Author Archives: Gary McCurdy

Discretion, Standard of review

Case: 000022

Posted on by Gary McCurdy

Error and/or relief

The court imposed an improper burden on the defendant to demonstrate his mental disorder was a significant factor in the charged offense by reversing the statutory presumption in his favor on this issue. Because of this error, the court found defendant failed to prove he was eligible for mental health diversion as provided under Penal Code section 1001.36. Because the court did indeed use an erroneous standard, we will reverse and remand to allow the court to reevaluate the diversion request with a correct understanding of the law.

First Holding:

The prosecution bears burden of proof by clear and convincing evidence that mental health diagnosis was not a causal factor in the crime.

Authority:

PEN 1001.36

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Second Holding:

The court reviews the trial court’s denial of a request for mental health diversion for abuse of discretion.

Authority:

Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1016

People v. Moine (2021) 62 Cal.App.5th 440, 448–449

Third Holding:

Diversion is discretionary, even if eligibility and suitability are present.

Authority:

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

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

Fourth Holding:

If eligibility is established, the trial court must then consider whether a particular individual is suitable, by rendering a positive finding on each of four factors: (1) that in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder would respond to mental health treatment; (2) that the defendant consent to diversion and waive speedy trial rights; (3) that the defendant will agree to comply with treatment as a condition of diversion; and (4) that the defendant will not pose an unreasonable risk of danger to public safety, which is defined as the likelihood the defendant would commit a new violent felony from a limited subset of particularly violent crimes, colloquially referred to as a “super strike.”

Authority:

PEN 1001.36(c)(4)

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

Amelioration, Sentencing, Standard of review

Case 000021

Posted on by Gary McCurdy

Error and/or relief

The timing of the defendant’s plea does not preclude him relief under section 1172.6 because, at the time of his plea, he could have been convicted under invalidated theories of attempted murder. We also find his admissions, including his admission to acting with an intent to kill, did not establish all the elements of a valid theory of attempted murder under current law. Accordingly, we reverse the summary denial of his petition and remand for further proceedings.

First Holding:

Where a petition states eligibility on its face, and the court examines the record of the conviction suggesting otherwise, the defendant must be given an opportunity to file an amended petition.

Authority:

People v. Patton (2025) 17 Cal.5th 549

Second Holding:

Effective January 1, 2019, Senate Bill 1437 amended the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

Authority:

SB 1437

SB 775

PEN 1172.6
People v. Lewis (2021) 11 Cal.5th 952, 959

Third Holding:

At the prima facie hearing, the trial court may examine the record of conviction to assess whether it refutes a defendant’s claim of eligibility.

Authority:

People v. Patton (2025) 17 Cal.5th 549

Fourth Holding:

It is only where the record of conviction establishes the petition lacks merit as a matter of law that the court may deny the petition without a hearing

Authority:

People v. Lopez (2023) 88 Cal.App.5th 566, 576

Fifth Holding:

When the defendant’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea and the defendant’s express admissions at the plea colloquy.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211–1212

People v. Fisher (2023) 95 Cal.App.5th 1022, 1029

(Disagreeing) People v. Glass (2025) 110 Cal.App.5th 922

Sixth Holding:

If the trial court denies the petition without issuing an order to show cause, it must state its reasons.

Authority:

PEN 1172.6(c)

Seventh Holding:

We independently review a summary denial of a section 1172.6 petition for resentencing.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206

Duty of the court, Sentencing

Case: 000020

Posted on by Gary McCurdy

Error and/or relief

Following a revocation of probation, the defendant was sentenced to state prison. The trial court erred in not obtaining a probation report before sentencing him. The error was prejudicial. We reverse.

First Holding:

Absent written stipulation (or oral if in open court), the court must refer the matter to probation after probation has been revoked. The preparation of the report of the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto.

Authority:

PEN 1203(b)(1)

PEN 1203(b)(4)

Second Holding:

The purpose of a probation report is to advise the court of the circumstances surrounding the crime and to provide information about the defendant’s history and record.

Authority:

People v. Llamas (1998) 67 Cal.App.4th 35, 40

Third Holding:

Prejudice is measured under Watson.

Authority:

People v. Watson (1956) 46 Cal.2d 818

People v. Dobbins (2005) 127 Cal.App.4th 176

Fourth Holding:

A stipulation to waive referral to probation must appear in the minutes

Authority:

PEN 1203(b)(4)

Appellate Principles

Case 000019

Posted on by Gary McCurdy

Error and/or relief

GARY Note: There is not much discussion in this case. Benoit relief was granted on a petition for writ of habeas corpus seeking a finding that the notice of appeal was deemed constructively filed timely. That process is potentially available to a defendant whose notice of appeal was NOT filed with the 60 days (for a felony, 30 days for a misdemeanor), if certain conditions exist. The conditions are:(a) the defendant has been incarcerated during the entire period that a notice of appeal may be filed; (b) during that period the defendant requested that the attorney file one (or the attorney has otherwise conveyed to the defendant that the attorney will file the notice of appeal); and (c) the attorney failed to timely file the notice of appeal. The defendant may file a petition for writ of habeas corpus in the appellate court and ask that the court deem the notice of appeal to have been constructively filed timely. Although not discussed in this case, Benoit relief is generally NOT granted if the defendant was NOT in custody the entire 60 days, OR if the defendant did not ask the attorney within that 60 days to file a notice of appeal. Other than the reference to the Benoit case, the opinion does not contain any authority. I have added the two pertinent rules from the Rules of Court and a few case citations, none of which appears in the opinion, but I think it’s valuable to understand the importance of meeting that jurisdictional requirement.

