Daily Archives: October 26, 2026

Discretion, Sentencing, Standard of review

Case 001129

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying mental health diversion. There was insufficient evidence to support the court’s determination that she was at risk of committing a super strike offense if treated in the community.

First Holding:

To qualify for pretrial diversion, criminal defendants must show they are both eligible and suitable for the program. A defendant is eligible for diversion if he or she has been diagnosed with a mental disorder that was a significant factor in the commission of the charged offense.

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

Authority:

PEN 1001.36(a), (b)

People v. Bunas (2022) 79 Cal.App. 5th 840, 859-860

Second Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety means an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those violent felonies, commonly referred to as “super strikes,” include murder and attempted murder.

(Gary note: effective 1/1/2027, the language of 1001.36 changes–it drops the reference to section 1170.18, and instead states, “The defendant will not pose a substantial and undue risk to the physical safety of another person, if treated in the community.” That’s a much lower bar for the court to justify a finding that the person poses disqualifying risk.)

Authority:

PEN 1170.18

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

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

Third Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. 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, 448-449

People v. Cluff (2001) 87 Cal.App. 4th 991, 998 [A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence]

Fourth Holding:

We conclude the evidence is insufficient to support the trial court’s finding that defendant poses an unreasonable risk of committing a super strike if treated in the community. The court relied on the underlying charges and defendant’s limited criminal past to find defendant posed an unreasonable public safety risk. Defendant has no history of arrests or convictions for a super strike offense, and the underlying charges were not super strikes.

Authority:

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

Gomez v. Superior Court (2025) 113 Cal.App. 5th 671, 690 [violent conduct alone is insufficient alone to support a finding defendant was likely to commit a super strike offense]

Fifth Holding:

Section 1001.36 provides the trial court with discretion to deny diversion even if it finds a defendant meets the statutory eligibility and suitability criteria. But residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

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

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

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

Sixth Holding:

Here, although the trial court mentioned its residual discretion, its ultimate finding that defendant’s treatment plan was insufficient to address defendant’s mental health disorders did not reflect consideration of the underlying purposes of the statute nor did it explain why diversion would not meet those goals.

As such, we cannot conclude the court properly exercised its residual discretion.

Authority:

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

Vaughn v. Superior Court (2024) 105 Cal.App. 5th 124, 139

Abstracts and Minutes, Duty of the court, Eighth Amendment, Equal protection, Fines and fees, Gary Musings, Sentencing

Case 001128

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the credit for time served. Although the court acknowledged that section 654 applied, it erroneously imposed concurrent sentences rather than staying any. The minute order mentions only that the two counts were stayed, and does not reflect the order for concurrent sentences. The abstract of judgment indicates that the counts were both stayed and to be served concurrently. Remanded for correction of these errors.

First Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

People v. Mullins (2018) 19 Cal.App.5th 594, 612

Second Holding:

Sentences must be stayed to the extent that section 654 prohibits multiple punishment.

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 bars multiple punishment for offenses arising out of a single occurrence where all the offenses were incident to one objective.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for one. It has long been established that the imposition of concurrent sentences is precluded by section 654 because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

(Gary Musing, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term.

(Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, returning to the court the discretion to choose on which count punishment should be imposed and executed.

(There is likely language in one or more of the cases cited below that were decided during the time frame requiring imposition of sentence on the count carrying the longest term. Don’t be misled by that, as the law has changed, restoring the court’s discretion to choose among the counts.)

Authority:

PEN 654

People v. Jones (2012) 54 Cal.4th 350, 353

People v. Deloza (1998) 18 Cal.4th 585, 591

People v. Latimer (1993) 5 Cal.4th 1203, 1208

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

People v. Miller (1977) 18 Cal.3d 873, 887, abrogated on other grounds as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8;

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413

Third Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. This includes partial days. Because an abstract of judgment represents the process and authority for carrying the judgment and sentence into effect, it is paramount that the abstract reflects the appropriate sentence and credits.

