10 Cal.5th 786, 807

Seventh Holding:

The court erred in finding the defendant not suitable for diversion because of his repeated failures to comply with other forms of supervision. It was an abuse of discretion to deny diversion based on such reasoning, whether on the ground that the defendant’s symptoms would not respond to treatment  or on the ground that the recommended treatment plan would not meet his or her needs.

Authority:

PEN 1001.36(c)(1), (f)(1)(A)(i)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 893-894

Eighth Holding:

We will conditionally reverse the judgment and remand the matter for the trial court to reconsider the defendant’s motion for mental health diversion, bearing in mind the statutory principles and purpose of the statute, including the goal of promoting increased diversion of individuals with mental disorders to mitigate their entry and reentry into the criminal justice system.

We express no opinion as to how the court should rule on remand. Still, we observe that denying diversion based on a defendant’s treatment history may be a proper exercise of discretion if the proposed treatment plan is no different from one that failed in the past.

On the other hand, a defendant’s failure to benefit from past treatment may not support an order denying diversion where the proposed treatment plan adequately addresses the defendant’s mental health needs and is significantly different from the prior treatment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 892, 895

People v. Russo (2026) 121 Cal.App.5th 134, 139

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 894-895

Abstracts and Minutes, Appellate Principles

Case 000850

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment should be corrected to accurately reflect that the crime-bail-crime enhancements were stayed.

Holding:

The abstract of judgment does not include the crime-bail-crime enhancements, and the court did not address them at sentencing. However, the minutes from the sentencing hearing state that punishment under section 12022.1(b) was stayed.

When a trial court’s intention is clear, we need not remand for resentencing, but can modify the judgment to reflect the intent of the trial court. Here, it is clear the court intended to stay the crime-bail-crime enhancements but failed to include the stayed enhancements on the abstract of judgment. Accordingly, we modify the judgment to reflect that the crime-bail-crime enhancements were imposed and stayed.

Authority:

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Discretion, Duty of the court, Fines and fees, Sentencing

Case 000849

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing held under section 1172.75, the resentencing court erred by (1) imposing consecutive sentences on the defendant’s attempted murder and felon in possession of a firearm counts because the court was unaware of its discretion to impose concurrent terms, (2) not recalculating custody credits, and (3) reimposing a restitution fine under section 1202.4.

First Holding:

When the Three Strikes law applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses occur on separate occasions and do not arise from the same set of operative facts.

Conversely, where a sentencing court determines that two or more current felony convictions were either committed on the same occasion or arise from the same set of operative facts, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.

Authority:

PEN 667(c)(6)

People v. Henderson (2022) 14 Cal.5th 34, 45

People v. Lawrence (2000) 24 Cal.4th 219, 233

Second Holding:

When the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

Authority:

People v. Brown (2007) 147 Cal.App.4th 1213, 1228

Third Holding:

The attempted murder and felon in possession of a firearm counts were based on the defendant’s possession and use of the same firearm. There is no suggestion that the defendant possessed more than one gun when he committed the offenses.

Because the attempted murder and felon in possession of a firearm counts arose from the same set of operative facts, the resentencing court had discretion to impose concurrent sentences. Remand for resentencing is appropriate as the court was unaware of its discretion, and there is no indication that had it been aware of its discretion, it would nevertheless have imposed consecutive terms.

Authority:

People v. Garcia (2008) 167 Cal.App.4th 1550, 1567

People v. Deloza (1998) 18 Cal.4th 585, 600

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

Fourth Holding:

When a felony sentence is modified during the term of imprisonment, the trial court must recalculate and credit the actual time defendant had served on his sentence prior to the modification. Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. On remand, the resentencing court must recalculate the defendant’s custody credits for actual time served.

Authority:

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

Fifth Holding:

The restitution fine imposed under section 1202.4 must be vacated under section 1465.9. Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Because the defendant’s restitution fine was imposed more than 10 years ago, any balance is unenforceable and uncollectable by operation of law. The fine must be vacated

Authority:

PEN 1465.9

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000848

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing an indeterminate sentence on the attempted sodomy conviction and failed to properly calculate the defendant’s determinate sentence.

First Holding:

In evaluating claims of insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.

We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence. A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. We may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses.

