Monthly Archives: October 2026

Discretion, Duty of the court, Standard of review, Sufficiency of and substantial evidence

Case 001123

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s request for mental health diversion after considering only one of the two available medical reports before determining that the defendant presented an unreasonable risk of danger to public safety within the meaning of section 1170.18.

(Gary note: as I explain below in a note to the Third Holding, that standard is slated to change 1/1/27.)

First Holding:

Section 1001.36 gives trial courts discretion to grant pretrial diversion for defendants with qualifying mental health disorders. The court may postpone prosecution to allow the defendant to receive mental health treatment. The Legislature intended the mental health diversion program to apply as broadly as possible.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626, 632

People v. Tourville (2026) 120 Cal.App.5th 439, 451

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Second Holding:

Defendants requesting mental health diversion have the burden to make a prima facie showing that they will meet the minimum requirements of eligibility for diversion and that they and the offense are suitable for diversion.

A defendant is eligible under section 1001.36(b) if:

(1) a qualified mental health expert has diagnosed the defendant within the last five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (with limited exceptions); and

(2) the defendant’s mental disorder was a significant factor in the charged offense.

Authority:

PEN 1001.36(b)

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

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

Third Holding:

A defendant is suitable for diversion under section 1001.36(c) if the defendant satisfies four requirements:

(1) a qualified mental health expert concludes 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; 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.

(Gary note: Effective 1/1/2027, the language in 1001.36(c)(4) regarding an unreasonable risk of danger to public safety (as defined in section 1170.18) changed to something much less favorable for seekers of diversion. AB 46 (enacted as Chapter 18) and AB 2273 (enacted as Chapter 298) amended section 1001.36 by changing and renumbering the “public safety” subdivision language to 1001.36(c)(D). Instead of incorporating the “superstrike” language of Penal Code section 1170.18, the language effective 1/1/27 will read “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community. …”)

Authority:

PEN 1001.36(c)

People v. Tourville (2026) 120 Cal.App.5th 439, 458

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

Fourth Holding:

Even if the defendant makes a prima facie showing he or she meets the statutory requirements, the trial court has residual discretion to deny diversion. The court must exercise its residual discretion consistent with the principles and purpose of the mental health diversion statutes.

Authority:

People v. Cabalar (2025) 117 Cal.App.5th 41, 53

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

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Fifth Holding:

We review the trial court’s order granting or denying a request for mental health diversion for abuse of discretion. The court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 135

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

(Gary note: The appellate court described confusion in the record as to whether the trial court had the second mental health report available or read it. The trial court denied the request for diversion on finding that the defendant posed an unreasonable danger to public safety as defined in section 1170.18. The appellate court remanded for the trial court to review that second report before making a determination on whether the defendant poses a reasonable risk of committing a so-called superstrike.

(As I noted above, however, that bar is lowered as of 1/1/27. Of course, the trial court should still consider the second report. The question I have and do not know the answer to is whether the defendant is entitled to the heightened standard as it existed at the time he made his request for diversion and as it stands as of the writing of this summary, or whether any delay in the new proceedings past 2026 will subject him to evaluation as a risk under the new lower bar. Was that a question? Hmmm. You get my drift, though, right?)

Discretion

Case 001122

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in denying the defendant’s motion to continue trial (set to begin within a week) for a referral for consideration of mental health diversion.

The judgment is reversed. The matter is remanded with directions that the defendant be given a reasonable opportunity to file an application for mental health diversion and, should she choose to file such an application, to have it considered on its merits.

First Holding:

We review a trial court’s denial of a request for a continuance for abuse of discretion. In Seigler, the defendant’s counsel filed a petition for mental health diversion and a request for a continuance on the day trial was to start. The court denied the requested continuance in part because counsel exhibited no diligence in filing the motion for a continuance and application for diversion on the day of trial.

The court in Seigler noted the record suggested mental health was an issue, defense counsel’s difficulty communicating with his client appeared to explain the failure to obtain a mental health evaluation, and the potentially enormous benefits of a continuance for the defendant outweighed any burden that granting it would cause.

Seigler’s reasoning applies with at least equal force in this case.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 600-601, 609-610

Second Holding:

A petition for mental health diversion is timely so long as it is made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.

Authority:

People v. Braden (2023) 14 Cal.5th 791, 819

Sentencing

Case 001121

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing the defendant to concurrent terms, because section 654 permits punishment on only one of them. The sentence on one of them must be imposed then stayed.

Holding:

Under section 654(a), an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one. If section 654(a) prohibits multiple punishment, the court must stay execution of the affected sentence. Both counts applied to the same act by the defendant, driving while under the influence of alcohol.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 337

People v. Alford (2010) 180 Cal.App.4th 1463, 1473-1474

Duty of the court, Jurisdiction, Pleading, Sentencing

Case 001120

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion for a Franklin hearing.