Authority:

PEN 2900.5

People v. Bravo (1990) 219 Cal.App.3d 729, 735

People v. King (1992) 3 Cal.App.4th 882, 886

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

Fourth Holding:

At sentencing, the court imposed a $300 restitution fine, pursuant to section 1202.4(b), which it stayed. It also imposed and suspended a parole revocation restitution fine under section 1202.45. The abstract of judgment, however, erroneously lists the fines as $900. It also fails to state the restitution fine is stayed. We therefore order the errors in the amount of the restitution fines be corrected.

Authority:

People v. Lipscomb (2022) 87 Cal.App.5th 9, 22 [a court may only impose one restitution fine per case, so it is error to impose a restitution fine as to each count]

Fifth Holding:

The court also imposed ancillary assessments. We remand to give the defendant an opportunity to demonstrate whether he has the ability to pay, under equal protection principles, inasmuch as the court has the authority to waive such fees entirely in civil matters.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 9, 30

Sixth Holding:

Due process does not require an ability to pay hearing before imposing every punitive fine. Instead, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. Four factors are relevant to determining whether a fine is unconstitutionally excessive: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.

Authority:

U.S. Const., Eighth Amendment

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 11 & fn. 6, 23

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

Duty of the court, Gary Musings, Sentencing

Case 001127

Posted on by Gary McCurdy

Error and/or relief

Whether or not the court had the right to issue a protective order during the proceedings prior to entry of judgment, the court failed to terminate the protective order following the judgment. Remanded for that purpose.

First Holding:

The trial court issued a pretrial criminal protective order on behalf of the victim after the defendant entered his plea. The trial court did not make any findings on the record but ordered no contact with the victim and a 100-yard stay away order There were no objections from counsel. According to the criminal protect order, the orders remain in effect until further court order.

The court had no authority to issue a protective order under section 136.2(a) after sentencing, and it did not issue one. But the order that it made after the guilty plea stated it was to remain in effect until further order of the court, which the court never made. We therefore remand to the trial court to issue a proper notice of termination of protective order so that proper authorities will know that the order has expired.

Authority:

People v. Lopez (2022) 75 Cal.App.5th 227, 236

Second Holding:

Section 136.2 is limited to the pendency of a criminal action because section 136.2 is aimed at protecting only victims or witnesses.

Authority:

PEN 136.2(a)

People v. Selga (2008) 162 Cal.App.4th 113, 118

People v. Stone (2004) 123 Cal.App.4th 153, 159 superseded in statute as stated in Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 960, related to the issuance of restraining orders in domestic violence cases

(Gary Musings:

(This case had an interesting twist. The attorney filed a brief under People v. Wende (1979) 25 Cal.3d 436. A Wende brief is filed when appointed counsel determines that there are no arguable issues to raise in the appeal. After setting forth the statements of the case and facts sufficient to guide the Court of Appeal, the brief asks the appellate court to independently review the entire record to determine whether there are issues that counsel should brief. The defendant is given an opportunity to submit a supplemental brief in which the defendant argues whatever the defendant believes to be an issue.

(The Wende brief process is available only in appointed appeals, and applies only to the first appeal of right–essentially to the direct appeal from the conviction initiated within the timeframe for the filing of a notice of appeal following entry of judgment. Wende was California’s ultimate answer to the U.S. Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738. In essence, I assume there was concern that appointed counsel may have less incentive to go the whole mile for the client.

(Keep in mind we’re talking about conditions more than 60 years ago, around the time Gideon v. Wainwright (1963) 372 U.S. 335 extended the Sixth Amendment right to counsel to the states under the Fourteenth Amendment. While I am certain that there were many attorneys who diligently sacrificed many hours for their indigent client, I also assume that there must have been concern that maybe not all attorneys put in as much effort on appointed cases as they would for their wealthy clients. The independent review of the record by the court was designed to protect the indigent defendants from inadequate effort.

(There’s probably much more to it than I stated, and perhaps I even have missed the mark on why Anders came about. But regardless of what was written, I suspect there was some wink wink nod nod behind the scenes recognizing that some cases demonstrated a tad bit of underrepresentation. Maybe I’m wrong. It doesn’t change the quirk in this case, however.

(By the way, the same concern–whatever it might have been–does not arise with retained counsel. Presumably retained attorneys have a financial incentive to do as much as they possibly can for their clients.