Authority:

People v. Elliot (2005) 37 Cal.4th 453, 466

People v. Ochoa (1993) 6 Cal.4th 1199, 1206

People v. Bolin (1998) 18 Cal.4th 297, 331

Second Holding:

Under either simple or aggravated kidnapping, the asportation element requires that the movement be more than that which is merely incidental to the commission or attempted commission of the associated crime.

Simple kidnapping requires that the defendant moved the victim a substantial distance, but no minimum distance is required.

The aggravated kidnapping circumstance, however, also requires that the movement substantially increased the risk of harm to the victim beyond that inherent in the underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

People v. Waqa (2023) 92 Cal.App.5th 565, 577-578

Third Holding:

The crime of attempted sodomy is not subject to the One Strike law under section 667.61(c). Thus, it was error to impose an indeterminate sentence for that offense.

Authority:

PEN 667.61

People v. Rodriguez (2012) 207 Cal.App.4th 204, 217

Fourth Holding:

Sentencing a defendant for offenses subject to determinate terms involves a three-step process:

First, the trial court is required to select a base term—either the statutory low, middle or upper term—for each of the crimes.

Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the greatest selected base term as the principal term and the other crimes as subordinate terms.

Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively.

A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term. The court did not follow this procedure on three of the counts, and resentencing is required.

Authority:

PEN 1170.1

People v. Rodriguez (2012) 207 Cal.App.4th 204, 211-212

Fifth Holding:

Generally, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

This rule does not apply, however, when a trial court imposes an unauthorized sentence. In such cases, courts may impose the proper judgment on remand even though it is more severe than the original unauthorized pronouncement.

Authority:

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

People v. Burhop (2021) 65 Cal.App.5th 808, 814 [An unauthorized sentence renders the unlawful part of a judgment of conviction and sentence void and correctable at any time.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21 [We must correct an unauthorized sentence even where the corrected sentence results in a longer term.]

Sixth Holding:

Here, the trial court’s sentence on count 4 of an indeterminate term of 25 years to life was unauthorized and must be corrected. Likewise, the court’s failure to designate a principal term among counts 6 through 8 amounted to an unauthorized sentence. Accordingly, the trial court is not constrained by the length of the original determinative sentence for purposes of resentencing.

Authority:

People v. Neely (2009) 176 Cal.App.4th 787, 797–798 [court erroneously applied principal term/subordinate term methodology set forth in sec. 1170.1 to all the offenses when it imposed one-third of the middle term sentences for the determinate term offenses]

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000847

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to award credit for the time the defendant served in custody. The court imposed a restitution fine that should have been vacated. The court imposed repealed fees. Remanded for the trial court to correct these errors, along with errors in the abstract of judgment.

First Holding:

Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.

A court resentencing a defendant must credit the defendant with all actual days he had spent in custody, whether in jail or prison, up to that time. The updated total of credit must then be added to the abstract of judgment.

Here, the most recently amended abstract reflects no credit for time served. On remand, the trial court will need to recalculate the number of days the defendant spent in custody from the initial sentencing through the date of the resentencing and prepare an updated abstract of judgment.

The abstract of judgment must be corrected to reflect the correct date that the new sentence was pronounced at the resentencing hearing, not the date of the original sentencing.

Authority:

PEN 2900.1

PEN 2900.5

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

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125, 1129-1130

Second Holding:

The restitution fine imposed under section 1202.4 at the original sentencing in 2011 must be vacated. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

The trial court was not authorized to impose fees under former Government Code section 29550.2. The Legislature repealed that statute effective July 1, 2021. (Stats. 2020, ch. 92, sec. 25.) Even if Government Code section 29550.2 were still in effect, the Legislature has declared such fees unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Fourth Holding:

We note a clerical error in the most recently amended abstract of judgment. The abstract includes a solitary numeral “1” in section 3 of the enhancements section. The numeral is listed without an identifying label and is not included in the aggregate sentence. Presumably, this numeral is left over from the prior prison term enhancement that was stricken by the trial court at resentencing and should be deleted. We will direct the trial court to correct the amended abstract of judgment by deleting this errant numeral.

(Gary note: The court did not cite any authority for its order directing correction of the abstract of judgment, but the law is clear that it has that authority. I have listed below some cases the court could have cited as authority.)

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