First Holding:

Habeas relief can determine whether a notice of appeal should be deemed timely constructively filed.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

In felony cases, the notice of appeal must be filed within 60 days. In appeals from guilty pleas, any required certificate of probable cause must also be filed within 60 days. No court may extend the time to file a notice of appeal.

Authority:

Rules of Court rule 8.308

Third Holding:

In misdemeanor appeals, the notice must be filed within 30 days.

Authority:

Rules of Court rule 8.393

Fourth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal. An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion. [Gary note: Under Benoit, for an incarcerated person who, within that 60-day period, attempts to get the notice of appeal filed, a court that grants relief technically deems that the notice of appeal was constructively filed timely. Under that legal sense, it is not considered a late notice of appeal. In effect, the court is treating the timely attempts by the incarcerated defendant as the “functional equivalent”–MY description, NOT a court’s description–of filing a notice of appeal.]

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094

Sentencing, Sixth Amendment

Case 000018

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the Sixth Amendment by imposing upper term sentences; the issue was not forfeited, and as the People concede, the court erred and the error was not harmless.

First Holding:

The Sixth Amendment right to jury trial applies to any factor that may increase the sentence or range of sentence. In Wiley, our Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of the holding in Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, the court interpreted] section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

Erlinger v. United States (2024) 602 U.S. 821

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Second Holding:

Failure to object generally results in forfeiture and can apply to constitutional claims.

Authority:

People v. Stowell (2003) 31 Cal. 4th 1107, 1114 [The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court]

People v. Scott (2015) 61 Cal.4th 363, 406 [A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial]

People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]

People v. Achane (2023) 92 Cal.App.5th 1037

Third Holding:

A claim of violation of Sixth Amendment right to trial is not forfeited by lack of objection as it requires express consent in open court by both the defendant and the defense attorney.

Authority:

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

An appellate court can exercise discretion to address a forfeited issue.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fifth Holding:

Unless stipulated to by the defendant, before the factors in aggravation may be used to justify imposition of the upper term, the defendant has the right to a jury trial to determine whether the factors have been proved beyond a reasonable doubt that the defendant has engaged in violent conduct that indicates a serious danger to society or that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1086

People v. Lynch (2024) 16 Cal.5th 730, 776

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case 000017

Posted on by Gary McCurdy

Error and/or relief

We reverse the court’s denial of the resentencing petition, which was not based on a review of the record, and remand for further proceedings under section 1172.6(c).

First Holding:

The trial court may deny a section 1172.6 petition at the prima facie stage only if the petition and record in the case establish conclusively that the defendant is ineligible for relief as a matter of law. If a petitioner files a facially sufficient section 1172.6 petition by indicating, among other criteria, that he meets the statutory requirements for relief,it triggers the prosecution’s duty to submit a response and the petitioner’s right to file a reply on the issue of whether a prima facie case for relief exists.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262
People v. Strong (2022) 13 Cal.5th 698, 707
People v. Rodriguez (2024) 103 Cal.App.5th 451, 456
People v. Patton (2025) 17 Cal.5th 549, 558–559

Second Holding:

The record of conviction includes documents from jury trial such as jury instructions and verdict forms.

Authority:

People v. Gallardo (2024) 105 Cal.App.5th 296

Third Holding:

We review an order denying a petition at the prima facie stage de novo.

Authority:

People v. Hickman (2025) 110 Cal.App.5th 1262

Fourth Holding:

The right to seek replacement of counsel under Marsden applies at all stages of a criminal proceeding.

Authority:

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

People v. Carter (2024) 15 Cal.5th 1092, 1096 [Marsden motion sought disqualification of the public defender’s office and individual deputy public defender]

Fifth Holding:

The record of conviction will inform the court’s prima facie inquiry, allowing the court to distinguish clearly meritless claims.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971

 

Jurisdiction, Probation Parole PRCS

Case 000016

Posted on by Gary McCurdy

Error and/or relief

Assembly Bill No. 1950 (2019–2020 Reg. Sess.) applied retroactively to shorten the defendant’s probation term from four years to two years, thereby retroactively depriving the trial court of jurisdiction to revoke his probation after passage of the two-year mark and rendering the revocation and termination of his probation invalid. [GARY NOTE: Penal Code sections 1203a for misdemeanors and 1203.1 for felonies, and there are exceptions to the one-year and two-year periods mentioned in those sections, so be sure to look at the actual applicable statute if the issue arises.]

First Holding:

Acts committed after the statutory shortening of the length of the probation term do not constitute violations of probation.