(All that is background–accurate or not–for the twist in this case. The defendant’s supplemental brief essentially was a challenge to his guilty plea. Thus, a certificate of probable cause would normally be required, under section 1237.5 and Rules of Court, rule 8.304(b). Had appointed counsel attempted to raise the arguments the defendant raised on his own, the court would not have been permitted to address the issues, because there is no latitude when an issue requires a certificate of probable cause and one has not been issued.

(But in this case, the court concluded that Wende requires it to conduct a full review of the record and to address with reasons all of the issues presented by the defendant in a supplemental brief. Specifically, in People v. Kelly (2006) 40 Cal.4th 106, the Supreme Court imposed a judicial principle that when an indigent defendant submits a supplemental brief following counsel’s filing of a Wende brief, the appellate court must address all of the issues raised and state reasons for its conclusions on their merits.

(In this case, the Court of Appeal concluded that the lack of a certificate of probable cause was not a bar to its review of the issues raised by the defendant himself in a supplemental brief, in compliance with Wende and Kelly.

(Keep in mind that this is NOT a published opinion, and thus cannot be cited to compel an appellate court to ignore the absence of a certificate of probable cause when reviewing a defendant’s post-Wende supplemental brief. But Wende and Kelly were published opinions, and there’s no reason that I am aware of that counsel could not urge the court to grant a petition for rehearing if the court declined to address the defendant’s supplemental brief issues because of a lack of a certificate of probable cause.)

Authority (the middle two only in Gary Musings):

People v. Wende (1979) 25 Cal.3d 436

Gideon v. Wainwright (1963) 372 U.S. 335

Anders v. California (1967) 386 U.S. 738

People v. Kelly (2006) 40 Cal.4th 106

Immigration, Standard of review

Case 001126

Posted on by Gary McCurdy

Error and/or relief

The defendant’s moved to vacate his guilty plea under section 1473.7, asserting a lack of a knowing and intelligent understanding of the immigration consequences. The court erred in denying the motion, having concluded that, while he did not have an adequate understanding, there was no prejudice. We therefore reverse and remand with directions to grant the motion.

First Holding:

Section 1473.7 enables a defendant who is no longer in criminal custody to bring a motion to vacate a conviction or sentence on grounds the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

To establish eligibility to withdraw a guilty plea under section 1473.7(a)(1), a defendant must show, by a preponderance of the evidence, (1) error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence and (2) that the damage resulted in prejudice.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 613

Second Holding:

The independent standard of review applies to an appeal of an order denying a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. Factual findings and credibility determinations based on the trial court’s personal observation of witnesses are entitled to deference.

However, when, as here, facts derive entirely from written declarations and other documents, no such deference is warranted because the trial court and the appellate court are in the same position with respect to assessing the evidence. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 527-528

People v. Avena (2026) 119 Cal.App.5th 624, 632

People v. Garcia (2022) 79 Cal.App.5th 1059, 1065

Third Holding:

In determining whether a defendant has established error under section 1473.7, the court’s focus is on the defendant’s subjective understanding of immigration consequences at the time of entering a guilty plea. A defendant may establish error by showing the defendant entered a guilty plea without a meaningful understanding of the actual or potential adverse consequences of the resulting conviction or sentence.

The defendant alternatively may show that counsel provided incomplete or inaccurate advice about the plea’s immigration consequences or did not effectively communicate the immigration consequences, so the defendant entered the plea without a meaningful understanding of them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 614

People v. Bravo (2021) 69 Cal.App.5th 1063, 1073 [Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.]

People v. Padron (2025) 109 Cal.App.5th 950, 954–955, 959, 963 [granting the defendant’s section 1473.7 motion in part based on his mental health issues]

Fourth Holding:

A defendant establishes prejudice by showing a reasonable probability the defendant would not have entered the plea if the defendant had correctly understood its actual or potential immigration consequences and their options for defending against those consequences.

A reasonable probability does not mean more likely than not. Instead, it means merely a reasonable chance, which is more than an abstract possibility. In other words, a reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626

Fifth Holding:

We consider the totality of the circumstances in determining whether there is a reasonable probability the defendant would not have pleaded guilty had he meaningfully understood its immigration consequences.