First Holding:

Franklin held that youth offenders must have an opportunity to put on the record information relevant to any eventual Penal Code section 3051 youth offender parole hearing.

Authority:

People v. Franklin (2016) 63 Cal.4th 261

In re Cook (2019) 7 Cal.5th 439

Second Holding:

The defendant committed his crime several decades earlier, when he was 21. After the defendant was sentenced, section 3051 became effective in 2014. Section 3051(b) requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th, or 25th year of a youth offender’s incarceration.

The date of the hearing depends on the youth offender’s controlling offense, defined as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment. The section applies to offenders like the defendant who committed their controlling offense when they were 25 years old or younger.

Authority:

PEN 3051

People v. Franklin (2016) 63 Cal.4th 261, 277

Third Holding:

After section 3051’s passage, Franklin held that the section contemplated that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate consideration by the board. Under section 3051(f)(2), persons with information about youth offender may submit statements for review by board. Assembling such mitigating information will typically be more easily done at or near the time of the juvenile’s offense.

Authority:

PEN 3051(f)(2)

People v. Franklin (2016) 63 Cal.4th 261, 283

Fourth Holding:

Cook held that youth offenders whose convictions are final may move in the trial court for a Franklin hearing under section 1203.01. Section 1203.01 provides that postjudgment, a trial court may generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation.

Authority:

In re Cook (2019) 7 Cal.5th 439

Fifth Holding:

The trial court erred in concluding it did not have jurisdiction to act because the filing of a notice of appeal on an earlier motion for discovery deprived the trial court of jurisdiction to proceed.

Generally, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until it determines the appeal and issues the remittitur, thereby divesting the trial court of jurisdiction over anything affecting the judgment.

However, appellate jurisdiction does not divest the trial court of all power to act. Perfection of an appeal stays proceedings in the trial court only of matters embraced in the matter being appealed. The trial court otherwise may act on any matter embraced in the action and not affected by the judgment or order on appeal.

Authority:

CCP 916

People v. Flores (2003) 30 Cal.4th 1059, 1064

Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089

Sixth Holding:

The Franklin motion was unaffected by and unrelated to the order on appeal. That is, the appeal pending when the defendant filed his Franklin motion concerned a motion for postconviction discovery. In contrast, proceedings under Franklin constitute a remedy of evidence preservation.

Also, Franklin proceedings are unrelated to the validity of the defendant’s sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process disturbs the finality of state convictions. Thus, the Franklin hearing the defendant requested was not embraced in the order on appeal and therefore the trial court had jurisdiction to hear his motion.

Authority:

In re Cook (2019) 7 Cal.5th 439, 446-447, 451

People v. Lizarraga (2020) 56 Cal.App.5th 201, 207 [Franklin hearing does not expose a defendant to increase or decrease in sentence]

Seventh Holding:

The court erred in denying the motion as not being in compliance with Cook. The defendant’s motion was sufficient to initiate Franklin proceedings. The requirements for a Franklin motion are minimal, and the motion need not describe in detail the evidence the youth offender seeks to preserve. Instead, where a motion includes relevant criminal case information and legal authority and establishes eligibility for a youth offender parole hearing, the motion should be granted.

Here, the defendant’s motion cited section 1203.01 and 3051 and Cook in his motion. He stated his qualifying age, the original case number. He identified the controlling offense of murder, requested counsel, said he had never had a Frankling hearing, and asked for an opportunity to make a record of his characteristics as a youth offender. Based on this information, the trial court should have granted the defendant’s motion to initiate Franklin proceedings.

We express no opinion on whether the trial court must hold a formal Franklin hearing.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150, 152 [legally sufficient Franklin motion only requires defendant be given opportunity to place additional evidence in record]

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 893–894 [trial court erred by denying Franklin motion that identified original case, relevant law, defendant’s age, sentence, and relief requested]

In re Cook (2019) 7 Cal.5th 439, 446-447, 459 [court has discretion to determine how to conduct process efficiently]

Sentencing

Case 001119

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one more day of credit for time served.

Holding:

A defendant convicted of a felony or misdemeanor shall be credited for all days in custody. Days in custody include the day of arrest through and including the day of sentencing.

(Gary note: I suspect that this error crops up when the person calculating the days in custody simply subtracts the date of arrest from the date of sentencing. For example, supposed a defendant is arrested on January 1 and is sentenced on January 30. Subtracting the date of arrest from the sentencing date yields 30 days (31-1=30).

(But days in custody are to be calculated on a counting basis, not on a “find the difference between two dates” subtraction basis. Since the credit for time served includes the date of arrest and the date of sentencing, counting Jan 1 through Jan 31 yields 31 days credit for actual days in custody.)

Authority:

PEN 2900.5(a)

People v. Buckhalter (2001) 26 Cal.4th 20, 30

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48