Authority:

AB 1950

People v. Faial (2025) 18 Cal.5th 199

Duty of counsel, Uncategorized

Case 000015

Posted on by Gary McCurdy

Error and/or relief

You might want to draw a cuppa joe for this one.  It’s probably less related to criminal law practice than it is to law office management with regard to criminal clients.  The “Eighth Holding” is not a holding in the opinion, but some speculative observations by me. This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already). And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation. What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I don’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.

First Holding:

Counsel has a duty to turn over client’s file to client.

Authority:

State Bar proposed opinion 19-0004 (duty to retain files while client is alive)
State Bar Rules of Professional Conduct rule 1.16

Second Holding:

As of 1/1/26, Penal Code section 1054.9 was be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment.

Authority:

PEN 1054.9

Barnett v. Superior Court (2010) 50 Cal.4th 890

People v. Superior Court (Morales) (2017) 2 Cal.5th 523

Satele v. Superior Court (2019) 7 Cal.5th 852

Third Holding:

Review of nonappealable order is by petition for writ of mandate.

Authority:

In re Steele (2004) 32 Cal.4th 682, 692 [after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal]

Fourth Holding:

The appellate Court can treat the appellate opening brief as a petition for writ of mandate.

Authority:

Olson v. Cory (1983) 35 Cal.3d 390, 401

Shrewsbury Management Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222

Fifth Holding:

Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel.

Authority:

Legislative history, AB 1987 in 2018

Sixth Holding:

The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney.

Authority:

Rose v. State Bar (1989) 49 Cal.3d 646, 653–655

White v. Molfetta (2021) 64 Cal.App.5th 628

Seventh Holding:

Section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.

Authority:

PEN 1054.9

Eighth Holding:

Well, not exactly a holding in the opinion, but here’s exactly what 1054.9(g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”  I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.”

That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.”

The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows: “Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.”

Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration.

Authority:

Not much of one, Just Gary’s Brain

Discretion, Standard of review

Case 000014

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant contends that the trial court abused its discretion in denying her petition for mental health diversion. We agree that the court applied an incorrect legal standard in ruling on her petition. And we disagree with the People that we can imply from the court’s ruling the missing findings required by the statute. We thus conditionally vacate her no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First Holding:

A trial court abuses its discretion when it applies the wrong legal standard. Application of an incorrect legal standard on Mental Health Diversion requires reversal.

Authority:

PEN 1001.36(c)

Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 584 [trial court applied an incorrect legal standard when it did not apply one of the essential components for deciding whether fees should be awarded under the applicable fee statute]

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

Second Holding:

The court reviews denial of Mental Health diversion under the abuse of discretion standard. 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

Third Holding:

There is a presumption of correctness in court orders. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew and applied the law. When the record clearly demonstrates what the trial court did, we will not presume it did something different.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Lafayette Morehouse Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384

Paterno v. State of California (2003) 113 Cal.App.4th 998, 1015

Sentencing

Case 000013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating defendant’s custody credits. Because he participated in the sober living program pursuant to a court order, he is entitled to custody credit for the time he spent there. The People concede this issue. We agree with the parties.

First Holding:

Credit for time served that is miscalculated must be corrected.

Authority:

PEN 2900.5(a)

Second Holding:

Involuntary time in treatment counts as credit for time served when attributable to the criminal proceedings.

Authority:

People v. Davis (2023) 87 Cal.App.5th 771, 777 [Section 2900.5 has two components: First, that the placement be custodial, and second, that the custody be attributable to the proceedings relating to the same conduct for which defendant has been convicted]

People v. Billy (2024) 107 Cal.App.5th 246, 262-264, [Defendant’s voluntary stay at a rehabilitation facility did not qualify for custody credit under section 2900.5]

Fines and fees, Sentencing

Case 000012

Posted on by Gary McCurdy

Error and/or relief

The restitution fine must be vacated because it was originally imposed more than 10 years ago. The court must calculate the actual time the defendant has already served and credit that against the subsequent sentence.

First Holding:

Restitution fines are uncollectible after 10 years.

Authority:

PEN 1465.9

Second Holding:

The court must recalculate credit for time served on resentencing.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case 000011

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially committed constitutional and statutory error in imposing the upper term sentence based on aggravating factors not tried to the jury. The factors relied on were: the victim’s particular vulnerability; the offense was carried out with planning, sophistication, and professionalism; the defendant engaged in violent conduct which indicated a serious danger to society; the defendant had numerous prior convictions and they were of increasing seriousness.

First Holding:

The defendant is entitled to a jury trial on aggravating factors, which must be proved beyond a reasonable doubt before they can be relied on to impose the upper term (unless they are stipulated to by the defendant).

Authority:

PEN 1170

Second Holding:

The standard of review for evaluating the improper use of untried aggravating fact is whether error was harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18

Erlinger v. United States (2024) 602 U.S. 821

Apprendi v. New Jersey (2000) 530 U.S. 466

People v. Lynch (2024) 16 Cal.5th 730

Third Holding:

The parties agree the court erred in relying on those circumstances to impose the upper term on the principal count. Their disagreement centers around whether such error was prejudicial under the circumstances. On the record before us, we conclude it was.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. French (2008) 43 Cal.4th 36, 47