A defendant’s assertion he would not have entered the plea must be corroborated by objective evidence. Objective evidence may be presented through a defendant’s declaration or testimony, declarations or testimony of others, or documentary evidence, including the record of the underlying criminal proceedings.

Objective evidence includes evidence of:

(1) the defendant’s ties to the United States;

(2) the importance the defendant placed on avoiding deportation;

(3) the defendant’s priorities in seeking a plea bargain;

(4) whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible;

(5) the probability the defendant would have obtained a more favorable outcome by rejecting the plea agreement; and

(6) the difference between the bargained-for term and the likely term if the defendant were convicted at trial.

These factors are not exhaustive and no single one is either required for relief or dispositive.

(Gary note: The appellate court dove extensively into information about the defendant to conclude that he was not properly informed and that he did not understand the consequences and that he suffered prejudice. Those details are omitted here because they serve no value as authority.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 626-627

Sixth Holding:

We do not decide whether the defendant would have had reason to believe an immigration-neutral disposition was possible. Because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome.

Where avoiding deportation was the deciding factor for a defendant, there is a reasonable probability that such a defendant would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.

A defendant’s stated interests during plea negotiations are relevant only to the extent that they were based on a full and accurate understanding of the immigration consequences at issue. Consequently, a defendant’s stated interests during plea bargaining can hardly serve as evidence that he didn’t care about immigration consequences when it is undisputed that the defendant was not properly advised.

Authority:

People v. Camacho (2019) 32 Cal.App.5th 998, 1010

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1263, 1270

People v. Manzanilla (2022) 80 Cal.App.5th 891, 912

Elements of crime, Sufficiency of and substantial evidence

Case 001125

Posted on by Gary McCurdy

Error and/or relief

We reverse one of the two counts of robbery for insufficient evidence. The matter is remanded for resentencing.

First Holding:

The defendant and his accomplices broke into a house. The defendant pointed a gun at the homeowner, while one of the accomplices pointed a gun at a sleeping child. They took property and fled. The jury convicted the defendant of two counts of robbery.

Section 211 defines robbery as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

Authority:

PEN 211

Second Holding:

Because the child slept through the entire act, there is insufficient evidence to support a conviction of robbing that child. In cases where the victim’s lack of resistance or unconsciousness is not due to the defendant surreptitiously drugging the victim, but due to the victim’s own actions, the legal authorities and courts of this and other states have found the force element lacking when the defendant takes property from an unconscious victim.

In cases where the evidence showed the defendant took property from a person who was voluntarily asleep or unconscious from drinking, the courts have held the evidence did not support a robbery conviction.

Authority:

People v. Kelley (1990) 220 Cal.App.3d 1358, 1368–1369

People v. Russell (1953) 118 Cal.App.2d 136, 138–139 [theft from drunk, robbery conviction reversed]

Hicks v. State (1974) 232 Ga. 393 [theft from sleeping person; armed robbery conviction reversed]

People v. Jones (1919) 290 Ill. 603 [pickpocket of drunk, robbery conviction reversed]

Hall v. People (1898) 171 Ill. 540 [theft from unconscious drunk, robbery conviction reversed]

Bowling v. Commonwealth (Ky. 1952) 253 S.W.2d 21 [theft from unconscious drunk, robbery conviction reversed]

State v. Cohen (1978) 60 Ohio App.2d 182 [theft from sleeping person, robbery conviction reversed]
People v. Flynn (1984) 123 Misc.2d 1021 [475 N.Y.S.2d 334, 337] [Such activities as rolling a drunk, picking a pocket or snatching a purse from an unsuspecting and unresisting victim may properly bring forth a felony count of larceny from the person; but, because of the lack of physical force involved, these actions will not support any robbery charge.]

Marks v. State (1940) 69 Okla. Crim. 330 [noting the force or fear element is missing when the theft is from one who is helplessly drunk]

Third Holding:

This rule does not apply to carjacking, however, under the rationale expressed in Hill. Unlike robbery, carjacking is more a crime against a person than against property.

Authority:

People v. Hill (2000) 23 Cal.4th 853, 860